BXA21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1435

1. The Applicant is a citizen of Iran who was granted a protection visa in 2011.
2. In 2020, under s. 107(1) of the Migration Act 1958 (Cth), the Minister gave to the Applicant a Notice of Intention to Consider Cancellation of the Visa (NOICC). The Minister gave the Applicant the NOICC because the Minister considered that in November 2010 the Applicant had provided incorrect information in support of his visa application under s. 101(b) of the Act.
3. The incorrect information that the Minister considered the Applicant had given was that the Applicant had said his brother was in Iran when in fact the Applicant's brother was in Australia. The brother and his whereabouts was an important part of the narrative of the Applicant's claims in 2010 because the Applicant had said that he had been imprisoned in Tehran, his brother had found a person to sign his bail papers and act as a guarantor and it was his brother who told him that he (the Applicant) had been summoned to appear before the Islamic Revolutionary Court.
4. On 9 June 2021, following a review in which the Tribunal considered the Applicant's response to the NOICC, the Tribunal exercised its discretion under s. 109 to cancel the visa.
5. It was the "Tribunal's view that the applicant had deliberately provided incorrect information about his family composition and the presence of his siblings in Australia" (TD, [51]). The Tribunal explained its exercise of its discretion to cancel the visa in the following terms (TD, [57], [59]):
   1. .... the applicant made specific claims for protection that involved his brother so that the brother's presence in Australia at the relevant time brings into question the veracity of such claims and, in the Tribunal's view, the applicant's evidence overall. ... [T]he Tribunal has formed the view that the applicant is not a person of credibility and that he may not have been truthful in other aspects of his protection claims.

....

1. The Tribunal has found that the decision to grant the visa was based, in part, on incorrect information and, as noted above, the Tribunal has formed the view that the incorrect information about the brother's whereabouts undermined other claims made by the applicant. The Tribunal has found that the breach was deliberate and that the applicant had knowingly and intentionally chose to be untruthful with the Department in order to support his family's needs.

1. The Applicant does not challenge the Tribunal's findings as to him having deliberately provided incorrect information about his brother.
2. The Applicant brings his judicial review application on another basis: that the Tribunal overlooked another claim as to why the decision-maker ought not to cancel the visa: namely, that if he returned to Iran, he would be persecuted for being Kurdish and would return to Iran as a failed asylum seeker. The compound facts of being Kurdish and returning to Iran as a failed asylum seeker, to the extent they were claims the applicant made (the central dispute before me) were always coupled. I have tended therefore to refer to a single "claim" composed of two elements: namely, being Kurdish and having the status of a failed asylum seeker.
3. The principal dispute before me is whether that claim was "the subject of substantial clearly articulated argument" or "clearly emerged from the material" (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89, [18]) (Ground 1).
4. The Minister conceded that the Tribunal did not consider the claim. The Minister further conceded that if the claim was before the Tribunal (as the subject of clearly articulated argument or because it clearly emerged from the materials) the failure to consider the claim was a material error.
5. It is a matter for me as to whether the claim was the subject of a substantial clearly articulated argument or clearly emerged from the materials (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] - [63]).
6. It was also common ground that in evaluating whether the claim was the subject of substantial clearly articulated argument or clearly emerged from the materials I should consider the totality of the material and not consider the material before the Tribunal in a segmented way. That is, there is a single conclusion to be reached having considered the totality of the material: the claim either was the subject of a substantial clearly articulated argument or clearly emerged from the materials (or it was not).

1. In summary, I have found that the claim - that the Applicant was of Kurdish ethnicity and would return to Iran as a failed asylum seeker - was neither the subject of a substantial clearly articulated argument nor clearly emerged from the materials such that Ground 1 has not been made out. Grounds 2 and 3 do not assist the Applicant.
2. I will dismiss the application.
3. My reasons follow.

1. I turn now to the totality of the material which I must consider in an assessment of whether the Applicant made a claim that he feared harm because he was Kurdish and/or because if he returned to Iran he would do so as a failed asylum seeker.
2. In considering the totality of the material, I have had regard to the Applicant's initial statement of his claims for a protection visa on 27 November 2010, the way in which the Applicant subsequently referenced those initial claims in his response to the NOICC as part of the visa cancellation decision-making process, the delegate's decision, the Tribunal transcript and the Applicant's further written submission made after the Tribunal decision. I deal with these matters sequentially.

1. On 20 September 2010 the Applicant, an Iranian citizen of Kurdish ethnicity arrived in Australia.
2. On 27 November 2010 he made claims for protection and made a signed statement (Statement Of Claims). Among other matters he said the following:
   1. I am Kurdish...

....

4. I fear returning to Iran because... I was arrested by the Iranian Basij and was taken to Evin Prison. I was amongst those who were demonstrating against the Islamic Republic of Iran's regime. When they arrested me they bashed me up badly. As a result, they broke my left arm (elbow). I was detained in Evin for 8 consecutive days. While I was in prison, the Iranian authorities announced that we all face the Islamic Revolutionary Court and we should arrange some kind of guarantor to come and sign the bail papers.

1. My brother found one of his friends who was working for governmental sector and asked him to come and sign the bail papers ...

2. While I was in Evin, I became friend with a man called [name omitted] .... He went to court and was sentenced to 8 years imprisonment.

....

1. After this I thought to leave Iran because I was too scared.

....

1. Approximately 20 days ago I called my brother and he told me that I was summoned to appear before the Revolutionary Court...

2. Because I did not appear before court, 2 days later the Iranian authorities went and arrested my guarantor....

3. .... I cannot go back to Iran because I will be arrested and sent to Evin for something I had right to do, protest.

4. If I go back to Iran I will be killed because the Iranian regime has no mercy for people like me....

5. Apart for this issue I am a Kurdish by ethnicity, and if I return to Iran as a failed asylum seeker I will be persecuted for 2 reasons my political view and being a Kurdish.

(Emphasis added)

1. On 7 April 2011 the Applicant was granted a protection visa. The decision-maker whose decision underpinned the granting of the visa accepted the veracity of Applicant's testimony about events in Iran.
2. As is apparent from the statement of claims, the brother's involvement in certain events was integral to the Applicant's claim: it was the brother who found a friend to sign the bail papers and it was the brother who "told [the applicant] that I was summoned to appear before the Revolutionary Court".
3. As noted, it is the Applicant's reference to his Kurdish ethnicity and his reference to being a "failed asylum seeker" in his November 2010 statement of claims (paras. [2] and [16] emphasised above) which give rise to the issues before me.

1. Nearly 10 years later, on 5 February 2020, the Department gave the Applicant the NOICC under s. 107 of the Act.
2. The NOICC set out that the Department had received information that the Applicant had included incorrect information in his visa application as to his brother's whereabouts: specifically, the Applicant had said that his brother was in Tehran, when in fact the brother was in Australia. In the NOICC, the Department described the information the Applicant had provided about his brother's whereabouts as a "crucial component" of the Applicant's testimony.
3. On 2 March 2020, the Applicant, by his lawyers, made a response to the NOICC. The response to the NOICC constitutes the next aspect of the material before the Tribunal as to which I must have regard in deciding whether the Applicant made the claim that he feared harm either because he was Kurdish or because if he returned to Iran he would do so as a failed asylum seeker.
4. In the Response to the NOICC, the Applicant acknowledged that he had provided incorrect information about his brother's whereabouts. As a result, he conceded that he had not complied with his obligations under s.101(b) of the Act that required that he complete his visa application "in such a way that no incorrect answers are given or provided". The Applicant conceded in his response to the NOICC that his non-compliance with s. 101(b) enlivened the Minister's power to cancel the visa under s.109.
5. His lawyers in the response to the NOICC also wrote the following:

R 2.41 prescribed circumstances

The correct information

1. The visa holder stated in his Visa application that his brother [name omitted] resided in Iran. He provided this information due to his siblings' advice. His siblings advised him that the reason is that they had not disclosed the applicant on their application. Other than the wrong information he provided in relation to the whereabouts of his brother [name omitted] at the time of visa application, the visa holder relies on his claims provided in his statement of claim is dated 27 November 2010.

[Emphasis added]

1. I add the following.
2. The decision-maker in exercising the discretion as to whether the visa should be cancelled had to proceed in accordance with s.109(1) of the Act.
3. Section 109(1) is as follows:

(1) The Minister, after:

(a) deciding under section 108 that there was non-compliance by the holder of a visa; and

(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances;

may cancel the visa.

1. That is, under s. 109(1)(b), the Tribunal had to consider the response to the NOICC.
2. Under s. 109(1)(c), the prescribed circumstances were set out in reg. 2.41(a) - (k) of the Migration Regulations 1994 (Cth). Regulation 2.41(a) was as follows:

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a) the correct information;

...

1. The Applicant's lawyers structured the response to the NOICC to address the prescribed circumstances in reg. 2.41(a) which contextualises the heading (Reg. 2.41- correct information) in the passage I have set out above.
2. The conclusory paragraph in the response to the NOICC was as follows:

CONCLUSION

1. We request the delegate to have regard to the prescribed circumstances and to the guidelines in PAM. We submit that the delegate should give weight to the following considerations weighing in favour of not cancelling her (sic) visa:
   • The visa-holder's concession in relation to his family composition;
   • His otherwise compliant behaviour in Australia;
   • The circumstances in which the non-compliance occurred;
   • The present circumstances of the visa-holder; and
   • Spending considerable period of time in Australia.

1. Before me, the Applicant emphasised par. [10] in the response to the NOICC. The Applicant submitted that par. [10] sets out that he "relies" - present tense - on the November 2010 statement of claims as to the cancellation decision and he specifically referred to his "claims" document not his application for protection more generally. He submitted that he thereby put forward the claim in his statement of claims document as a claim as to why the decision-maker should exercise the discretion not to cancel the visa and (he submits) the Tribunal was bound to consider the claim.
2. In contrast, the Minister emphasised the overall structure of the response to the NOICC in saying that the Applicant advanced no such claim. On the Minister's characterisation of the response, para. [10] did no more than communicate that all information in the original statement of claims other than that pertaining to the brother was "correct" so as to address reg. 2.41(a) which required the decision-maker to have regard to "the correct information". That is, the import of para. [10] was only to distinguish between correct and incorrect information and not to advance a separate or distinct claim that the Applicant's visa should not be cancelled because he was Kurdish or because of his status as a failed asylum seeker. The Minister also emphasised that the conclusory paragraph ([21], above) contained no argument that the Applicant feared harm because of his Kurdish ethnicity or that, if he returned to Iran, he would do so with the status of a failed asylum seeker.

The Department's procedural advice manual - cancellation of protection visas

1. I accept the Minister's submissions that the reference in the NOICC response requesting that that consideration be given to the Department's Procedural Advice Manual (PAM3) can be put to one side. The terms of the PAM3 contain a generic reference to non-refoulement obligations. The generic reference in PAM3 does not assist the Applicant to prove that that the Applicant made the claim and that the Tribunal had to consider it.

1. On 29 May 2020, after the response to the NOICC, a delegate of the Minister cancelled the Applicant's visa. The delegate noted:

In his submission, not including the incorrect information regarding his family composition and brother's whereabouts, the visa holder continues to rely on his claims as he provided in his statement of claims dated 27 November 2010.

1. The delegate also said with reference to reg. 2.41(a):

Finally, I consider the correct information to be that the visa holder does not hold the adverse profile with the Iranian government as claimed and therefore, the visa holder may not be persecuted by the Iranian government for the reasons asserted in the Statement.

1. I accept the Applicant's submission that "a claim made to the Department and referred to in the delegate's decision would, ordinarily, be before the Tribunal" (SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798, [34]).

1. The Tribunal transcript was tendered before me (Ex A1). I was taken to the relevant extracts below.
2. The Tribunal noted that in November 2010 the Applicant had made a statement in which he had outlined his claims [T3:L10-L11]:

In support of that application you have made a statement in which you have outlined your claims.

1. At T20: L33-35 and T21: L1-5 the Tribunal member said the following:

SENIOR MEMBER: I will consider whether, if your visa is cancelled and if you are removed from Australia, whether you might be subjected to harm or persecution so that Australia has an obligation to protect you.

...

SENIOR MEMBER: My understanding also is that if you don't want terribly to return to Iran, Australia would not forcefully return you to that country. I must advise (indistinct) to jump in. Is that your understanding as well? I don't believe there is an involuntary return to Iran.

1. There was the following exchange (T21: L31-L44):

INTERPRETER: (Indistinct) if this file comes up there is a possibility of anything happening to me.

SENIOR MEMBER: Well, the file is - if there is a file - it's 10 years old... Given the time that has passed, why do you think it would still be open (indistinct)?

INTERPRETER: There could be many reasons, you know. (Indistinct). Sorry, Member (indistinct). Yes. There could be many reasons because I had some political involvement and they are quire sensitive when it comes to political activities. And there is no law and order or anything in Iran. They do everything in order to preserve the regime, everything to protect it.

1. At T22: L11-29 there was the following exchange:

SENIOR MEMBER: These are very broad claims (indistinct). I need to consider your personal circumstances, not, you know, very general claims that you are making.

INTERPRETER: Member, I need you to repeat that, please.

SENIOR MEMBER: Yes. You are making very general claims, that anything can happen in Iran. But I only need to consider your personal circumstances, not these very broad claims that you are making. Have you been involved in any activities since you left Iran? Have you been participating in anything, any political or any other activities since your departure from Iran?

INTERPRETER: No.

SENIOR MEMBER: So the claims that you are making, that you might be subjected to harm, is that only in relation to the activities you claim you were involved in more than 10 years ago? Is that correct?

INTERPRETER: Yes.

SENIOR MEMBER: So I'll ask you again, given that time that has passed since you claim you were involved in those activities, why do you think you would still be of any interest to the Iranian authorities?

INTERPRETER: You know, because I'm not quite sure, if I was to return, I'm not quite sure what is going to happen. I'm not certain what may happen to me. And also, I have heard a lot that so many people got caught, detained, jailed and even some been executed. So obviously I'm scared. I'm terrified.

SENIOR MEMBER: All right. Are there any other reasons why you think you might be subjected to any form of harm or persecution, or why you think Australia has an obligation to protect you?

INTERPRETER: I'm talking about myself, why would I want to leave my own country, or my mother? My mother is an elderly lady that I left her alone. Now, obviously, I had to, you know, I quit my life (indistinct words) referring to the boat I believe, I spent five days in the ocean and I witnessed that with my own eyes, (indistinct). Why would I want to do that? Obviously, I have some issues.

SENIOR MEMBER: All right. Is there anything else that you would like to raise with me? So that may include any hardship that you may experience as a result of your visa being cancelled, or anything else that you think is relevant to my decision?

INTERPRTER: Sorry, I need to stop him. As I said, I am scared of going back to Iran, my life would be in danger in Iran.

1. A week after the Tribunal hearing, with leave, the Applicant, by his lawyers, filed a two page post-trial submission. It did not refer to any claim that the Applicant claimed to fear harm either because of his Kurdish ethnicity or on return to Iran as a failed asylum seeker.

1. The Tribunal (correctly) identified the relevant law that it had a discretion to cancel the visa under s. 109(1) and that it was bound to have regard to the prescribed circumstances in reg. 2.41(a)- (k). The Applicant alleged no error in the way the Tribunal had regard to the prescribed circumstances in reg. 2.41(a) - (k) in its reasons (TD, [20] - [37]). It is not necessary to traverse further the details of the Tribunal's decision in these reasons, because they are not relevant to the grounds of judicial review. Suffice to say, the Tribunal considered that the Applicant had "deliberately provided false information" (TD,[60]) about his brother's whereabouts in 2010 and the specific claims about his brother brought "into question the veracity of such claims". The Tribunal's view was that the Applicant was "not a person of credibility and that he may not have been truthful in other aspects of his protection claims" (TD, [59], [60]). These matters "weigh[ed] heavily" in favour of visa cancellation (TD, [24], [28]).
2. Ultimately, the Tribunal affirmed the delegate's decision to cancel the Applicant's protection visa (TD, [63]).

GROUND 1: DID THE TRIBUNAL FAIL TO CONSIDER THE CLAIM THAT THE APPLICANT FEARED HARM BECAUSE OF HIS KURDISH ETHNICITY OR AS A FAILED ASYLUM SEEKER?

1. Ground 1 is that the Tribunal failed to consider a "substantial clearly articulated argument" or a "claim that clearly emerged from the materials" that the Applicant would be harmed in Iran either because he was Kurdish or if he returned to Iran as a failed asylum seeker.
2. The Minister submitted that the claim was not made in a way which required the Tribunal to consider it.
3. I repeat that the Minister conceded that if the claim was made the reasons disclosed that the Tribunal did not consider it, and the failure to consider the claim was material and would constitute jurisdictional error.

The Tribunal is required to consider all claims which are the subject of "substantial clearly articulated argument" or claims which "clearly emerge from the materials"**

1. The Full Court said in AYY17 at [18]: "the Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers". The AYY17 Full Court continued at [18]:

...

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:

(citations omitted)

1. The concept of a "substantial clearly articulated argument" has been expressed in different ways. An important statement of the principle is to be found in Dranichikov v Minister for Immigration and Affairs (2003) 77 ALJR 1088; [2003] HCA 26, at [24] where the High Court said that a failure to consider a substantial clearly articulated argument was "at least to fail to accord...natural justice". In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 at [24] -[28] Rangiah J surveyed various authorities. In Viane, at [27], Rangiah J referred to BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; [2017] FCAFC 96 at [42] where it was said that if the applicant provides information "and that information is critical and relevant to the applicant's case the Minister is bound to consider it". Rangiah J continued at [28] to note that:

In the context of an application for a protection visa, it has been held that whether a tribunal commits a jurisdictional error by failing to consider particular documents or other material depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims: [citations omitted]

1. At [28] in Viane Rangiah J approved the statement of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] that:

The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

1. In NABE a Full Court held at [60]: "[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made". To be a claim that clearly emerges on the materials, a claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it (NABE, [58]). The Full Court said that the adverb "squarely" does not convey a "precise standard". The Full Court approved Selway J's statement of the position in SGBB v Minister for Immigration and Border Protection [2003] FCA 709 at [18] that the question is whether the Applicant has "sufficiently raised the relevant issue that the Tribunal should have dealt with it". The NABE Full Court (at [62]) further approved Gleeson CJ's statement of principle distilled from S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1]:

a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.

1. A judgment that "the Tribunal has failed to consider a claim not expressly advanced is ... not lightly to be made" (NABE, [68]). The fact that a claim "might" be said to arise from the materials is not enough for it to be said to clearly arise on the materials (NABE, [68]).
2. Finally, in NAVK v Minister for Immigration [2004] FCA 1695 at [15] Allsop J (as he then was) explained the principle of when a claim will clearly arise on the materials. His Honour continued as to the "apparentness of the unarticulated claim" that it must 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." In NAVK, at [15], His Honour continued:

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.

Application of the principles in the current case

The Applicant made the claim in support of his application for his protection visa

1. The Minister accepted that the Applicant had as part of his 2010 visa application made a claim to fear harm because he was Kurdish. I do not accept any submission of the Minister (faintly pressed) that there was no claim to fear harm because of the Applicant's status as a failed asylum seeker. As a matter of substance, the Applicant made such a claim in support of his protection visa application. I accept that "it is artificial to attempt to divide up the bases of his fears as though one was dealing with a pleading point. The facts are a matrix; a combination of interrelated facts..." (Minister for Immigration and Citizenship v SZQPA [2012] 133 ALD 242, [2012] FCA 1025, [42]). Also, in NABE (at [60]) the Full Court had approved Selway J's statement in SGBB at [18] that the identification of a claim is not to be "treated as an exercise in 19th Century pleading".
2. In my assessment, the Applicant made a compound claim in support of his application for protection visa (perhaps with two integers) in his statement of claims that he feared harm because he was Kurdish and if he returned to Iran he would have the status of a failed asylum seeker.

1. It is necessary to draw a line of demarcation between material the Tribunal must consider and material it need not consider. As to lawyers drawing lines, in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 402 Windeyer J said:

the lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop were in the particular case the good sense of the jury or the judge decides.

1. Relatedly, in DOU16 v Minister for Home Affairs (2019) 272 FCR 358; [2019] FCAFC 212 at [35] a Full Court said that determining whether a claim clearly emerged from the materials "involves an issue of judgment". Doubtless, where the line is to be drawn will depend upon the facts of the particular case.
2. Nonetheless, whether the Tribunal had to consider a claim made is an evaluative decision (not a discretionary decision): there can be only one correct answer.
3. I note also that the language courts have deployed in delineating between a claim which must be considered and a claim which need not be considered - the Tribunal must consider a claim the subject of a "substantial clearly articulated argument" or a claim that "clearly emerges from the material" - is language which conveys that there will be occasions in which although a matter is detectable on the material, it falls short of the threshold of a substantial clearly articulated argument or a claim that clearly emerges from the material. Not every matter that is mentioned, crosses the threshold to become a claim the Tribunal must consider.
4. Rangiah J observed in Viane at [27], there was no suggestion that the Tribunal is only bound to consider information that is "critical and relevant". "Critical and relevant" is a higher benchmark than a claim which is the subject of substantial clearly articulated argument or which clearly emerges. That said, for claims to be the subject of "substantial and clearly articulated" argument requires the identification of how the argument was "substantial" and "clearly articulated" or how it is that the claim "clearly emerged".
5. Having regard to the authorities as traversed above, the issue is whether the claim was made is a matter of "substance", not form; involves an assessment of whether the claim was "sufficiently raised" (SGBB, [18]); requires adopting a "practical and common sense approach to everyday decision-making" (NAVK, [15], requires the "claim" to be assessed with reference to the "cogency of the material" (Viane, [28]) and with reference to "the importance of the material to the exercise of the tribunal's function" (SZRKT, [111]).

Did the Applicant make the claim as a reason his visa should not be cancelled?

1. I am concerned to consider the claims made on the cancellation decision as contrasted with the claims made in support of the initial application for a protection visa. The issue is really what to make of para. [10] of the response to the NOICC and its reference to the claims made in support of the application for a protection visa 10 years earlier in the context of the whole of the material as to the cancellation decision. I repeat that para. [10] of the response to the NOICC was as follows:
   1. The visa holder stated in his Visa application that his brother [name omitted] resided in Iran. He provided this information due to his siblings' advice. His siblings advised him that the reason is that they had not disclosed the applicant on their application. Other than the wrong information he provided in relation to the whereabouts of his brother [name omitted] at the time of visa application, the visa holder relies on his claims provided in his statement of claim is dated 27 November 2010.

1. The Applicant submitted that the "high point" (T11: L1) of his argument was the passage set out above. He submitted that the use of the "present tense" in referencing and relying on claims in the statement of claims in his response to the NOICC meant that he had put forward the claim (not only as a reason he should be granted the visa in 2010) but as a claim as to why the visa should not be cancelled in 2021. He also submitted that in deciding whether the claim was made I should note that (subsequently) the delegate as the primary decision-maker recognised the fact of the claim and that "a claim made to the Department and referred to in the delegate's decision would, ordinarily, be before the Tribunal" (SZEIV, [34]). In this case, he continued that nothing that occurred in the Tribunal constituted the subsequent abandonment of a claim which was before the delegate. That sequence of events meant that the claim was before the Tribunal and the Tribunal was bound to consider it.
2. The Minister characterised the response to the NOICC quite differently. The Minister countered that the response to the NOICC "was not an adoption of his claims as a matter relied upon in support of the non-cancellation outcome" (MS, [30(a)]). The Minister submitted that (MS, [30]):

However, nothing in his interactions with the Department or Tribunal as part of the separate cancellation process, occurring nine to ten years after that claim was made, indicated that he relied upon that claim (or his status as a failed asylum seeker) as a matter bearing upon the exercise of the cancellation power.

1. I interpolate that - in this case - in analysing para. [16] of the statement of claims in combination with para. [10] of the response to the NOICC, I have not discerned any difference in analysing the issue as to whether those matters constituted a "substantial clearly articulated argument" or, in contrast, claims which "clearly emerged on the materials". From the Applicant's standpoint, as long as the references amount to one or the other, that is sufficient to make good the Applicant's argument. I also accept the Applicant's submission that a poorly made claim may still nonetheless be a claim that is made (T57: L17-18).
2. On balance, the Applicant has not proved that the Tribunal was bound to consider the claim. The claim was not the subject of substantial clearly articulated argument nor did it clearly emerge from the materials.
3. In this case, reading the response to the NOICC, the reference to the statement of claims from 2010 is a passing reference, made in the context of delineating correct and incorrect information under reg. 2.41. Read as a whole, the Applicant encapsulates his substantial and clearly articulated arguments in the conclusory paragraph of the response to the NOICC at [21] and it is those claims that clearly emerge on the materials. In paragraph [21] he set out his substantial clearly articulated arguments that that the delegate should give weight to his concession as to his family composition, his compliant behaviour in Australia, the circumstances in which the non-compliance occurred, his present circumstances and the fact that he had spent considerable time in Australia as claims as to why the delegate should not cancel his visa. Notably omitted from the conclusory paragraph is any reference to any claim that he feared harm because of his Kurdish ethnicity or because of his status as a failed asylum seeker.
4. The delegate's passing reference to his claims as made in the statements of claim dated 27 November 2010 does not advance the Applicant's argument.
5. The transcript references I have set out above - also do not advance the Applicant's argument. Although I accept the Applicant's position that there was no abandonment of an earlier claim at no stage in the course of the Tribunal hearing did the Applicant expressly or, even in passing, advance the claim or advert to material that he feared harm because he was Kurdish or a failed asylum seeker.
6. In the post-trial submission, the claim was not referred to.
7. In this case, on my evaluation, the Applicant's Kurdish ethnicity and his status as a failed asylum seeker were claims he made in support of his application for a protection visa. Then, years later in the context of the Tribunal's decision as to the cancellation of his visa, references to the fact that he was Kurdish and would have the status of a failed asylum seeker if he returned to Iran were mentioned but had the character of passing references but did not have the character of a claim that the Tribunal was bound to consider. The "claim" was the subject only of a cross-reference in the response to the NOICC in a broader document, prepared by lawyers, which carefully itemised the claims the Applicant wished the Tribunal to consider. In the course of the Tribunal hearing and, subsequently, in the post-hearing submission, the Applicant did not press or even refer to the claim. Accordingly, having regard to the totality of the material on the cancellation decision, the claim was a matter mentioned but did not cross the threshold so as to constitute a claim that the Tribunal was bound to consider. The "claim" was not sufficiently raised, or not of sufficient importance, that the Tribunal had to consider the "claim" on the cancellation decision. To find the claim was made and that the Tribunal was bound to consider it, adapting Gleeson CJ's analysis in S395, is to analyse the Tribunal's decision in the light of that which has occurred to the applicant, or his lawyers, at some later stage in the process.

1. Finally, it is accurate to say, as the Minister submitted, that some greater latitude is given to self-represented visa applicants: which was not the case here (CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74]- [75]). Lawyers prepared the response to the NOICC. The Applicant was legally represented at the Tribunal. Lawyers prepared the post-hearing submission.
2. Although I have approached the matter on the basis that either the claim was the subject of a substantial clearly articulated argument or clearly emerged from the material (or did not), I am fortified in my conclusion fact that the latitude accorded to self-represented applicants is not available to the Applicant in this case.

GROUND 2: FAILURE TO PUT THE APPLICANT ON NOTICE OF ISSUES IN REVIEW?

1. Ground 2 is that the Tribunal failed to put the Applicant on notice that it might find he no longer feared harm in Iran on the basis of his Kurdish ethnicity or his status as a failed asylum seeker. Part of Ground 2 appears to be that the Applicant argues that the Tribunal rejected the Applicant's claim that he subjectively feared harm because of his Kurdish ethnicity or because of his status as a failed asylum seeker.
2. On my conception of the Tribunal's reasons, the Tribunal did not reject any claim that the Applicant subjectively feared harm because of his Kurdish ethnicity or because of his status as a failed asylum seeker, rather the Tribunal did not consider any such claim. It was not bound to do so because the claim was not the subject of substantial clearly articulated argument nor did it clearly emerge from the materials.
3. I accept the Minister's submission that Ground 2 is "premised" on the Applicant having made the relevant claim. Ground 2 is a procedural fairness claim. If the claim was not made and was not considered, as a matter of logic it cannot be a breach of procedural fairness not to put the Applicant on notice of that which was not considered.
4. In analysing Ground 1, I have found that the claim was not made and that the Tribunal did not consider the un-made claim.
5. Because of my analysis of Ground 1, Ground 2 falls away and has not been made out.

1. Ground 3 is also closely tied to Ground 1.
2. Ground 3 is as follows:

The Tribunal's finding at [49] that the applicant only feared harm for reasons of his political activities was legally unreasonable, irrational, or illogical, and/or the Tribunal failed to make an obvious and critical inquiry.

The applicant told the Tribunal there was no other basis due to which he was fearful of harm. The Tribunal has formed the view that non-refoulement obligations do not arise in this case.

1. I accept the Minister's characterisation of the opening sentence of [49]: it is not a finding, but a recollection of what the Applicant told the Tribunal. I repeat that one exchange during the hearing (part of a longer exchange are set out above (T22: L17-20)) was as follows:

SENIOR MEMBER: So the claims that you are making, that you might be subjected to harm, is that only in relation to the activities you claim you were involved in more than 10 years ago? Is that correct?

INTERPRETER: Yes.

1. With regard to that extract from the transcript, I accept the Minister's submission that the Tribunal's statement in the opening sentence of [49] of its reasons is an accurate recollection of the words the Applicant actually said.
2. In a broader context, had there otherwise been a claim that the Applicant feared harm because he was Kurdish or because of his status as an failed asylum seeker, I would not have interpreted his answer as constituting an abandonment of an extant claim. To do so, would omit the particular context in which the question was asked and answered.
3. I conceptualise the Tribunal's reasons as follows: the claim was not the subject of a substantial clearly articulated argument nor did it clearly emerge from the materials. As a result, the Tribunal was not bound to consider the claim. In fact, the Tribunal did not consider the claim. Because the Tribunal did not in fact consider such a claim, there is no consideration to analyse to conclude that any consideration was unreasonable in the legal sense. The necessary premise for a conclusion that how the Tribunal reasoned as to a claim was unreasonable in the legal sense is absent. There are no reasons as to how the Tribunal dealt with the claim because the Tribunal did not deal with the claim at all.
4. The second aspect of Ground 3 is that the Tribunal failed to make an "obvious and critical inquiry".
5. The High Court explained in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196; [2024] HCA 2 at [25] that a failure to make an inquiry about a potential fact that was readily ascertainable and was critical or central to the decision may either be a "constructive failure to exercise jurisdiction or the legally unreasonable exercise of a particular duty or power". In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 [2009] HCA 39 at [25] the High Court had said that a failure to make an "obvious inquiry" about a "critical fact" the existence of which was "easily ascertained" may be unreasonable in the legal sense.
6. With reference to the High Court authority in Ismail and SZIAI, in circumstances in which the Applicant had not made the claim, I do not accept that it was an "obvious inquiry" for the Tribunal to make: do you make a claim on the basis of your Kurdish ethnicity or status as a failed asylum seeker? The Tribunal was entitled to deal with the claims as made and not to seek out any further claim. In any event, at a practical level, the Tribunal transcript discloses that the Tribunal - more than once - gave the Applicant any opportunity to raise any other claim which the Applicant did not do, and in particular he did not raise a claim that he feared harm because he was Kurdish or would, if he returned to Iran, do so as a failed asylum seeker.
7. Ground 3 has not been made out.

1. I will dismiss the application. I will order that the Applicant pay the Minister's costs fixed in the amount of $8,371.30.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.