Ground 1
68 It is important to note that by the particulars, the appellant contends that the Authority had to consider whether she would be at real risk of harm however she might be returned to Iran, whether voluntarily or involuntarily.
69 As noted, the Submission before the Authority expressly referred to a claim that was said to be inferred based upon a forcible (non-voluntary) return. The error was said to relate to the failure to consider that claim. It was not suggested in the Submission that the delegate had erred by having regard to the potential consequences of a voluntary return.
70 Having regard to country information, which the Authority identified as the DFAT Report 2016, it concluded that the appellant would not be returned to Iran forcibly and Iranian overseas missions will not issue travel documents to facilitate any such involuntary returns.
71 Therefore, any further pursuit by the Authority of the potential consequences for the appellant in Iran because of any forcible removal and absent any travel documents was hypothetical. It is unclear what evidence the Authority could properly have considered about the consequences of the appellant's involuntary return, when the country information disclosed that no such returnees were being accepted by Iran at the time. Consideration of the purported consequences would likely have been speculative.
72 It is not the case that the Authority did not consider the question of forcible or involuntary return. It did so. It concluded that it did not accept that there is a real chance the appellant would be forcibly removed to Iran in the reasonably foreseeable future, thus undermining the fundamental premise upon which the claim was founded. Failure to embark upon a further process of speculation about the effects of hypothetical circumstances that the identified country information revealed would not arise, did not constitute jurisdictional error. From the reference to 'real chance' (in its para 16) it is apparent that the Authority had regard to the definition of 'well-founded fear of persecution' in s 5J(1) and found that the criteria were not met.
73 Therefore the only reason the appellant's claims of the consequences for her upon a return to Iran remained relevant was in the context of a voluntary return. That was the only way she might return to Iran.
74 The consequence of a voluntary return, a matter that by ground 1 of the amended notice of appeal the appellant contended needed to be addressed, was in fact addressed by the Authority. Indeed, it can be assumed that in the face of that ground of appeal, the appellant might have contended that the Authority would have erred if it had failed to continue to consider the claims in the context of a voluntary return.
75 In particular the Authority:
(a) considered the consequences of action by the identified man or the Savari tribe, but did not accept that she faced a real chance of harm from them on a return that would be some four years after the events;
(b) considered the claim of gender discrimination as a woman, but found it did not consider the appellant faces a real chance of serious harm on that basis;
(c) considered the consequences on arrival for a voluntary returnee, noting they will generally only be questioned if they attract attention, and so found that the prospect of the appellant being questioned were remote;
(d) considered the consequences of her returning and being perceived to be a convert to Christianity, and found that there was no evidence that she would attract attention on that basis, and so it was not considered that she would face persecution for that reason; and
(e) considered the consequences for a voluntary returnee as a failed asylum seeker, noting it is not a criminal offence to seek asylum and finding in the absence of any dissident profile, there is no real chance the appellant would be harmed for that reason.
76 The Authority's complementary protection assessment thus also proceeded on the basis of the consequences of a voluntary return, the Authority having already assessed that there was no basis upon which a return to Iran would be a forced removal.
77 I do not consider any error is disclosed in the Authority's reasoning. It undertook the statutory task required of it. Its absence of satisfaction as to involuntary return was well-founded. It then assessed the appellant's claims premised on a voluntary return, the only return potentially open in the circumstances.
78 It is important to consider this outcome having regard to the respective authorities referred to by the primary judge and the parties.
79 There are some similarities between the facts of this matter and those of CLS15. In CLS15 the appellant, an Iranian national, also arrived in Australia without travel documents. He claimed he would suffer persecution if he were returned to Iran as a failed asylum seeker. He claimed to have converted to Christianity. He claimed he would be stopped and questioned upon return as a failed asylum seeker, and his claim to have converted to Christianity would be revealed to authorities. His claim was clearly articulated on the premise that he would be 'forced' to return to Iran if he were not granted a protection visa: at [41].
80 It appears that the Tribunal in CLS15 relied on similar country information to that relied upon by the Authority in this case. The Tribunal noted that 'Iran says it does not accept involuntary returnees' and that 'Iranian overseas missions will not issue travel documents to an Iranian that a foreign government wishes to return involuntarily': at [31].
81 The appellant contended that the Tribunal had not assessed his claim that he would only return involuntarily. However, as Charlesworth J found, the Tribunal disclosed confused thinking as to whether the appellant's claim was based on a voluntary or involuntary return. The primary judge appeared to assume that the Tribunal proceeded on the basis that a return would be involuntary, but then also proceeded to consider the appellant's claims of persecution if he were so returned. The Minister submitted on appeal that it was to be inferred that the Tribunal proceeded on the basis that any return was voluntary. This submission was rejected by her Honour:
[57] 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.
…
[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.
82 As Charlesworth J explained, it was the Tribunal's reasoning process in CLS15 that led it into error. The Tribunal failed to address the protection claim before it and so failed to apply the statutory criteria.
83 In contrast, in this case it is clear that the Authority considered the claim to which the appellant's lawyers expressly drew attention in their Submission. The Authority referred to the Submission (para 4 of its reasons) and recited it (para 16 of its reasons). It considered and found that the appellant would not be returned to Iran involuntarily. It dealt with that claim unambiguously.
84 There is, however, a further distinguishing feature of this case when compared with CLS15. It is to be recalled that by ground 1 the appellant contends that the Authority was also obliged to consider the consequences of a voluntary return. In contrast to CLS15, it is by no means apparent from the appellant's claim that she would not return voluntarily under any circumstances. Therefore it is not surprising that the Authority also considered the appellant's protection claims in the context of a voluntary return, a consideration said to be relevant by ground 1 of this appeal. The outcome of that consideration in any event makes no difference to the finding that the Authority was not satisfied that the appellant would be returned involuntarily.
85 The present case shares some similarities with EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (Logan J). In EYJ17 there was no material before the Tribunal that suggested the visa applicant would only return to Iran involuntarily. The visa applicant's claims were not premised on any forcible return. As in this case, the Tribunal member found on the basis of the country information that they were not satisfied that the visa applicant would be returned to Iran involuntarily, and then proceeded to consider the claims in the circumstances of a voluntary return, as the only way the visa applicant would be returned to Iran in the foreseeable future was as a voluntary returnee. No jurisdictional error was found in that approach.
86 The appellant referred to the decision in DFA18 v Minister for Home Affairs [2019] FCCA 258. In that case, Judge Vasta suggested that even where there is no prospect of an involuntary return, the decision-maker is obliged to make findings about the consequences if the person were returned involuntarily. Judge Vasta said:
[39] But in some ways, when I look at the matter, and whilst what I am saying is probably contrary to what was said by Charlesworth, J in CLS15, it seems to me that this does not matter. It really matters not whether the Applicant will be a voluntary or an involuntary returnee to their country of origin, because that is not what the IAA needs to consider. The IAA needs to consider what will happen if, and when, the Applicants are returned to their country.
[40] What has occurred in this case is that the IAA has noted the DFAT information that involuntary returnees will not be allowed into Iran. If that is so, then that is so. But the IAA's role is not to then say, 'well, that is the end of the matter'. The IAA's role is to look at what will happen if they are returned, and this is what this IAA has done. The criteria that the IAA have to look at as to whether s.36(2)(a), being the refugee criteria, or s.36(2)(aa), the complementary criteria, have been satisfied.
87 If Judge Vasta in DFA18 was suggesting that a decision-maker, having considered and dismissed the prospect of forcible removal, was then obliged in order to properly undertake its statutory task to consider a hypothetical claim premised on such involuntary return, then such suggestion was inconsistent with the decision of Charlesworth J, exercising appellate jurisdiction, in CLS15. Had the facts not been distinguishable, I would in any event not have departed from CLS15 insofar as Charlesworth J found that if the decision-maker accepted country information that there would be no involuntary return, then it would be unnecessary for it to continue to consider the likelihood that an applicant would be persecuted or suffer significant harm on such involuntary return. As Charlesworth J said, 'The appellant could either be forcibly returned to Iran or he could not': at [58].
88 Returning to the present case, the conclusion I have reached at [77] is consistent with the authorities. I note that the appellant has not challenged the conclusion that there was no real chance that she would be forcibly returned to Iran. Nor did she challenge the fact that she had no travel documents. She accepted in written submissions that these matters were uncontentious before the Authority.
89 The primary judge correctly dismissed this ground when raised on similar terms before him. No error is disclosed on the primary judge's part and ground 1 must be dismissed.