consideration
31 Both of those submissions are correct, and the appeal must be allowed.
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.
35 In any event, it is, with respect to the primary judge, clear on the face of the IAA's detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis. On the refugee claim, for example, the IAA expressly refers and considers in detail submissions made by the respondent's representative before it that a number of matters should be considered cumulatively (see [22]-[26] of the IAA reasons). It is not necessary to recite those passages, because counsel for the respondent did not seek to argue that the IAA's treatment of the respondent's refugee claim involved any error of law, by lack of cumulative reasoning or otherwise.
36 Counsel for the respondent's contention, ultimately, was that it was not open to the IAA to incorporate by reference into its consideration of the respondent's complementary protection claim the IAA's extensive reasons about the risks alleged in the content of his refugee claim. That is what the IAA did when it said "[f]or reasons already stated" it disallowed the claim under s 36(2)(aa): see [25] above.
37 In our view, in particular in circumstances where there was, as the primary judge put it, "no doubt" that the IAA had demonstrated "active intellectual engagement with those issues" concerning the refugee claim ([103]), the submission that it was a jurisdictional error not again to rehearse the same treatment of those issues under the rubric of the complementary protection claim need only to be stated to the rejected. Both claims involve the considered and detailed assessment of risks and it was entirely appropriate for the IAA to reason and conclude as it did, by relying on the reasons that it had already stated.
38 Counsel for the respondent also submitted that the tests for a refugee claim and a claim to complementary protection are different, which of course at a general level is true. But relevantly, both require an evaluation of a risk of harm. Once it is accepted that the risk of harm alleged is not real or significant in the context of one of those claims, and it is accepted that the reasoning does not give rise to appellable error, no such error can be demonstrated if that reasoning is incorporated as the foundation for a conclusion that there is no real or significant risk in the context of the other claim.
39 The respondent also contended that the IAA's statements that it had considered the applicant's claim for complementary protection on a cumulative basis were formulaic and did not constitute a proper consideration of the issues. In our view, that contention must be rejected because the IAA's reasons were anything but formulaic.
40 For those reasons, the appeal will be allowed, the orders of the primary judge set aside, and orders made in lieu thereof that the application to review the decision of the IAA dated 12 September 2016 be dismissed with costs. The first respondent should pay the appellant's costs of the appeal, to be agreed or assessed.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gilmour, Markovic and O'Callaghan.