Consideration
32 While there is a lack of clarity, essentially by his grounds of appeal the appellant seeks to challenge the primary judge's finding that the error his Honour identified at [71] of BGV19 was not material. So much was confirmed in oral submissions by counsel appearing for the appellant. In doing so the appellant contends that the Authority was obliged to consider whether he would return to Iran irregularly and, if so, the consequences of doing so for him as a stateless Faili Kurd refugee. The appellant contends that the Authority failed to do that, which is the error identified by the primary judge at [71] of BGV19.
33 In addressing the grounds of appeal, it is necessary to start with the Authority's reasons.
34 First, any suggestion on the part of the appellant that the Authority failed to consider, in a general sense, whether, if the appellant was removed from Australia to Iran, there was a real chance that he will face serious harm as an unregistered Faili Kurd cannot be sustained.
35 At [37]-[39] and [44]-[46] of its reasons the Authority considered country information in relation to Faili Kurds in Iran (and Iraq). At [40]-[42] and [47] of its reasons the Authority considered the appellant's actual circumstances. At [43] and [48] the Tribunal drew its conclusions about the appellant's evidence of his life in Iran, in light of the country information. It found:
43. I have had regard to the information above regarding the treatment of unregistered or undocumented Faili Kurds, but given the particular circumstances of the applicant, I am not satisfied that there is a real chance of him experiencing restrictions, limitations or hardships or economic harm or denied the capacity to earn a livelihood, or access basic services, whether separately or in any cumulative sense at a level that would threaten his capacity to subsist or otherwise amount to serious harm.
…
48. I have had regard to the information above regarding the treatment of unregistered or undocumented Faili Kurds, but given the particular circumstances of the applicant, I am not satisfied that he will be imputed with any type of profile arising from his or his family's past circumstances. I do not accept that the applicant as an unregistered or undocumented Faili Kurd he will be perceived to have any actual or imputed anti-Iranian government political opinion or considered a Faili Kurd or Kurdish separatist, political activist or dissident, or someone of interest on this basis should he return to Iran.
36 At [49] the Authority concluded that, in light of the matters to which it referred (I infer at [37]-[48] of its reasons) it did not accept that the appellant faces a real chance of serious harm as an unregistered or undocumented Faili Kurd should he return to Iran. In that way the Authority comprehensively considered that question at a general level in relation to the appellant being a Faili Kurd who may return to Iran.
37 Secondly, the focus of the argument before me, and it seems resolution of the grounds relied on before the Federal Circuit Court by the primary judge, was at [51]-[59] of the Authority's reasons where the Authority considered the questions of whether the appellant would face a real chance of serious harm as a returned asylum seeker and whether he could return to Iran at all. The Authority said (as written):
51. The applicant claimed he would face harm on return because he departed Iran illegally and other matters which I have not found to be credible. The delegate also considered whether the applicant may face harm on return because he will return as a failed asylum seeker from a western country. The applicant advanced no such claim however I accept he would return after his prolonged residence in Australia and his application for asylum has failed.
52. I have found that the applicant departed Iran using a fraudulent Iraqi passport, and I accept he no longer has this passport. In 2016, DFAT reported that the Iranian Government does not allow re-entry by registered refugees if they visit a third country. Unregistered refugees who leave Iran are not allowed to return through regular means. There is no more recent information before me to indicate that this position has changed. Furthermore, according to DFAT, Iran has historically refused to issue travel documents (laisser passers) to allow the involuntary return of its citizens from abroad. On 19 March 2018, however, Iran and Australia signed a Memorandum of Understanding (MOU) on Consular Matters that includes an agreement by Iran to facilitate the return of Iranians who arrived after this date and who have no legal right to stay in Australia.
53. I accept that as a registered Faili Kurd refugee who left Iran, the applicant will not be allowed to re-enter, however in any event, in light of the information regarding involuntary returnees, I consider that if the applicant was to return to Iran it would be on a voluntary basis, on a temporary travel document and his prolonged residence in Australia and after his asylum application has been unsuccessful.
54. The information before me indicates that failed asylum seekers are very unlikely to be targeted by the Iranian authorities for reason of having applied for asylum overseas. Hossein Abdy, the Head of the Passport and Visa Department at Iran's Ministry of Foreign Affairs, advised the Danish Refugee Council, Landinfo and the Danish Immigration Service during a November 2012 fact-finding mission that it was not a criminal offence in Iran for any Iranian to ask for asylum in another country. An unnamed Western diplomat and expert on Iran advised the Danish Refugee Council and Danish Immigration Service in 2013 that as long as a returnee has not been a member of an opposition political party or involved in political activities in other way, she or he would not face problems upon return to Iran.
55. DFAT reported in 2018 that according to international observers, Iranian authorities pay little attention to failed asylum seekers on their return to Iran, with the authorities accepting that many will seek to live and work overseas for economic reasons. It was also commented that Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims and it was those with an existing high profile who may face a higher risk of coming to official attention on return to Iran, particularly political activists. DFAT also noted that it not aware of any legislative or social barriers for returnees finding work or accommodation in Iran or any specific barriers to prevent return to a returnee's home region.
56. I have rejected the applicant's claims that the Iranian authorities have arrested the people smuggler who had assisted him and his cousin and that they are aware they are in Australia. There is no other credible evidence before me to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally and I consider this to be pure speculation on the applicant's part and I do not accept that this to be the case. I am not satisfied that there is a real chance of him suffering any harm on this basis.
57. I have found that the applicant was not of interest to the Iranian authorities when he departed Iran. There is also no evidence before me to indicate that the applicant has been involved in any activities since arriving in Australia that would have brought him to the adverse attention of the Iranian authorities. There is also no independent information before me to suggest that absent any other concerns, individuals who return to Iran after spending a prolonged period of time in a western country such as Australia and sought asylum unsuccessfully are imputed with an adverse opinion or profile and harmed. I am not satisfied that he will face a real risk of attracting the specific attention of the authorities and questioned should he return to Iran.
58. In light of the information before me and taking into account the applicant's individual circumstances, I am not satisfied that the applicant faces a real chance of harm because he might be identified at the airport as a person travelling on temporary travel document, prolonged residence in Australia, or because he sought asylum, or sought asylum unsuccessfully should he return to Iran.
59. I am not satisfied that the applicant has a well-founded fear of persecution.
38 By ground 1 of the appeal the appellant contends that the primary judge erred in failing to find that the Authority fell into jurisdictional error, in failing to give proper, genuine and realistic consideration to whether the appellant may face harm on return to Iran because he will return as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent passport, in that it failed to consider the consequences of entering Iran irregularly and whether illegal entry into Iran would be treated as a criminal matter. Similarly, by ground 2 of the appeal the appellant contends that the primary judge erred by failing to find that the Authority fell into jurisdictional error when it failed to consider a mandatory relevant consideration, being whether the appellant may face a real chance of harm as an involuntary undocumented stateless Faili Kurd refugee returnee, in that it failed to consider the consequences of entering Iran irregularly and whether illegal entry into Iran would be treated as a criminal matter.
39 In determining the grounds of appeal, an anterior question is whether the Authority was in fact required to consider whether the appellant may face harm on return to Iran because he will return as a stateless Faili Kurd failed asylum seeker who departed Iran on a fraudulent Iraqi passport, the way in which he would return and the consequences of that. That in turn depends on whether the appellant made such a claim.
40 The Authority is required to consider claims that are the subject of clearly articulated substantial argument, relying on established facts, or that clearly emerge from the material before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55], [58].
41 In AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 a Full Court of this Court (Collier, McKerracher and Banks-Smith JJ) said at [18]:
…
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.
42 In ELA18 v Minister for Home Affairs [2019] FCA 1482 at [28] Abraham J said:
The respondent placed particular reliance on SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 (SZULW) at [80] where Thawley J endorsed as correct the comments of the Court below which were in the following terms:
As the applicant did not claim that "Sri Lankan illegal departers returning from Australia" were a particular social group, in the circumstances the Tribunal's failure to consider whether they were did not involve error unless such a claim arose clearly from the materials before it: NABE v Minister for Immigration & Multicultural& Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1. Whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the Tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal: SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at 35 [37]. Unless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].
43 At [32] of ELA18, in finding that no claim was made by the appellant in that case about his mental health, her Honour concluded that "[m]oreover, the appellant was, and remains, represented throughout the process. The Authority was entitled to assume that the claims expressly articulated by the appellant and his representative as to his feared persecution if he returned to Sri Lanka are those on which he relies".
44 The material before the Authority reveals that:
(1) in the appellant's entry interview, in response to a question "Why did you leave your country of nationality (country of residence)?", the appellant responded:
I am stateless and they have no respect and they treated us like animals, no work for us, I cannot even get a Sim card in my name, even for the little kids at school are not allowed to play with the balls at school we are very discriminated people and they hated us, even though I was born there they would not grant me citizenship and they always say Iraq and in Iraq they say we are Iranian, we really are lost and neither Iraq or Iran accept us.
That response did not mention a fear of harm as an asylum seeker from the west or whether he would need to return irregularly;
(2) the appellant's application for a temporary protection visa had annexed to it a statutory declaration which set out the appellant's claims. A review of the statutory declaration reveals that no claim was made by the appellant that he feared harm as a returning asylum seeker from a western country or about how he would return. That is, whether he would return irregularly and, if so, the consequences of doing so;
(3) the Minister's delegate did consider the question of failed asylum seekers returning to Iran noting, among other things, that based on country information a person would not be targeted by the authorities on return to Iran for the sole reason of being a failed asylum seeker, as long as he or she was not involved in political activities contrary to the ruling party. The delegate did not accept that the fact that the appellant claimed asylum or spent time in Australia would, of itself, attract adverse interest; and
(4) in the appellant's submission to the Authority there was no claim made or reference to a fear of harm on return to Iran as a failed asylum seeker from the west or because the appellant would need to return irregularly and what the consequence of doing so might be for the appellant.
45 There is nothing in the material before me to support a contention that the appellant made a claim to fear harm as a failed asylum seeker returning to Iran from the west and/or about the way in which he would return to Iran and, in particular, that he would return irregularly or illegally. Such a claim was not made expressly, did not arise from the established facts or emerge from the material relied on by the appellant. Further, the appellant was represented at the time of his application for the visa and before the Authority such that the Authority was entitled to assume that the claims the appellant and his representative expressly articulated in relation to his fear of harm should he return to Iran were those on which he relied: ELA18 at [32].
46 As submitted by the Minister, at [53] of its reasons (see [37] above), the Authority found that the appellant could not actually return to Iran. Having done so the Authority was required to consider the situation if he could return: see Taiem v Minister for Immigration and Multicultural Affairs [2001] FCA 611; 186 ALR 361 at [14]. That is what the Authority did, making a number of findings about the situation he would face and any constraints "should he return to Iran".
47 No claim of the nature articulated at [45] above, and on which the grounds of appeal seem to be premised, was made. The appellant did not make a claim to fear harm as a failed asylum seeker returning to Iran from the west and/or about the way in which he would return to Iran and, in particular, that he would return irregularly or illegally. That being so the Authority was not required to consider the consequences for the appellant if he was to return to Iran irregularly or illegally.
48 Further, and in any event, the requirement for the second assumption identified by the primary judge at [70] of BGV19, that the appellant would enter Iran irregularly (or in a similar way to which he left) was, with respect, speculation on the part of the primary judge.
49 That being so, I accept the Minister's submission that the primary judge was not correct to find that the Authority had fallen into error by not considering the second assumption. Be that as it may, having found the necessity to consider the assumption, the primary judge found that Authority's error did not go to jurisdiction.
50 The appellant challenges the primary judge's reasons for reaching this conclusion and contended that the failure to consider the second assumption was material.
51 In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] Kiefel CJ, Gageler, Keane and Gleeson JJ observed that:
Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
(Footnote omitted.)
52 The appellant contends that the second assumption identified by the primary judge at [70] of BGV19 follows from the fact that for a person who has no right to voluntarily return to Iran, irregular entry must necessarily be a contravention of Iranian law and that it is known that illegal entry into Iran would be unlawful and it should be reasonably inferred that the coercive machinery of the state would be applied to its enforcement. However, these contentions are no more than that and not supported by any evidence. Noting that the appellant bears the onus, there was no evidence before the Authority on which it could be concluded that there was a realistic possibility that the decision could have been different had the identified error not been made and the second assumption considered. There was no error in the primary judge's conclusion that the error as identified by his Honour did not go to jurisdiction.
53 As a final matter I address the contentions made in the appeal grounds.
54 By appeal ground 1, the appellant contends that the Authority failed to give proper, genuine and realistic consideration to the consequences of the appellant's illegal return. In Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 400 ALR 417 at [26] Kiefel CJ, Keane, Gordon and Steward JJ cautioned that:
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
(Footnotes omitted.)
55 Given my conclusion that a claim to fear harm as a stateless Faili Kurd returning irregularly was not made, the appellant's contention appears to be an invitation to undertake impermissible merits review or an attempt by the appellant to recast his claims on a basis that was not actually made: see S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (Gleeson CJ).
56 In appeal ground 2, the appellant contends that the Authority failed to consider a mandatory relevant consideration, whether the appellant may face a real chance of harm as an involuntary undocumented stateless Faili Kurd refugee returnee. However, the appellant does not explain how and why the Migration Act mandates that that matter must be considered.