the INVOLUNTARY RETURNEE claim
40 It is not disputed that the appellant left Iran legally on valid travel documents. By the time he arrived in Australia, however, his travel documents had been taken from him.
41 In the proceedings before the Tribunal, the appellant claimed that he would suffer serious harm or persecution if he were returned to Iran as a failed asylum seeker. His claim was clearly articulated as one based on a premise that he would be "forced" to return to Iran if he were not granted a protection visa. The claim was one that arose for consideration whether or not the appellant's claim to have converted to Christianity was accepted by the Tribunal. He alleged that upon his return he would have the status of a person who had made a failed claim for asylum in Australia founded in part on a claim that he had so converted. He asserted that he would inevitably become known to Iranian authorities because his removal would occur in circumstances that would cause him to be "stopped at the airport and detained there" and that he would be asked questions by the authorities "about where I have been and what is happening". His failed claim for asylum, based as it was on a claim to have converted to Christianity, would come to the authorities' attention because of his forcible removal from Australia.
42 Ground 2 of the amended notice of appeal alleges:
2. The Learned Federal Circuit Court Judge erred in finding that the Tribunal had exercised its jurisdiction in a legally rational manner when dealing with the Applicant's claim that he would be persecuted should he return to Iran as an imputed religious convert who had applied for asylum and alternatively that the Tribunal in so doing failed to deal with the appellant's claim as to what would occur if he were returned.
Particulars
2.1. The Tribunal appeared to deal with the Applicant's claims on the basis that he would be a voluntary returnee in circumstances where the country information clearly indicated that failed asylum seekers would only be returned if they volunteered but failed to deal with the claim that if he was forced in the future to return as an involuntary returnee he would come to the attention of the authorities.
43 The issues raised in this ground of appeal are not limited to the Tribunal's application of the criterion in s 36(2)(a). In light of what I have said at [12] above, it was the rejection of the appellant's claim to have a well-founded fear of persecution that necessitated consideration of his particular circumstances in accordance with the alternative criterion in s 36(2)(aa).
44 As the Full Court said in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] (Black CJ, French, Selway JJ):
… there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on 'a substantial, clearly articulated argument relying upon established facts' that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at [26]):
… the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.
45 The complimentary protection regime had not been enacted at the time that NABE was decided. The Court's reference to a "clearly articulated argument" is to be understood in the context of the claim for protection made in that case under s 36(2)(a).
46 I am satisfied that a clearly articulated argument was advanced by the appellant in respect of his anticipated status as a failed asylum seeker for the purposes of s 36(2)(a). I am also satisfied that the appellant claimed to be at a real risk of significant harm within the meaning of s 36(2)(aa), to the extent that it was necessary for him to expressly articulate a claim under that provision in all of the circumstances. I doubt that it was necessary, but it is not necessary to determine that issue.
47 Counsel for the Minister submitted that the Tribunal did in fact consider and determine the appellant's claim to fear persecution or significant harm because of his status as an involuntary returnee. Counsel submitted that the Tribunal's reasons disclose an implicit finding that the appellant would not and could not be returned to Iran involuntarily at all. Accordingly, it was submitted, the underlying "premise" of this part of the appellant's claim did not exist.
48 The finding is said to be implicit in paragraph 31 of the Tribunal's reasons, read in the context of the two paragraphs that follow:
31. The applicant claimed to fear persecution on return to Iran for having sought asylum in Australia. The Tribunal relies on information provided by DFAT to find there is not a real chance of the applicant being targeted for this reason:
The large Iranian diaspora seems to move back and forth between foreign countries and Iran with little difficulty and many Iranians have citizenship or residence abroad, including in North America, Europe and Asia …
According to Iranian law, it is an offence to leave Iran illegally (ie without a passport). The penalty for leaving the country illegally is either two to six months imprisonment or a fine of Rials 2000-20,000, or both. Press reports suggest there is significant leeway by judges in interpreting the law due to individual circumstances. The destruction of passports is not penalised under the laws regulating passports …
Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily to Iran. However, Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily. Officials have said Iran would assist with any person who wished to voluntarily return to Iran, even if they left irregularly. Anecdotal evidence suggests that official do not attempt to prosecute a voluntary returnee - largely because most failed asylum seekers leave Iran legally (eg regular departure through airports) …
A voluntary returnee is unlikely to attract much interest from authorities amongst the large regular international movements of Iranians.
32 The Tribunal finds there is nothing in the applicant's personal circumstance that would give him a profile such that the authorities would take an adverse interest in him upon his return. The Tribunal notes the applicant left Iran legally and therefore does not face the penalties that can be imposed on illegal departees. For the reasons given above, the Tribunal does not accept the applicant has a political profile or is wanted by the authorities, and finds there is not a real chance he'll be imputed with one upon return to Iran in the reasonably foreseeable future. Whilst the applicant may be identified as a failed asylum seeker, having rejected his other claims the Tribunal finds there is not a real chance he will be seriously harmed on return to Iran on the basis of being only a failed asylum seeker.
33 The Tribunal accepts that the applicant is a young man who is unhappy with the level of social oppression in Iran. However, for the reasons given above, the Tribunal does not accept the applicant has a well-founded fear of persecution for any Convention reason if he returns to Iran in the reasonably foreseeable future.
(Footnote omitted)
49 Of paragraph 31, the primary judge said (CLS15 at [45]):
It is implicit in the summary of the applicant's claim on this matter that [the Tribunal] was taking into account that his return to Iran, if that occurred, would be involuntary. The country information established that Iran would not accept involuntary returnees and would not issue travel documents to a person who 'wishes to return involuntarily'. The evidence before the Tribunal was that the applicant did not have a passport or other travel documents. As the first respondent submits, 'the fundamental promise' [sic premise] of the applicant's claim to fear persecution if he was involuntarily returned did not exist, at least on the evidence available to the Tribunal. The involuntariness integer was encompassed within the materials on which the Tribunal relied. The Tribunal found that the applicant's circumstances did not support a finding that he would be subjected to harm on his return on the basis of being a failed asylum seeker. I am not able to find that the Tribunal failed to consider an integer of the applicant's claim as asserted in this ground of application. As the first respondent submitted, where reasons are otherwise comprehensive, the inference that a Tribunal has failed to consider an issue should not be drawn too readily. I am not prepared to draw that inference in this matter and I am satisfied that the issue of an involuntary return was encompassed within the materials to which the Tribunal gave consideration.
(Footnotes omitted)
50 It is clear that the primary judge determined the Tribunal had considered the appellant's claim because the topic of involuntary return was averted to in the country information upon which the Tribunal said it relied. As can be seen, that information indicated that Iran refused to accept involuntary returnees without valid travel documents and that valid travel documents would not be issued to a returnee "that a foreign government wishes to return involuntarily".
51 The primary judge commenced his own consideration with a finding that the Tribunal took into account the circumstance that the appellant's return to Iran "if that occurred, would be involuntary" (my emphasis). Later in the same paragraph, the primary judge concluded that the "fundamental premise of the applicant's claim to fear persecution if he was involuntarily returned did not exist". The primary judge is to be understood as attributing to the Tribunal alternative findings: the appellant could not be returned to Iran involuntarily, but if he was to be so returned, then there was no real chance that he would be persecuted for a Convention reason and no real risk that he would suffer significant harm.
52 The Minister's submissions on this appeal concerning the Tribunal's implicit finding differed from the conclusions of the primary judge in an important respect. Counsel submitted that, on a fair reading of paragraph 32 of the Tribunal's reasons, the Tribunal should be understood as proceeding on the assumption that the appellant would return voluntarily because the Tribunal had already accepted, in paragraph 31, that an involuntary return was not possible.
53 Without being exhaustive, when considering whether an inference may be drawn from the Tribunal's reasons, particularly whether a finding is implicit, it is appropriate to have regard to:
(1) the settled legal principles against which the reasons of an administrative Tribunal are to be interpreted;
(2) the express text of the Tribunal's reasons; and
(3) the nature and consequences of the finding, having regard to the statutory context in which the decision is made.
54 In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court (French, Sackville and Hely JJ) said (at [46] - [47]):
46. … The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
55 See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Brennan CJ, Toohey, McHugh, Gummow, Kirby JJ).
56 The admonition that the reasons of an administrative decision-maker not be read with an eye keenly attuned to error does not require a court exercising powers on judicial review (or on a subsequent appeal) to adopt a strained reading of the reasons so as to save the decision from vitiable error. In circumstances where the reasons of a decision-maker may be fairly amenable to different meanings, one of which might demonstrate error, the principles stated in WAEE and Wu Shan Liang may of course require that the reasons be interpreted beneficially, that is, in favour of validity. However, not all kinds of ambiguity are suitable for resolution by preferring one of two alternative meanings. The ambiguity may be such as to evidence confused thinking on the part of the Tribunal or to fairly indicate that the Tribunal has asked itself the wrong question. In such cases, the ambiguity should not be resolved by attributing to the Tribunal implied findings that do not naturally arise from the text of the reasons for the decision, considered in light of all of the surrounding circumstances. In some cases, the very nature of the ambiguity may prevent such an implication being made. I consider this to be such a case.
57 The circumstance that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal from Australia is important. No occasion arose for the Tribunal to consider the appellant's protection visa application on the assumption that he would ever return voluntarily.
58 The country information to which the Tribunal referred in its reasons did not permit of any circumstance in which the appellant might be issued valid travel documents so as to enable his forcible return to Iran. If the Tribunal uncritically adopted that portion of the country information, then it would have been unnecessary for it to continue, as it did, to consider the likelihood that the appellant would be persecuted or suffer significant harm "on return to Iran". The appellant could either be forcibly returned to Iran or he could not. The appellant's claims, and the evidence before the Tribunal, were such that the Tribunal was obliged not only to consider which scenario would apply, but to supply an unambiguous answer to the question.
59 Paragraph 31 is concerned, by its opening words, with the question of whether the appellant would be "targeted". The word "targeted" is given content in paragraph 32. There, the Tribunal asks itself whether the appellant would come to the adverse attention of the authorities by reason of having a "profile". The appellant's claim was not restricted to an assertion that he would come to the attention of the authorities by reason of his profile in that limited sense. He relevantly claimed that he would come to the attention of the authorities in Iran because of the involuntary nature of his return there.
60 If the premise underlying the Tribunal's reasoning in paragraph 32 is that of a voluntary return, then it has erroneously assessed a claim the appellant had not in fact made. If the premise underlying its reasoning is that of an involuntary return, then that premise is not only inconsistent with the inference the Minister seeks to have drawn from paragraph 31, but gives rise to an alternative error: the Tribunal has not dealt with the claim that the appellant would necessarily come to the attention of the authorities, not merely after his forcible return but because of the forcible return. In my opinion, neither assumed premise can be safely attributed to the Tribunal. The proper inference is that the Tribunal has engaged in confused thinking resulting in a failure to make factual findings concerning the appellant's particular circumstances and a failure to apply the statutory criteria to the facts as found, particularly the criterion in s 36(2)(aa).
61 There is a further reason why the implication sought by the Minister should not be made.
62 If the appellant could not presently be forcibly returned to Iran, a legal consequence of refusing the appellant a protection visa would be that he might be detained as a non-citizen and be held in immigration detention until the attitude of the Iranian authorities in relation to the issue of travel documents to involuntary returnees changed: that is, indefinitely. There is no reference in the Tribunal's reasons to that possible consequence. The Court should be slow to attribute to the Tribunal, by inference or implication, a finding that has or may have far reaching legal and practical consequences for the appellant. That is particularly so where the reasons for the Tribunal are not expressed in comprehensive terms. The reasons in the present case comprise three paragraphs on the question, the final paragraph being summative and adding nothing of substance to those preceding it.
63 Ground 2 is made out to the extent explained in these reasons.
64 It is appropriate to set aside the orders of the primary judge and remit the matter to the Tribunal for reconsideration. It is for the Tribunal to determine, on the evidence before it, whether or not the appellant can be forcibly returned to Iran and hence whether a fundamental premise of this aspect of his claim exists. Although the evidence referred to by the Tribunal appeared to suggest only one answer to that question, it is for the Tribunal to evaluate whether or not the country information should be accepted without qualification and, if so, what consequence might then follow for the discharge of its functions and powers on its own review of the delegate's decision. The Court cannot safely conclude that the country information to which the Tribunal referred was the only evidence to which the Tribunal might have referred had it properly apprehended the issues before it.
65 A third ground of appeal concerned the Tribunal's application of the "real chance" test in connection with the appellant's claim to be a failed asylum seeker forcibly returned to Iran. In upholding Ground 2, I have determined that the Tribunal has failed to consider that integer of the appellant's claim. Accordingly, it is not necessary to consider whether the final ground of appeal is made out.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.