Contentions before the court
8 The difficulty for the appellants in this case is that the assessor made findings of fact which negated the existence of any valid claim to the fear of persecution or fear of significant harm if they were returned. It followed that its consideration, based upon its conclusions as to the non-existence of the claimed circumstances, must necessarily have directed it to conclude that the appellants did not face a real chance of persecution for Convention Reasons and that their claimed fear was not well founded.
9 The sole point of the appeal is whether the assessor, having found that the circumstances alleged as being the foundation for a fear of persecution or significant harm did not exist, was required to consider whether, taking all of those circumstances together, a fear of persecution or significant harm existed. That is, whether he was required to undertake a cumulative assessment of the various claimed integers which the appellants asserted underpinned their claim to a fear of persecution?
10 This precise situation was considered recently by the Full Court in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188. The relevant principle to apply in cases of this nature is succinctly stated at [32]-[34] as follows:
32 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 appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].
33 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] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].
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 [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. 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 [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].
34 In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. 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.
11 Here, the assessor rejected all of the integers of the appellants' claims relating to their asserted fear of persecution or significant harm upon being return to Iran. There being no individual factor which the assessor accepted as existing, there could have been no point in any purported "cumulative assessment" of all of those non-existent factors.
12 An important finding of the assessor was that the appellants had no political profile at all. The consequence was that all of the various claims to a fear of persecution or harm fell away. That was true in relation to any alleged surveillance of them but also true in relation to whether or not the content of the appellants' Facebook pages would be monitored by the Iranian authorities. The assessor determined that it would be implausible that the Iranian authorities would monitor the internet usage of all of their nationals who were outside of Iran. Further, the assessor determined that the appellants would not face harm by reason of the fact that they might be suspected of having sought asylum in the West. Again, that was because neither of them had any political profile.
13 In addition, the impact of the appellants being outside of Iran was rejected as a basis for fear of persecution or significant harm. The assessor found that the claim that summonses had been issued against them in absentia were fabricated and it did not accept that the appellants' house had been sealed and their bank accounts frozen.
14 The circumstances in this matter resemble those in Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 where Katz J identified that where claimed past events had been rejected by the decision maker as having existed, there is no warrant for holding that that decision maker is required to have regard to the possibility that those past claims actually occurred. That observation is apposite to the circumstances of the matter before the Court.
15 It might also be observed that after a meticulous and careful analysis of all of the claims the assessor then considered whether or not the appellants had a well-founded fear of persecution or significant harm. That consideration (at pp 296-299 of the Appeal Book in relation to the fear for a convention reason and at pp 300-304 in respect of whether there is a risk of significant harm for the purposes of Australia's non-refoulement obligations) shows that all of the matters raised by the appellants were considered together. The assessor found that no convention ground existed and nor was there any risk of significant harm for the purposes of the non-refoulement obligations. It is quite apparent that the assessor undertook the task of considering the totality of the evidence for each purpose. Therefore, even if the assessor was required to undertake a consideration of the cumulative effects of the claims, he did so.