The appeal
28 The sole ground in the draft notice of appeal was as noted above (at [21]). The applicant did not file written submissions as directed but the materials show that he claims to have a well-founded fear that, if returned to Iran, he faces a real chance of serious harm at the hands of Iranian authorities because of an imputed or actual anti-Iranian regime political opinion. He claims that imputed or actual anti-regime opinion arose generally from the matters noted above (at [4]-[6]), and that his Facebook posts after leaving Iran show that he continued to hold anti-regime political beliefs. He claimed that the Iranian authorities would be aware of his continuing political beliefs because they monitor social media platforms to identify dissidents.
29 Before the Federal Circuit Court the applicant conceded that the Tribunal dealt with his express claim that he would be at risk of serious harm from the Iranian authorities on the basis of his social media activity whilst in Australia. The Tribunal did so by having regard to the nature of the applicant's Facebook posts about which the applicant had provided evidence, and by considering relevant country information. It found that the applicant's Facebook comments were "reasonably moderate" and "relatively innocuous" in nature and made in response to posted articles that had attracted hundreds or thousands of other responses. The Tribunal was not satisfied that the Facebook posts would attract adverse attention from Iranian authorities.
30 Before the Federal Circuit Court:
(a) the applicant accepted that it was open to the Tribunal to conclude, as it did, that the applicant's Facebook comments would not be sufficient to give rise to an adverse profile with the Iranian authorities; and
(b) did not expressly state that if he was sent back to Iran he would or may continue to post comments online along the lines of his earlier Facebook posts
: see primary judgment at [26] and [43].
31 The applicant however submitted that it was obvious that a person who had made anti-regime social media posts may continue to do so in the future and therefore the claim now framed by the applicant was raised on the material before the Tribunal, and required to be considered and addressed. The applicant argued that the Tribunal had fallen into jurisdictional error by failing to evaluate whether he might continue to make anti-regime statements upon return to Iran, and failing to consider whether as a result there was a real chance that he might suffer serious harm at the hands of Iranian authorities if so returned.
32 It was common ground before the primary judge that the applicant did not expressly articulate a claim that he might, on return to Iran, engage in anti-regime political activities and would as a result face a real chance of serious harm at the hands of Iranian authorities. The Tribunal's review function was however inquisitorial rather than adversarial. If evidence and material which the Tribunal accepted raised a case that was not expressly articulated the Tribunal was required to deal with that case rather than limit its determination just to the case which was expressly raised: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ).
33 In NAVK v Minister for Immigration and Multicultural Affairs [2004] FCA 1695 at [15] Allsop J (as his Honour then was) referred to the decision in NABE. His Honour said that the decision:
…dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated... From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it... As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
(Emphasis added.)
His Honour's observations were approved in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70] (Mansfield, Gilmour and Foster JJ).
34 The primary judge found (at [47]-[49]) that while the Tribunal was required to be "future focused" when assessing whether the applicant will face a real chance of serious harm on account of his anti-regime political beliefs, that did not extend to a requirement to speculate about what the applicant may or may not do at some point in the future. Her Honour held that the claim the applicant contended had been raised on the material before the Tribunal did not emerge clearly from the material, and the Tribunal was not obliged to consider it. Her Honour therefore dismissed the application.
35 A difficulty with deciding this appeal was that the applicant did not file written submissions in relation to the appeal and he appeared for himself, without legal representation, at the resumed hearing. While he had an interpreter for the hearing, his oral submissions in relation to the question of jurisdictional error were, understandably enough, of limited assistance. Even so, and having taken those matters into account, I discerned no jurisdictional error in the Tribunal's decision nor appealable error in the reasons of the primary judge.
36 First, the applicant failed to attend the Tribunal hearing, notwithstanding that his representative was advised of the hearing and the Tribunal sent SMS messages directly to him informing him the hearing. Other than to complain about the quality of the representation he received he has not offered an explanation for this failure. The Tribunal therefore considered his visa application on the materials before it, which materials did not include any evidence that he might engage in anti-regime political statements or activities if he was returned to Iran. The Tribunal observed that, had the applicant attended the hearing, it would have queried him further about his social media activities, and because he did not do so the Tribunal could only assess the evidence and submissions before it.
37 Second, the Tribunal noted that the applicant did not claim to have previously been involved in any anti-regime political activities in Iran. The applicant made it clear that neither he nor his family had ever been involved in political activities or protests or spoken out publicly against the Iranian government, which also pointed away from the Tribunal being required to consider whether he might express anti-regime political beliefs in the future.
38 Third, the only expression by the applicant of any anti-regime opinion was in some Facebook posts while the applicant was in Australia. The Tribunal described them as "likely to be considered as anti-government" but that they were "relatively innocuous" and "reasonably moderate". There was no evidence from which the Tribunal could have concluded that, upon return to Iran, the applicant might engage in anti-regime political activities which were more likely to attract adverse attention from the Iranian authorities. In the circumstances the Tribunal was not required to speculate on the potential that the applicant might engage in such political activities. That is particularly so in circumstances where the applicant was represented throughout both the visa application and judicial review process.