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[2018] FCAFC 89
respondent. The appeal be dismissed. The Appellant pay the costs of the First Respondent, to be assessed if not agreed.
1 cited instrument linked from this judgment.
An Afghan man who worked for an elections body and a satellite TV company claimed the Taliban had threatened him and that he feared return. The IAA believed he had done the jobs but did not believe the threats ever happened, decided any past risk was now gone, and said he could get different computer work without changing who he fundamentally was. He argued the IAA should have realised he would have to tell new employers about his old jobs, which might get back to the Taliban. The Full Federal Court said this extra scenario was too speculative, had never been mentioned even though he had every chance to raise it, and was covered by the IAA's overall finding of no risk. The court dismissed his appeal, confirming that decision-makers only have to chase issues that obviously jump out from the actual facts, not every possible 'what if'.
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The appellant, a 28-year-old Tajik national from Afghanistan, arrived in Australia as an unauthorised maritime arrival in December 2012. In his Safe Haven Enterprise Visa application he advanced a protection claim under s 5J(1) of the Migration Act 1958 (Cth), asserting a well-founded fear of serious harm from the Taliban. The fear was said to arise from two periods of past employment: first as a computer operator with the Independent Election Commission of Afghanistan (IEC) in 2009, where he used a pseudonym but claimed his family received a Taliban letter demanding he resign, followed by phone threats and the shooting of a colleague; and secondly with Dish TV installing satellite cabling at Kabul International Airport, where he claimed further phone threats from two men accusing him of not being a Muslim and urging him to join jihad. He also relied on his profile as a returned asylum seeker from a Western country. Supporting material included Amnesty International and Human Rights Watch reports on Taliban targeting of government and aid workers, plus Smartraveller advice noting attacks near Kabul airport.
A delegate refused the application on 11 October 2016. The matter was automatically referred to the Immigration Assessment Authority (IAA) under s 473CA. On 1 March 2017 the IAA affirmed the refusal. At [40]-[46] the IAA accepted the appellant had worked for the IEC and Dish TV but, citing inconsistencies, chronological gaps, implausibility of his actions, and the potential for document fraud, found his claims of Taliban threats not credible. It did not accept that he or his family had ever been threatened. While acknowledging that IEC employees at polling stations in 2009 and workers for international or government organisations faced general risks, the IAA emphasised the appellant's non-public, low-profile IEC role, the short duration of his Dish TV employment, and the passage of time since he left Afghanistan. It concluded that any limited adverse profile had dissipated and posed no real chance or risk of harm on return. Critically, the IAA found as a question of fact that the appellant would not seek similar employment and could instead find unrelated computing or technology work, or could take reasonable, minor steps to modify his conduct without infringing s 5J(3).
The appellant sought judicial review in the Federal Circuit Court of Australia, arguing the IAA had fallen into jurisdictional error by failing to consider an obvious issue said to arise from its own findings: whether, in seeking computing or technology employment, he would need to disclose his IEC and Dish TV history, potentially allowing that information to reach the Taliban and create a future risk. The primary judge dismissed the application, holding that the contended claim was speculative, had not been advanced before the delegate or IAA, and did not clearly emerge from the materials or the IAA's findings. His Honour distinguished Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537 on the basis that, unlike the accepted "bagman" role in that case, the present IAA had rejected the threats and the suggested future disclosure scenario rested on unsupported assumptions about employer behaviour.
On appeal to the Full Federal Court (Collier, McKerracher and Banks-Smith JJ), the appellant maintained that the issue of future disclosure clearly arose from the IAA's acceptance of his work history and its finding that his roles had carried "some risk". The Full Court rejected the argument. It held that the specific chain of possibilities (disclosure to prospective employers, those employers passing information to the Taliban, and the Taliban acting on it) had never been articulated despite the appellant being represented, the delegate's adverse findings, and the IAA's practice direction inviting submissions. The scenario was not based on established facts but on speculation, and was in any event subsumed within the IAA's comprehensive finding at [43] that any limited adverse profile posed no real risk of harm. The appeal was dismissed with costs on 18 June 2018.
The Full Court's reasoning is anchored in the settled principles governing the inquisitorial obligation of migration review bodies. At [18] the Court restated that the IAA, like the former Refugee Review Tribunal or Administrative Appeals Tribunal, must consider all claims made by an applicant and their essential integers (Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42]). However, the obligation is not open-ended. Drawing directly on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [55] and [68], and its application to the IAA in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [79], the Court held that only claims or issues that are the subject of substantial, clearly articulated argument on established facts, or that "clearly emerge" from the materials, engage the duty.
The Court accepted that this obligation can extend to matters arising from the IAA's own findings, citing Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 at [27]. Nevertheless, a finding that a claim "clearly emerges" is "not to be made lightly" (NABE at [68]) and requires the claim or issue to be based on established facts rather than conjecture (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 at [37]-[38], applied at [18]). The Court emphasised that assessment cannot occur in a vacuum but must have regard to how the claims were presented over time, including the opportunities given to the appellant.
On the facts, the appellant had never suggested in his initial statement, statutory declaration responding to the delegate, or submissions to the IAA that future employers would require disclosure of his IEC and Dish TV roles, that such employers would pass that information to the Taliban, or that the Taliban would then harm him. The delegate had expressly found no personal threat and no real risk on return; the IAA's practice direction invited submissions on why that was wrong. The appellant was represented throughout. In those circumstances the Court considered it "more difficult to persuade the Court" that an unarticulated matter clearly emerged ([30]).
The IAA's reasons at [40]-[46] were read as comprehensive. Having rejected the threats as fabricated, the IAA nevertheless gave the appellant the benefit of country information and accepted that his past roles "would have carried some risk" ([43]). It then found that risk had been mitigated by the low-profile and short-term nature of the work and the passage of time, such that any limited adverse profile posed "no risk or chance of harm" on return. The further finding that the appellant could seek unrelated computing or technology work or make "reasonable steps to modify his conduct" was expressly tied to s 5J(3) and found not to conflict with any fundamental characteristic. The Court held that this reasoning embraced even the hypothetical future acquisition of a profile; the contended disclosure issue was therefore not an integer that had been overlooked but a speculative layer that had never been squarely raised.
Tharmalingam was distinguished because there the Tribunal had accepted the applicant's bagman activities for the LTTE and the appellant had clearly articulated a fear that his role might be discovered by the CID. The present case lacked both the accepted factual foundation for future harm and any articulation of the disclosure mechanism. The Court concluded that the primary judge had correctly applied NABE and that no jurisdictional error was shown. The appeal was dismissed.
Prior to this judgment the law was settled by NABE, which itself drew on earlier authorities such as Htun, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. Those authorities established that an inquisitorial tribunal must address the case actually advanced, including its essential components, but is not required to hunt for every possible claim that might arguably arise by conjecture. NABE crystallised the test: a tribunal must deal with a claim that is either clearly articulated on established facts or that "clearly emerges" from the materials. Subsequent decisions such as AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 and SZUTM reinforced that the emergence must be plain on the face of the material and rest on established rather than assumed facts. BBS16 confirmed that these principles apply without modification to the IAA despite the more constrained statutory regime in Pt 7AA (ss 473CA, 473CC, 473DB).
This judgment did not alter the pre-existing law. Instead it applied it rigorously to the IAA context and to a claim said to arise from the IAA's own findings rather than from the visa applicant's express articulation. By emphasising that the threshold is high, that speculation is insufficient, and that the opportunities given to a represented applicant are relevant to whether a matter "clearly emerges", the Full Court reinforced the practical limits of the NABE obligation. It confirmed that an IAA decision-maker is not required to address every hypothetical future risk scenario that sophisticated counsel can later construct on judicial review.
The judgment also left open, as unnecessary to decide, whether there is a meaningful distinction between a "claim" (an assertion of fact) and an "issue" (a topic or question to be resolved). While acknowledging that SZBEL and SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 treat the terms as sometimes interchangeable and sometimes distinct, the Court held that on the facts before it the distinction was immaterial because the contended matter satisfied neither description.
After the decision, the law remains as stated in NABE but is now buttressed by an authoritative Full Court statement that (a) the obligation extends to the IAA's own findings, (b) the requirement for established facts is strict, and (c) the provision of an opportunity to respond to a delegate's reasons is a significant contextual factor telling against later assertions that an issue clearly emerged. The judgment has become a frequently cited reference point for the proposition that unarticulated future-risk scenarios resting on multiple layers of supposition will rarely meet the "clearly emerges" test.
At [18] the Court set out the governing principle:
"The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers … The Tribunal is only required to consider such claims where they are either: (a) the subject of substantial clearly articulated argument, relying on established facts; or (b) clearly emerge from the materials … These principles apply to the IAA regime."
Plain English: Decision-makers must deal with what an applicant actually says and the real building blocks of that case. They do not have to chase every faint possibility. The same rule applies to the fast-track IAA process.
At [25], distinguishing Tharmalingam:
"Tharmalingam is distinguishable … In Tharmalingam, Mr Tharmalingam put forward claims before the Tribunal and clearly articulated his fear of being persecuted by the CID because of his imputed profile as an LTTE supporter. Even if not clearly articulated, those claims certainly squarely emerged on the materials before the Tribunal."
Plain English: In the earlier case the applicant had actually said he feared discovery of his LTTE links. Here the appellant never mentioned the specific future disclosure problem, so the IAA was not required to invent it.
At [28]-[30] the Court addressed the facts:
"The threshold question is whether the claim … squarely arose from the materials … In our view, this cannot be said to be an integer or an issue squarely or clearly arising on the materials before the IAA, either from its own findings or from the claims or facts accepted and advanced by or on behalf of the appellant … The established fact was that the IAA had reached the conclusion that 'any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country'."
Plain English: The judge asked whether the new argument was obvious from what was already on the table. The answer was no. The appellant never suggested employers would shop him to the Taliban. The IAA's broad finding of no future risk covered the field.
At [43] of the IAA reasons (extracted at [9]) the critical finding appears:
"I accept that his role with the IEC would have carried some risk, as potentially did his role at Dish. I find those risks were likely mitigated by the low profile nature of his role with IEC … Having regard to the time that has passed since he worked at both places, I find that any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country."
Plain English: Even though the old jobs carried some danger at the time, that danger has faded. The appellant no longer has a profile that the Taliban would care about or be able to act upon.
These passages, read together, show the Court insisting on a concrete, evidence-based link between the IAA's actual findings and any additional obligation said to arise.
This precedent is triggered when a protection visa applicant, having lost before a delegate and the IAA, asserts on judicial review that the IAA overlooked an "obvious" future risk said to arise from the IAA's acceptance of certain historical facts (for example, past employment or a particular profile). The typical pattern involves: (1) the IAA rejecting the applicant's core narrative of past harm but accepting some underlying factual elements such as employment history; (2) the applicant then arguing that those accepted elements logically give rise to a further risk (for example, the need to disclose that history to new employers, landlords or officials); (3) that further risk never having been articulated to the delegate or IAA despite explicit invitation to comment on the delegate's reasons; and (4) the asserted risk depending on a chain of suppositions rather than established country information or the applicant's own evidence.
The precedent makes clear that such a pattern will not ordinarily engage the NABE obligation. It will not be enough that the risk is "realistic" or "common sense" in the eyes of counsel on judicial review. The risk must "clearly emerge" on the face of the material actually before the IAA and rest on established facts, not speculation. Representation, the existence of a statutory declaration responding to the delegate, and an all-encompassing IAA finding of no real risk are all factors that weigh against a later finding that the issue clearly arose. The precedent is therefore most commonly deployed by Ministers to resist "obvious issue" grounds that seek to impose a duty to consider layered hypothetical scenarios never put to the decision-maker.
Although the judgment itself does not cite subsequent authority, its careful application of NABE and BBS16 to the IAA's inquisitorial function has reinforced the strictness of the "clearly emerges" test. Courts applying this decision have treated the IAA's comprehensive "no real risk" finding at [43] as an all-encompassing answer that subsumes speculative future scenarios. The emphasis at [30] on the appellant's failure to raise the disclosure issue despite multiple opportunities has been used to highlight the forensic difficulty faced by represented applicants who seek to expand their claims on judicial review. The distinction drawn with Tharmalingam has been followed in cases where a tribunal has expressly rejected the factual premise of past harm; in such circumstances the tribunal is not required to explore every possible way that harm might arise in the future.
The judgment's acceptance that the NABE obligation extends to a decision-maker's own findings (citing ACE15) has been treated as confirmatory rather than novel. Later courts have nevertheless read that acceptance narrowly, consistently with the Full Court's insistence that the emerging claim must still be based on established facts and not amount to "pure speculation". The obiter discussion of the claim/issue distinction at [27]-[28] has been noted but not treated as resolving the debate; subsequent decisions continue to use the terms with the caution this judgment endorsed. Overall, the decision has been treated as confirming a robust, practical limit on the scope of the IAA's duty, protecting its decisions from being overturned on the basis of ingenious but unarticulated future-risk theories.
The judgment expressly left open whether there is a legally significant difference between a "claim" and an "issue" for the purposes of the NABE obligation. At [27]-[28] the Court noted that an "issue" might be a broader topic to be resolved (as in SZBEL at [47]) while a "claim" is an assertion of fact (Htun at [42]), but concluded that the distinction did not matter on these facts. That question therefore remains for a future case in which the difference could affect the outcome.
A further open question is the precise content of the IAA's obligation when a finding is genuinely unpredictable because the IAA process does not ordinarily involve a hearing. The appellant argued that, because he could not know the IAA would accept his employment history while rejecting the threats and then posit unrelated future employment, he could not have been expected to address the disclosure risk. The Court did not need to decide how far that procedural difference affects the "clearly emerges" assessment, noting only that the appellant had still been given a formal opportunity to comment on the delegate's reasons. The boundaries of that opportunity, and whether an IAA applicant can ever successfully argue that a particular finding was so unexpected that a related issue must still be taken to have clearly emerged, were not finally determined.
Finally, the interaction between the s 5J(3) modification-of-behaviour assessment and unarticulated future-risk scenarios remains incompletely explored. The IAA found that any modification required of the appellant would be reasonable and would not contravene s 5J(3)(c). Whether an IAA that makes such a finding is nevertheless obliged to consider, without prompting, every possible way that modified behaviour might still create a new risk profile was not required to be decided. These questions continue to test the limits of the NABE principle in the streamlined IAA regime.
Introduction 1 This appeal raises for consideration the question of the duty of the second respondent, the Immigration Assessment Authority (IAA) to consider claims and/or issues that arise from its own findings. In the context of this case, the issue that was said to clearly arise from the IAA's findings was whether the appellant, if returned to Afghanistan, would be able to find work utilising his particular skill set without disclosing certain previous employment and thereby potentially placing himself at relevant risk. The case also raises an issue as to whether there is a relevant difference between claims raised and issues arising in the course of claims being raised. For the reasons which follow, it is our view that the IAA properly discharged its duties.
Background 2 The appellant aged 28, is a national of Afghanistan and of Tajik ethnicity. He arrived in Australia by boat in December 2012 as an unauthorised maritime arrival. 3 In the Statement of Claims accompanying his application for a Safe Haven Enterprise Visa (SHEV), the appellant spoke generally of his history of receiving threats from the Taliban, but specifically of this arising from his employment, first, as a computer operator for the Independent Election Commission of Afghanistan (IEC) in 2009 and then, secondly, for a foreign company, Dish TV, providing satellite television cabling to foreigners. The appellant's contention was that his employment had attracted the enmity of the Taliban. Specifically, the appellant claimed that when he commenced employment with the IEC, he was allocated a pseudonym, but that about one and a half months after he started employment, his family received a letter from the Taliban demanding that he leave the IEC. He received another threat by phone and shortly afterwards a work colleague was shot and killed by the Taliban after receiving threats. The appellant claimed that he had not returned to work for almost two weeks after his colleague's death, changing his phone number and address before doing so. While the appellant experienced a few months without trouble, he then claimed to have received a threatening phone call on his mobile phone from a Taliban member. His father subsequently informed him that one of his colleagues had been taken by the Taliban. The appellant then went to New Delhi for a month and then returned to Kabul, married and left the job at the IEC when told the position was no longer available. He then started working for Dish TV, operating out of Kabul International Airport. 4 A month after commencement at Dish TV, the appellant claimed he received a threat on the phone by two men who said that he was not a Muslim. They told him that it would make no difference whether he continued to work for Dish TV or not because they had decided what to do with him and that if he wanted to stay alive he should join them for Jihad. He returned to India with his wife and found that he could not settle there, so he returned to Afghanistan. With the help of a people smuggler, he left that country and eventually came to Australia. He claimed to fear harm if returned to Afghanistan because of his employment with the IEC and Dish TV and also because he would be a returned asylum seeker from a western country. 5 Documentation submitted with the application included an Amnesty International Report with information that the Taliban were deliberately targeting people associated with the government and that there had been 150 attacks on aid workers over nine months in 2015. The appellant's supporting documentation also included a Human Rights Watch Report which stated that the Taliban had vowed to kill government officials and Afghans working for aid organisations. The Australian government "Smartraveller" website was also submitted and reported that the Kabul International Airport, and roads leading to it, were often under attack. 6 The appellant's application was refused on 11 October 2016 by a delegate of the Minister for Immigration and Border Protection and the matter was referred to the IAA by operation of law under s 473CA of the Migration Act 1958 (Cth).
Review by the IAA 7 By a Notification of Decision letter dated 1 March 2017, the appellant was informed that the IAA had decided to affirm the decision of the delegate under review. 8 The IAA accepted that the appellant had worked for the IEC and Dish TV, but because of significant problems with the appellant's evidence, including the fact that the IAA did not accept that the Taliban had made any threats to him at any time, the IAA did not consider that the employment concerned would pose any difficulty in the future. 9 The findings of the IAA (at [40]-[46]) of its reasons are central: 40. I find that inconsistencies, and the significant gap in his timeline, are further and separate evidence that these claims are not true. Having regard to my concerns with the implausibility of his actions in the face of these threats, the potential for document fraud in Afghanistan, and the irreconcilable timeframe he has provided, I am satisfied that his claims are not credible and I do not accept that he was ever threatened by the Taliban, or any other group or persons, in connection with his employment with the IEC, Dish or for any other related reason. 41. The [appellant] claims that after he left the country his father and family were threatened several times by the Taliban. He claims his father was told by the Taliban that as the [appellant] had left the country, he should give one of his younger sons for jihad. The threats were so real that his father took his family to Dubai. The [appellant's] wife also later [joined] them. As I do not accept the [appellant] was ever threatened by the Taliban, it follows that I do not accept that the Taliban targetted [sic] his family after his departure, or that they fled to Dubai for these reasons. 42. I have found the [appellant] was never threatened previously for his role with the IEC or Dish. I accept the country information before me which indicates that employees of the IEC working at polls during the election period in 2009 faced significant risk, some losing their lives in attacks. More generally, I accept that within Afghanistan there are credible threats to those that work with international and government organisations, including media organisations. Significantly, the [appellant's] role with IEC was not at polling stations, but was a non-public role at an IEC office. He did not claim to have ever been at threat at his place of employment, in fact the [appellant] never claims to have been approached or threatened in person at all. 43. I have found that he was never threatened for his role with IEC or Dish. Nevertheless, I accept that his role with the IEC would have carried some risk, as potentially did his role at Dish. I find those risks were likely mitigated by the low profile nature of his role with IEC (being an internal position) and the short duration of his time with the Dish [sic]. Having regard to the time that has passed since he worked at both places, I find that any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country. 44. While I accept his work history, I am satisfied that his employment with both organisations has ceased. There was no suggestion in his evidence that he would return to either role. I am satisfied that as a question of fact, the [appellant] would not seek similar employment in the future and this would not involve any modification of his behaviour. Alternatively, I am also satisfied he could take reasonable steps to modify his conduct to avoid any future chance or risk of harm on these bases. He is experienced and has a skillset in computing and technology and I am satisfied he could find work and make a living in an industry entirely unrelated or connected to the media, government or international community. 45. I find that taking such steps would be reasonable and relatively minor adjustments to his future employment plans. He initially claimed to have been unaware of the full extent of the risks when he commenced work with the IEC, but now understands the potential risks. The [appellant] did not claim to have any broader or ongoing interest in the democratic process or the media. I find there is nothing in his evidence that suggests he would be unable to, or could not or would not want to take such steps. Viewed together, I am satisfied that if the [appellant] took these reasonable steps to modify his behaviour, it would not conflict with a characteristic that is fundamental to his identity or conscience, or require him to conceal an innate or immutable characteristic, or require him to act in any way or do any of the things contemplated by s.5J(3)(c)(i - vi). 46. Considering all the circumstances, I find that there is no real chance or risk of him being seriously harmed for reasons related to his work with the IEC or Dish, or on the basis of any actual or imputed profile or connection to a media, governmental or international organisation, if he were to return to Afghanistan in the reasonably foreseeable future. (Emphasis added.) 10 From this it is apparent, that the IAA did consider whether there was any risk to the appellant if he returned to Afghanistan and considered that no real risk existed. The appellant does not suggest that this conclusion was irrational, but it is contended for the appellant that the IAA failed to examine issues squarely raised on its own findings. The way the IAA reached its conclusion was to have regard to: (a) independent country information; (b) the limited time that the appellant had worked for Dish TV; (c) the low profile nature of his role with the IEC; (d) the fact that any profile that the appellant had with the Taliban was a "limited adverse" one; (e) the lapse of time since the appellant's departure from Afghanistan; and (f) the fact that on his return to Afghanistan, the appellant would not seek any work of a similar nature to that in which he had previously worked, that is, work for entities linked to the media, government or international communities. 11 The IAA further explained its reasons on the basis that it considered it implausible that the appellant knowing: (a) the risk to people in his position; (b) the Taliban's alleged ability to find him despite changing his address and phone number; and (c) that one of his colleagues had been killed and another had been abducted, would return to work at the IEC six weeks after being threatened with the Taliban. Further, it considered that there were significant discrepancies in the chronology given by the appellant over the course of his application. The chronological discrepancies and what the IAA saw as implausibilities also affected consideration of his claims to have been threatened while working for Dish TV. That claim was rejected. The IAA rejected that the appellant had in the past been threatened by the Taliban or any other group or persons because of his employment or for any other related reason. 12 The aspect on which the appellant focusses in the appeal is that despite these findings, the IAA found (at [43]) that his employment with the IEC and Dish TV would have carried some risk, and yet, it is said, the IAA failed to go onto deal with an "obvious issue", namely, whether the appellant could obtain employment in his field without disclosing his previous employment which may thereby expose him to risk of persecution from the Taliban.
In the Federal Circuit Court 13 The appellant's application for judicial review was heard in the Federal Circuit Court of Australia and dismissed. In addressing the obvious issue ground, the primary Judge said (at [28]-[33]): 28. It is well established that the AAT consider all claims made by an applicant and the essential component integers of that claim. However, as was made clear in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1, the Tribunal is only required to consider such claims where they either are: a) the subject of a substantial, clearly articulated argument line on established facts; or b) a claim that clearly emerges from the materials. It was not suggested that the IAA had any different duty to that of the AAT. 29. The threshold question is whether the claim (that the [appellant] would not be able to find work utilising his skill set without disclosing his previous employment and therefore putting himself at risk) squarely arose from the materials. 30. The [appellant] refers to Tharmalingam v The Minister for Immigration [1998] FCA 537 as authority for the proposition that the present claim did arise from the materials. However, I am of the view that Tharmalingam (Supra), while being a proper statement of law, is a different factual case from the present one. In that case, the Tribunal had made a finding about that [appellant] being a "bagman". Having made that conclusion, the Tribunal was obliged to consider whether that [appellant] feared persecution in the future. 31. The present case is quite different. While the IAA found that the [appellant] had been employed by the IEC and Dish TV, it did not find that there had been threats made by the Taliban. The IAA did note that there was a risk in such employment. But the [appellant] did not suggest that he might be harmed because he would have to disclose this work history to future prospective employers and did not suggest that he could not obtain employment without disclosing this employment history. 32. There was no suggestion, or any inference that could be made from the evidence, that any future employers would disclose to the Taliban that the [appellant] had previously been employed by the IEC and [D]ish TV. 33. The claim, that is now being made, is extremely speculative. The IAA made a finding that the [appellant] had a role with these organisations that was of "a low profile nature". 14 By way of distinguishing Tharmalingam v Minister for Immigration & Multicultural Affairs [1998] FCA 537, the primary Judge noted that the appellant had not suggested that he might be harmed because he would have to disclose his work history to future employers and did not suggest that he would not obtain employment without disclosing his employment history. His Honour also found that the "claim" that a future employer would disclose his past employment to the Taliban was extremely speculative. 15 His Honour also opined that it was difficult to imagine any position involving computer technology that would not be influenced by western culture and that there was no evidence to support an inference that any work in computer technology would be seen unfavourably by the Taliban. His Honour said (at [35]-[36]): 35. It seems then that the [appellant] is complaining that the IAA did not consider that, in applying for work in a field that would naturally be an anathema to the Taliban, employers who were running such organisations would need to know about the [appellant's] previous employment and that such information would be disclosed to the Taliban and thereby put the [appellant] at risk. 36. Clearly such a scenario does not emerge from the material. This ground therefore fails.
In this Court 16 It is common ground that the issue, which the appellant contends the IAA should have explored, was not expressly raised by him by way of a claim or otherwise. However, the appellant contends that having found the appellant would seek employment in his chosen field and having regard to the probability that it would be necessary to disclose previous employment background, the IAA failed to explore an obvious risk arising, namely, whether such disclosure of work experience could give rise to release of that information to the Taliban and a consequential relevant risk from the Taliban.
The principles 17 By s 473CC of the Migration Act, the IAA is required to "review" the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act. 18 It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that: The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed. The Tribunal is only required to consider such claims where they are either: (a) the subject of substantial clearly articulated argument, relying on established facts; or (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]). These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said: ... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ). (Emphasis added.) As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]): (a) such a finding is not to be made lightly (NABE at [68]); (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]); (c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said: 37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it. 38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov. (d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time. 19 In this appeal, the appellant argues that while NABE dealt with circumstances in which claims arising from materials before the Tribunal must be considered, the Tribunal must also consider issues which arise from its own findings, which it has already made. There is a special need for this consideration because such findings may not be known to an applicant. Nor may they be predictable during the course of the IAA review and may raise further questions about whether a visa applicant has a well-founded fear of persecution. 20 The appellant relies particularly on Tharmalingam, arguing that the primary Judge incorrectly dismissed the applicability of Tharmalingam. Rather than his Honour's conclusion as to the threshold issue articulated at [29] of his Honour's reasons (see [13] above), the proper threshold question, the appellant says, is whether the issue of the visa applicant not being able to find work utilising his skill set without disclosing his previous employment, clearly arose from the materials before the IAA or from the IAA's own findings. 21 The appellant argues that on a proper application of the principles, where a potential refugee has a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act for reason of imputed political opinion, much may depend on the way he will conduct himself or herself on return. It is argued for the appellant that the finding by the IAA, that he could be expected to seek employment in the field of computers or technology for an employer unrelated to media, government or the international community, was not a predictable finding and so it is unsurprising that the consequence of such behaviour was not addressed by the appellant in his submissions to the delegate of the Minister or to the IAA. Of course, a practical difference between the procedure before the Tribunal and the procedure before the IAA is that an applicant will not automatically be entitled to a hearing before the IAA to be informed that such a finding may be made. Mr Karp for the appellant submits that (assuming that such employment were available on his return to Afghanistan) the question, which was obvious, was how he could obtain such employment without revealing his past employment. He contends it is unrealistic to think that the appellant would not be required to tell a prospective employer of his previous experience in the field. This was an obvious matter not considered or evaluated by the IAA. The appellant contends that as a matter of common experience and common sense, an employer would ask a prospective employee for a skilled position about his previous employment experience in the field and the appellant, if answering honestly, would be obliged to tell a prospective employer of his experience in government and media. The appellant contends that if "word got around" and if the employer himself was sympathetic to the Taliban, he may place himself in danger. The appellant says that the fact that he may not have a profile with the Taliban now does not mean that he may not acquire one in the future.
Consideration 22 In Tharmalingam, the applicant had been forced to act as a "bagman" for the Liberation Tigers of Tamil Eelam (LTTE) in his capacity as a bank employee. The Refugee Review Tribunal (as the Tribunal then was) accepted that he had acted as a bagman, but did not accept that he had already been persecuted because of that role. Lindgren J found that one of Mr Tharmalingam's fears was that his role might be discovered. His Honour noted that the Tribunal found it "extremely implausible" that the bank's officers in Colombo did not know of his activities. Lindgren J held (at 20-21) that the Tribunal was required to consider "in the light of the claims it did accept" whether Mr Tharmalingam's role as an LTTE bagman may lead to his facing persecution in the future should that role become more widely known, especially to the police. 23 In Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (at [42]), the Full Court (Mathews, Tamberlin and Mansfield JJ) cited the majority (Wilcox and Madgwick JJ) in Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 to the effect that the Tribunal is required to address all substantial matters which might bear upon whether the applicant meets the criteria for a grant of a protection visa. The Tribunal's conclusion in that case, summarised (at [10]) of the decision was that Mr Sameh, a stateless Bedoon did not have a well-founded fear of persecution in Jordan. The Full Court observed, however, that the Tribunal had failed to take into account how, in Mr Sameh's particular circumstances, he would be able to re-enter Jordan at all. 24 In the current case, the delegate found that the appellant had not been personally threatened in the past and that this would not change as he would not otherwise be at any real risk if he were to return to Afghanistan. The appellant then swore, in a statutory declaration, that he indeed had been threatened in connection with his employment at the IEC and Dish TV. Like the delegate, the IAA rejected that those threats had occurred at any time and for any reason. In this reasonably comprehensive statutory declaration, responding to the delegate's findings, there is no suggestion at all that other employment would not be possible to obtain without revealing not only the previous employment with the IEC and/or Dish TV, but also exposing himself to a risk that prospective employers would reveal his past employment to the Taliban and that the Taliban would respond adversely against the appellant. Unfortunately for the appellant, the IAA's summary conclusion (at [43]), set out above, namely, "I find that any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country", disposes of any such possibility even if it had been raised. Having rejected the making of the threats, that was probably sufficient to deal with the appellant's claims. The IAA went further, however, and said that (based, at least implicitly, on country information) it accepted that the previous employment "carried some risk" (at [43]), but that there was no real risk of harm arising in the future. 25 Tharmalingam is distinguishable as held by the primary Judge. The problem in Tharmalingam was that the Tribunal did not assess whether the applicant could be harmed by the "CID" on account of his imputed political opinion as an LTTE supporter, bearing in mind the Tribunal's acceptance of his bagman activities and the knowledge by the CID of such matters. The Court concluded that the Tribunal's approach was erroneous. Lindgren J held that having regard to the findings made, the Tribunal's failure to address the question as to whether or not he would be harmed by the CID because of his political opinion, was a jurisdictional failure. In our view, this decision is consistent with NABE. It does not extend it. In Tharmalingam, Mr Tharmalingam put forwards claims before the Tribunal and clearly articulated his fear of being persecuted by the CID because of his imputed profile as an LTTE supporter. Even if not clearly articulated, those claims certainly squarely emerged on the materials before the Tribunal. 26 We can accept the appellant's contention that the NABE principle in relation to claims or issues clearly arising from materials before the Tribunal or IAA would extend to materials which are actually the Tribunal or IAA's own findings. An unarticulated claim might "clearly emerge" before a decision-maker, having regard to his or her own findings and the material before the decision-maker upon which those findings are reached. This proposition was also accepted by Bromberg J in ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 (at [27]) where his Honour said: While I respectfully agree that a Tribunal's obligation to determine a claim extends only to those claims which arise squarely from the materials before the Tribunal, and would also agree that those materials ought to include the Tribunal's own findings of fact, I consider that the debate misses the point in this case. 27 The appellant also contends that the Minister has failed to distinguish between a "claim" and an "issue". The point being made is that a "claim" is an assertion of fact made by an applicant (for example, see Htun (at [42])) or one which arises clearly on the evidence before the decision-maker: NABE (at [63]). An issue, on the other hand, is a topic or question to be resolved in determining whether a person meets criteria for a particular visa. In the context of Pt 7 reviews see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (at [47]) and SZDFZ v Minister for Immigration and Citizenship (2008) 168 FCR 1 per Flick J (at [22]-[27]). 28 While the appellant says the difference between a claim and an issue is a great deal more than semantic, the Minister submits that on a proper understanding of authorities, it is a difference without a distinction. While it is unnecessary to express a view on this topic for present purposes, we accept that consideration of an issue may well be a different matter from consideration of a claim. For example, an issue in this case might be the issue which the appellant contends the IAA failed to address, whereas the fundamental claim was a fear of persecution from the Taliban for reasons of imputed political opinion. Equally, there are probably other cases where the terms have been used more interchangeably. The distinction, however, on the facts of this case is not of significance because on any view of the matter, the issue which the appellant complains the IAA failed to consider was not an issue expressly raised or squarely arising on the materials before the IAA, including the IAA's own findings. 29 The appellant in the present instance articulated his fear of the Taliban. He articulated this to be a fear based on the Taliban actually knowing his previous occupations and having threatened him in such a context. He did not, however, proffer a fear of persecution on the basis that were he to return to Afghanistan and seek work (which we accept would be presumed), he would have to disclose his previous occupation to prospective employers (which we also think may be assumed). Further, at no time was there any suggestion that such prospective employers would enable such information to come to the knowledge of the Taliban or that there would be relevant repercussions therefrom. 30 In our view, this cannot be said to be an integer or an issue squarely or clearly arising on the materials before the IAA, either from its own findings or from the claims or facts accepted and advanced by or on behalf of the appellant. The delegate had expressly found that the appellant would not be harmed by the Taliban were he to return to Afghanistan and the IAA made available to the appellant the relevant practice direction stating that he could make submissions as to why the delegate's decision was wrong. Having made further submissions and made a further statutory declaration, the appellant did not articulate those matters. He was represented by a migration agent before the delegate and before the IAA and, as noted, in such circumstances it is more difficult to persuade the Court an articulated claim has clearly emerged from the materials. The primary Judge was correct to think that there was no reason for the IAA to conclude that the appellant's future prospective employers would cause information about his former employment to be disclosed to the Taliban. His Honour was correct to note that this was a matter of pure speculation and far from being based on established facts. The established fact was that the IAA had reached the conclusion that "any limited adverse profile the [appellant] may have had in the past would pose no risk or chance of harm to him on return to the country". This appears to embrace an all-encompassing view that even if the Taliban became aware of his return and his previous employment, on the assessment on the merits of the IAA and for reasons rationally stated, the appellant would still face no real risk of being harmed. 31 The fundamental threshold requirement is that such a claim or issue must "clearly emerge" from such materials. In light of the opportunities that the appellant had to challenge the delegate's finding that he would be at no risk on return to Afghanistan, there was ample opportunity for the appellant to make clear a particular concern that "might" arise should he seek alternative employment, be required to disclose his past employment history, that history be released to the Taliban and there be a response from the Taliban. Those matters were not articulated. There is no doubt, and nor is it raised on appeal, that the appellant did have an opportunity to raise these matters in support of his claim if they were a concern.
Conclusion 32 For all those reasons, the appeal must be dismissed with costs. We certify that the preceding thirty-three (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, McKerracher and Banks-Smith.
AYY17
Minister for Immigration and Border Protection
(2017) 253 FCR 448
(2001) 233 FCR 136
(2004) 144 FCR 1
(2006) 228 CLR 152
(2008) 168 FCR 1
(2016) 241 FCR 214
(1999) 90 FCR 287
The appeal be dismissed. The Appellant pay the costs of the First Respondent, to be assessed if not agreed.