DQF17 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 506
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQF17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 506
File number: MLG 1757 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 10 April 2025 Catchwords: MIGRATION – Temporary Protection visa – decision of the then Immigration Assessment Authority – whether the IAA erred in the manner specified in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 – jurisdictional error established – writs issued. Legislation: Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 476 and Parts 5 & 7AA
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth), rr 11 & 12 and Part 3
Cases cited: CLS15 v Federal Circuit Court of Australia [2017] FCA 577
CQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 2
DDP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 338
DMZ17 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 53
ECW19 v Minister for Home Affairs and Anor [2020] FCCA 2108
EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347
Minister for Home Affairs v EWP17 [2019] FCA 205
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submissions: 17 October 2024 Date of hearing: 9 September 2024 Place: Perth Counsel for the Applicant: Mr A P McKinnon Solicitor for the Applicant: Allens Counsel for the First Respondent: Ms C Oppel Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 1757 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQF17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the then Immigration Assessment Authority made on 10 July 2017 in file IAA17/02370.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
Amendments to the Migration Act 1958 (Cth)
The Migration Act 1958 (Cth) (the “Act”) was amended significantly on 14 October 2024 following the commencement of the Administrative Review Tribunal (the “ART”) (and by virtue of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the “Consequential Act”)).
This judgment relates to a decision of the then Immigration Assessment Authority (the “IAA”). That decision is dated 10 July 2017 and thus predates those amendments. Unless otherwise stated, any reference to the Act in this judgment is a reference to the Act as was in force at the date of the IAA’s decision (or as at the date of any relevant matter referenced in this judgment).
The applicant’s migration history
The applicant in this matter is a citizen of Iran (Court Book (“CB”) 18 & 81-89). He arrived in Australia in May 2013 as an unauthorised maritime arrival (CB 59 & 110).
On 30 June 2013, an “Irregular Maritime Arrival & Induction Interview” (the “entry interview”) was conducted by and officer of the then Department of Immigration and Citizenship (the “Department”) with the applicant (using the assistance of an interpreter) (CB 13-33).
On 25 July 2016, the Department wrote to the applicant notifying him that the bar had been lifted under s 46A(2) of the Act and inviting him to apply for a Temporary Protection (Subclass 785) visa or a Safe Haven Enterprise (Subclass 790) visa (CB 34-35). The invitation letter “encouraged” the applicant to “apply within 28 days” but noted that, if the applicant required more time, he could “take up to 60 days from the date of [the] letter” (CB 35).
On 9 November 2016, a representative from the Indooroopilly Uniting Church Asylum Seeker Support Group (the “representative”) contacted the Department on the applicant’s behalf and requested a “further extension of three months” within which to submit a visa application (CB 36).
On 21 November 2016, the Department responded to the applicant’s representative and gave the applicant an extension of time until 31 January 2017 to submit a visa application (CB 38).
On 8 February 2017, the applicant applied for a Temporary Protection (Class XD) (Subclass 785) visa (the “visa”) (CB 39-75 & 110). With that visa application, the applicant provided a statutory declaration (CB 76-79) and number of supporting documents (CB 80-101).
The applicant’s statutory declaration included the following protection claims:
(a)the applicant was born in, and is a citizen of, Iran. He is of Arab ethnicity and is a Muslim (CB 76);
(b)he was good friends with a man (who will be referenced as “AR”) who was considered an apostate, having converted from being a Shia Muslim to a Sunni Muslim and his brother (who will be referenced as “K”) who had been sentenced to 20 years in jail for being a political activist (CB 76);
(c)the applicant helped K to hide from the police by allowing him to stay at the applicant’s house or the house of a friend. The applicant heard that K was caught trying to flee Iran but K did not tell the police about the applicant’s assistance (CB 76-77);
(d)the applicant was called to an interview with Iranian Intelligence and was “questioned repeatedly and at length” about his knowledge of AR and K. The applicant claimed that the officers hid their faces, questioned him “very aggressively and threatened [him] with arrest and harm”. The officers asked the applicant about his views on religion and asked him to spy on his friends. Whilst the officers let the applicant go, he was terrified he would be arrested (CB 77);
(e)on another occasion, men on motorbikes (who the applicant thinks were Intelligence officers or Militia) “tried to assault [the applicant] with sticks” and the applicant “was only able to escape by running away”. The applicant claimed that this “sort of thing happened on a number of occasions” (CB 77);
(f)one of the applicant’s clients from one of his jobs also refused to pay him because he had been instructed by Intelligence officers not to pay (CB 77);
(g)the applicant fears that he will “be jailed, beaten and probably killed” by Iranian Intelligence or the Militia if he returns to Iran because this is what happened to him previously and because he had refused to spy on his friends (CB 77-78); and
(h)the applicant is unable to seek help from anyone, including the authorities, because those authorities will harm him (CB 78).
On 13 February 2017, the Department acknowledged receipt of the applicant’s visa application (CB 102-103).
On 3 March 2017, the Department asked the applicant to attend an interview at the Department’s Brisbane office on 20 March 2017 to discuss his visa application and protection claims (the “PV interview”) (CB 104-105).
On 20 March 2017, the applicant attended the PV interview at the Department’s offices (CB 139).
On 31 March 2017, a delegate of the Minister refused to grant the applicant the visa (CB 110-124).
On 5 April 2017, the matter was referred to the IAA under Part 7AA of the Act (CB 126).
On 26 April 2017, the applicant wrote to the IAA (by email) and explained as follows (without alteration):
The case officer did not consider the fact that I,
1. was arbitrarily detained by the authority or their agents.
2.questioned about my alleged involvement in political activities (the cause of my detainment),
3. caused I fear for my association with another person who was not a criminal.
On 10 July 2017, the IAA affirmed the delegate’s decision refusing to grant the applicant the visa (CB 137-152).
On 11 August 2017, the applicant applied for judicial review of the IAA’s decision in this Court (CB 1-7). The applicant filed an affidavit with that application annexing a copy of the IAA’s decision (CB 8-10).
On 8 September 2023, the matter was listed for a directions hearing before this Court. The applicant appeared at that directions hearing (by telephone) without legal representation (but with the assistance of an interpreter).
The applicant was advised that his matter would be listed for a final hearing before this Court on 11 March 2024 (by video link). He was also given a further opportunity to file any amended application, any additional evidence and written submissions (by 1 December 2023).
No materials were filed by or on behalf of the applicant prior to 1 December 2023.
On 22 December 2023, written submissions were filed on behalf of the Minister.
On or about 15 February 2024, the applicant obtained pro bono legal representation from Allens. Ms Vanessa Miao (“Ms Miao”) from Allens wrote to the Court on that date and advising of Allens’ recent appointment and providing signed consent orders allowing the parties time to file further materials and vacating the hearing date of 11 March 2024 (because pro bono counsel was not available on that date).
On 16 February 2024, a notice of address for service was filed by Allens on the applicant’s behalf.
On 23 February 2024, the Court made orders allowing the parties time to file further materials and adjourning the final hearing to 14 June 2024.
On 26 February 2024, an amended application was filed on behalf of the applicant.
The applicant’s amended judicial review application is brought pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the IAA fell into jurisdictional error.
AMENDED APPLICATION TO THIS COURT
As outlined above, an application for judicial review was filed in this Court on behalf of the applicant on 26 February 2024.
On 27 February 2024, Ms Miao advised the Court that pro bono counsel for the applicant could not attend the hearing scheduled for 14 June 2024 and provided “available dates” for the hearing to be re-listed.
On 4 March 2024, the Court agreed to re-list the final hearing to 9 September 2024. The parties were notified of that new listing date (via email) accordingly.
On 5 April 2024, written submissions were filed on behalf of the applicant, together with the affidavit of Ms Miao (affirmed on 5 April 2024) (the “Maio affidavit”).
On 19 April 2024, written submissions were filed on behalf of the Minister.
The materials before the Court (at the time of the hearing on 9 September 2024) included a Court Book numbering 152 pages (marked as Exhibit 1), written submissions filed on behalf of the Minister on 22 December 2023, an amended application for judicial review filed in this Court on 26 February 2024, written submissions filed on behalf of the applicant on 5 April 2024, the Miao affidavit and further written submissions filed on behalf of the Minister on 19 April 2024.
The parties appeared at a hearing before this Court on 9 September 2024 (by video link).
The applicant was represented at the hearing by Mr Alexander McKinnon (“Mr McKinnon”) of counsel. The Minister was represented by Ms Catherine Oppel (“Ms Oppel”) from the Australian Government Solicitor. The Court notes that Mr McKinnon appeared pro bono and extends its gratitude for the considerable assistance provided by counsel in this regard.
At the hearing of this matter on 9 September 2024, an issue was raised by Mr McKinnon (on behalf of the applicant) which was not previously raised (either in the amended application filed on behalf of the applicant on 26 February 2024 or in the written submissions filed on behalf of the applicant on 5 April 2024). Relevantly, Mr McKinnon submitted that the IAA had erred in the manner identified in CLS15 v Federal Circuit Court of Australia [2017] FCA 577 (“CLS15”). That is, the IAA failed to unambiguously address the applicant’s claim that he would be forced to return to Iran if he was not granted a temporary protection visa.
Whilst this issue was briefly referenced in submissions by the Minister (at [44] of written submissions filed on 22 December 2023 and prior to the applicant obtaining pro bono assistance), the Court considered it beneficial to allow the parties time to file further written submissions addressing this point.
Orders were made by the Court in this regard (at the hearing on 9 September 2024) as follows:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
3.The first respondent is to file and serve further written submissions by 7 October 2024.
4.The applicant have leave to file any written submissions in reply by 21 October 2024.
In accordance with those orders, additional further written submissions were filed on behalf of the Minister on 4 October 2024. Written submissions in reply were filed on behalf of the applicant on 17 October 2024.
This additional issue will be considered by the Court below.
THE IAA’S DECISION
Given the confined issues raised by the parties in this matter (discussed further below), and the limited portions of the IAA’s reasons referenced by the parties before this Court, it is unnecessary for the Court to set out the IAA’s reasons in detail. The Court will, instead, review those paragraphs in the IAA’s decision referenced by the parties.
Those paragraphs provide as follows (footnotes omitted):
Returned asylum seeker from Australia and/or a western country
36.Although not expressly claimed by the applicant, the delegate considered whether the applicant would be harmed because he would be regarded as a failed asylum seeker. I accept the applicant has sought asylum in Australia and has resided here for over four years. I accept he will be returning to Iran having sought asylum in Australia.
37.According to DFAT, Iran says it does not accept involuntary returnees. However, in practice, border authorities regularly accept Iranians with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian. Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran. Officials provide assistance to Iranians who wish to voluntarily return to Iran, even if they left irregularly. Strong anecdotal evidence suggests that officials do not attempt to prosecute a voluntary returnee—largely because most failed asylum seekers leave Iran legally (e.g. regular departure through airports or with passports).
38.From DFAT’s anecdotal observation at airports, a voluntary returnee (complete with IOM bags) does not attract much interest from authorities amongst the large regular international movements of Iranians. Credible sources have told DFAT that returnees will generally move quickly through airports – usually Tehran Imam Khomeini – without official interest. Where temporary travel documents have been issued by Iranian diplomatic representatives overseas, authorities at the airport will be forewarned about a person’s return because of Iran’s sophisticated government systems. Irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport, credible sources have told DFAT that they will generally only be questioned if they had done something to attract the specific attention of authorities. The vast majority of people questioned would be released after an hour or two. Other information before the delegate suggests those who have not committed a crime or violation will not have a problem returning to Iran. It is usually those who have been politically active, had close relatives or associates who have been politically either before or after the 2009 elections that might be at risk of harm on return to Iran. As already noted the applicant is not a political person nor has he or his family ever been part of a political party or taken part in political protests. On the evidence before me I am satisfied having regard to the applicant’s personal circumstances, including his ethnicity, would not attract the adverse attention of the Iranian authorities. I accept the applicant may be questioned by the authorities on his re-entry to Iran and even detained for a brief period of time as returnee. I am not satisfied that this treatment of being questioned or detained briefly would amount to serious harm.
39.Even if I consider these factors in their totality, the applicant’s previous interactions with the authorities, Arab ethnicity, the fact he is a non practising Muslim and his return after a four year absence having sought asylum in Australia, I am not satisfied that the combination of these factors would put them at risk. I find that the applicant does not have a well-founded fear of persecution on any of these bases.
THE DECISION IN CLS15
As noted above, at the hearing of this matter, counsel for the applicant raised an additional issue not addressed in the applicant’s grounds of review.
Relying on the decision of the Federal Court in CLS15, counsel argued that the IAA had erred in its consideration of how the applicant would be dealt with if he were returned to Iran and whether he would be doing so as a voluntary or an involuntary returnee.
As discussed below, this argument has merit and, as such, is the focus of this judgment (rather than the grounds of review as articulated in the amended application filed in this Court).
The Minister provided a clear and concise overview of the decision in CLS15 in the additional further written submissions filed in this Court on 4 October 2024.
Court adopts the Minister’s summary and repeats it below (with minor amendments and additions), as follows.
CLS15 had claimed before the Administrative Appeals Tribunal (the “Tribunal”) that he would suffer serious or significant harm or persecution if he were returned to Iran as a failed asylum seeker. Justice Charlesworth (for the Federal Court) explained as follows:
41.…His claim was clearly articulated as one based on a premise that he would be ‘forced’ to return to Iran.... He alleged that upon his return he would have the status of a person who had made a failed claim for asylum in Australia [which included Christian conversion] ... and 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... his failed claim for asylum [and his conversion claim] would come to the authorities’ attention because of his forcible removal from Australia’.
Her Honour considered the fact that the appellant had never made any claim founded on a premise that he would return to Iran other than by forcible removal “important” and noted that “no occasion arose for the Tribunal to consider the appellant’s protection visa application on the assumption that he would ever return voluntarily”: CLS15 at [57]. Her Honour found that “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”: CLS15 at [58].
In concluding that there was jurisdictional error, Her Honour ultimately found as follows:
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.
PARTIES’ SUBMISSIONS IN RELATION TO CLS15 AND THE ADDITIONAL ISSUE RAISED AT HEARING
Minister’s written submissions
The Minister’s written submissions (filed in this Court on 22 December 2023) relevantly provide as follows:
(a)the IAA’s consideration of whether the applicant had a well-founded fear of persecution if he returned to Iran on the basis of being a failed asylum seeker encompassed circumstances of both voluntary and involuntary return (the applicant having made no express claim about the manner of his return) and thus the IAA did not fall into the error identified in CLS15; and
(b)similarly to Judge Driver’s conclusion in CQX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCCA 2 at [47], “the [IAA] did not fail to deal with any claim by the applicant that he would be involuntarily returned because no such claim was made. The [IAA] dealt with the circumstances of the applicant’s possible return to Iran as best it could envisage in those circumstances.”
Applicant’s oral submissions
In oral submissions before this Court, Mr McKinnon submitted as follows on behalf of the applicant:
(a)regarding whether the applicant has a well-founded fear of persecution in relation to his return to Iran, the applicant draws the Court’s attention to the IAA’s findings at paragraphs [36]-[39] of the IAA’s decision;
(b)the starting point is at paragraph [36], where the IAA states that there is no express claim by the applicant that he would be harmed because he would be regarded as a failed asylum seeker;
(c)the applicant takes issue with that statement (for reasons that will be detailed in due course);
(d)importantly, what is also missing from paragraph [36] is a finding as to whether the applicant would be a voluntary or an involuntary returnee;
(e)when reading the IAA’s reasons at paragraphs [37]-[38] with a close eye to detail (but not unreasonably so), it is apparent that there is the prospect of an involuntary return dealt with by the IAA. However, there is an element of impossibility to it, particularly as the IAA says that Iranian authorities will allow people “with valid Iranian travel documents returned involuntarily or even those without documentation if persuaded they are Iranian”;
(f)what that means is not made clear because it is a very vague sentence and it is not expanded upon. Importantly, the IAA then says (at paragraph [37]) that “Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran”;
(g)the issue here is that, when looking at paragraph [38] of the IAA’s reasons, it actually deals with voluntary returnees. It is not possible then to discern from the reasoning at paragraphs [36]-[39] whether the IAA is saying that the applicant has no well-founded fear of persecution because he is a voluntary returnee or an involuntary returnee;
(h)it is clear that the applicant is an involuntary returnee. This then calls into question the first sentence of paragraph [36] (which appears to be incorrect);
(i)the record is replete with references to the applicant not wanting to return to Iran;
(j)common sense dictates that, if one makes such a treacherous voyage, one probably would not want to return;
(k)this is similar to the case of CLS15 where Justice Charlesworth, at paragraph [60], stated that:
…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...
(l)the applicant’s statutory declaration (provided with his visa application and contained at CB 76-79) contains various references to him not wanting to return to Iran – such that it is clear that the applicant would be an involuntary returnee;
(m)for example, at paragraph [1] of the applicant’s statutory declaration (CB 76) the applicant states that he is “seeking protection in Australia” so he “[does] not have to return to Iran”;
(n)further, at paragraph [9] of the applicant’s statutory declaration (CB 76), the applicant states that his statement only contains a summary of his protection claims that it is not an exhaustive statement of the “reasons why [he] cannot be forced to return to Iran”;
(o)also, at paragraphs [14]-[15] of the applicant’s statutory declaration (CB 77), the applicant states:
14.Because my problems were being caused by the intelligence people and militia, there was nowhere in Iran I would be safe.
15.If I am forced to return Iran I fear that I will be subjected to harm as the intelligence people will know as soon as I return…
(p)the applicant also made it clear that he would not return in his entry interview. This is demonstrated by the transcript of the entry interview annexed to the Miao affidavit (see pp 14) where the applicant is asked “Do you wish to be considered for voluntary return to Iran?” and he answers “No way”;
(q)there is no factual finding upon which paragraph [38] of the IAA’s reasoning could possibly be based; and
(r)the Court should find that there has been jurisdictional error and refer the matter back for reconsideration according to law.
Minister’s additional further written submissions
The Minister’s additional further written submissions (filed in this Court on 4 October 2024) relevantly provide as follows:
(a)in the present case, counsel for the applicant directed the Court to the following iterations:
(i)the applicant’s statutory declaration of 24 January 2017 that: “If I am forced to return to Iran I fear that I will be subjected to harm as the intelligence people will know as soon as I return. Because of what happened previously and because I refused to spy on my friends and have fled the country, I would be jailed, beaten and probably killed” and “I fear if I am forced to return to Iran I will not be able to seek help from anyone including the authorities...” (emphasis added); and
(ii)the applicant’s response “No way” when he was asked in his arrival interview “Do you wish to be considered for voluntary return to Iran?”
(b)Judge Riethmuller considered similar evidence in ECW19 v Minister for Home Affairs and Anor [2020] FCCA 2108 (“ECW19”) at [18]-[19], which was characterised in submissions as ECW19 identifying that he was not open to voluntary return. Counsel for ECW19 submitted that ECW19’s case was “put on the basis of an involuntary return” and had “erroneously been determined on the basis of a voluntary return”: ECW19 at [21].
(c)Judge Riethmuller did not accept those submissions. Instead, his Honour distinguished ECW19’s case as one that did not require careful consideration of CLS15 because “there was no material or argument before the IAA to the effect that there was a difference between a person who returned voluntarily to Iran and a person who may be extradited from Australia”: ECW19 at [22]. Instead, like EYJ17 v Minister for Immigration and Border Protection [2019] FCA 347 (“EYJ17”) at [10] and Minister for Home Affairs v EWP17 [2019] FCA 205 (“EWP17”), the IAA was “not obliged to assess return scenarios that had not been posited”: ECW19 at [22].
(d)like the present matter, in ECW19 and EWP17, the IAA dealt with the claim as put. In ECW19, “it was merely put that the risk arose if he was identified returning” (at [23]) (emphasis added). Similarly, in EWP17, the applicant’s claim was that “he is likely to come under scrutiny of Iranian officials and questioned on return” (at [13]). Both Justice Logan and Judge Riethmuller concluded that the claims as made – which were that the respective applicants were fearful that, on return, they would come to the attention of the Iranian authorities – were sufficiently addressed by the IAA in those cases. In EWP17, the IAA addressed and rejected that claim by considering Department of Foreign Affairs and Trade (“DFAT”) country information that “irrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport ... they will generally only be questioned if they have done something to attract the specific attention of authorities”: EWP17 at [14] (emphasis added). In ECW19 at [24], Judge Riethmuller was:
not persuaded that there is anything raised by the applicant in his material in this case on the question of an involuntary return potentially having a different outcome to a voluntary return in circumstances where the decision maker acted upon the basis that with a voluntary return the authorities in Iran would be alerted to the applicant’s return.
(e)similarly, in the present case, the IAA addressed the applicant’s claim that he would be forced to return to Iran and the Iranian authorities would therefore “know as soon as [he returned]” when it applied the same DFAT country information as relied upon by the IAA in EWP17 – namely, that “[i]rrespective of whether a returnee is travelling on a temporary travel document or their ordinary passport ... they will generally only be questioned if they had done something to attract the specific attention of the authorities.” The IAA accepted that “the applicant may be questioned by the authorities on his re-entry to Iran and even detained for a brief period of time as a returnee.” But it was “not satisfied that this treatment of being questioned or detained briefly would amount to serious harm” (IAA’s reasons at [38]). In so doing, it was open to the IAA to not consider the applicant’s risk as elevated by virtue of having “close ... associates” who had been politically active because it had rejected the applicant’s claim that he was the “closest friend” of K and AR and instead only found there to have been “some level” of acquaintance (IAA’s reasons at [17]-[18] & [38]). In circumstances where the IAA acted upon the basis that, with a voluntary return, the Iranian authorities would be alerted to the applicant’s return, consideration of the question of an involuntary return would not have had a potentially different outcome to consideration of voluntary return: cf ECW19 at [24]; and
(f)for these reasons, the Minister submits that the IAA did not err in the manner identified in CLS15.
Applicant’s written submissions in reply
The applicant’s written submissions in reply (filed in this Court on 17 October 2024) relevantly provide as follows:
(a)the applicant maintains that the IAA has fallen into the type of jurisdictional error identified in CLS15. This point was first raised by the Minister in written submissions filed on 22 December 2023 (at [44]);
(b)like the applicant in CLS15, the applicant here has clearly articulated his case on the premise that he would be forced to return to Iran if not granted a temporary protection visa. That has always been his position but the IAA’s reasons are, at best, confused and do not unambiguously address this matter. The relevant paragraphs of the IAA’s reasons are at [36]-[39];
(c)the applicant has a real fear of persecution if forced to return to Iran as a result of his association with two brothers, K and AR. The applicant fears persecution because of his membership of a particular social group, namely failed asylum seekers, if he has to return to Iran;
(d)the applicant has always maintained that he does not wish to be considered for voluntary return to Iran (CB 23, 25, 76-78 – the latter at paragraphs [1], [9], [11], [15] & [18]). This is also clear from the transcript of the applicant’s entry interview where he was asked what would happen if he returned to Iran: “I’ll be detained in prison definitely” (the Miao affidavit, p 10). When asked whether he wished to return to Iran voluntarily he said “[n]o way”. Accordingly, the applicant’s claim is one based on a premise that he would be “forced” to return to Iran if he were not granted a temporary protection visa;
(e)it was for the IAA to determine, on the evidence before it, whether or not the applicant can be forcibly returned to Iran and, accordingly, whether a fundamental premise of this aspect of his claim exists;
(f)in the IAA’s reasons, it acknowledges that Iran does not accept involuntary returnees and Iranian overseas missions will not issue travel documents to an Iranian whom a foreign government wishes to return involuntarily to Iran (CB 146). However, the IAA then considers the likelihood that the applicant would attract the attention of Iranian authorities and face serious harm on return to Iran. It is not possible to discern an unambiguous finding in relation to whether the applicant could be forcibly returned to Iran or not from the IAA’s reasons;
(g)in CLS15, Justice Charlesworth held at [56] that:
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.
(h)additionally, the IAA did not consider the risk and possible consequence of the applicant being held in immigration detention indefinitely. In CLS15, Justice Charlesworth found (at [62]) that:
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.
(i)in DDP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 338 (“DDP17”), Judge Kelly found that the Tribunal gave “passing” reference to country information and did not consider or make a finding upon DDP17’s claim that he would not return voluntarily to Iran: DDP17 at [31]-[48];
(j)Judge Taglieri considered similar evidence in DMZ17 v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FedCFamC2G 53 (“DMZ17”) and accepted submissions that it was unnecessary for DMZ17 to explicitly claim that, if refused a protection visa, his return to Iran would be involuntary: DMZ17 at [33]-[35], [67] & [97]-[102];
(k)ECW19 and EYJ17 can be distinguished on the basis that, in the present case, there was material before the IAA (from the applicant) that he would only return to Iran involuntarily;
(l)the IAA did not deal with this aspect of the applicant’s claim. There was no basis for a finding (if, indeed, it is determined that the IAA made one) that the applicant would be able to re-enter Iran as a voluntary returnee; and
(m)for these reasons, the applicant submits that the IAA engaged in confused thinking resulting in a failure to make factual findings concerning the applicant’s particular circumstances. This provides a further (and independent) basis upon which the IAA’s decision is infected by error and ought be quashed.
CONSIDERATION
Additional issue raised at hearing
As outlined above, the issue raised by Mr McKinnon (on behalf of the applicant) at the hearing of this matter was that the IAA had erred in the manner identified in CLS15. That is, the IAA failed to unambiguously address the applicant’s claim that he would be forced to return to Iran if he was not granted a temporary protection visa.
The Court disagrees with the Minister’s submission that this claim was not raised by the applicant.
The Court considers the applicant to have raised this issue as part of his claims in the following manner:
(a)in his entry interview, the applicant:
(i)claimed that he would be “detained or imprisoned deffinatley” (sic) when asked what he thought would happen if he returned to his “country of nationality” (CB 23); and
(ii)answered “no” to the question of whether he “wish[ed] to be considered for voluntary return to [his] home country” (CB 25);
(b)in his statutory declaration, the applicant stated that:
(i)he was “seeking protection in Australia” so that he “[did] not have to return to Iran” (CB 76 at [1]);
(ii)it was not “an exhaustive statement of the reason or reasons why [he] cannot be forced to return to Iran” (CB 76 at [9]);
(iii)if he was “forced to return to Iran”, he fears that he “will be subjected to harm as the intelligence people will know” as soon as he returns (CB 77 at [15]); and
(iv)he could not relocate to another part of Iran to “avoid the harm because the authorities are in control of the entire country” (CB 78 at [18]);
(c)in his entry interview:
(i)when asked what would happen if he returned to Iran, the applicant answered that “[he will] be detained in prison definitely” (the Miao affidavit, p 10); and
(ii)when asked whether he wished “to be considered for voluntary return to Iran”, the applicant answered “No way” (the Miao affidavit, p 14).
In the event that the Court is incorrect and the claim was not “expressly” raised by the applicant, it cannot be said that the claim is not apparent on the evidence before the IAA and should not have been considered by the IAA in any event.
The Court notes that similar evidence was considered by Judge Taglieri of this Court in DMZ17. As correctly submitted by the applicant (at [9] in written submissions in reply filed on 17 October 2024), Her Honour, in DMZ17, accepted submissions that it was unnecessary for DMZ17 to explicitly claim that if refused a protection visa, his return to Iran would be involuntary: DMZ17 at [33]-[35], [67]-[68] & [97]-[102]).
The Court emphasises Justice Charlesworth’s reasoning in CLS15 as follows:
56.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.
…
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).
Having assessed the authorities above, it is clear that Her Honour’s reasoning is equally applicable to the current matter and the approach taken by the IAA here. In particular, the Court notes that, as was the case in CLS15, there was “no occasion for the [IAA] to consider the [applicant’s] visa application on the assumption that he would ever return [to Iran] voluntarily”: CLS15 at [57].
Further, the Court is satisfied that there was evidence or material before the IAA (as outlined above at [56]) from the applicant that stressed that he would only return to Iran involuntarily. There was thus no basis for any finding (if it is suggested that the IAA indeed made one) that the applicant would be able to re-enter Iran as a voluntary returnee.
Paragraphs [36]-[39] in the IAA’s decision lack clarity. Paragraph [38], in particular, appears to “float”, without context and lacking any discernible connection to the evidence before the IAA or the paragraphs before or after it in the IAA’s decision.
In the circumstances of this matter, the Court finds that this ambiguity is evidence of “confused thinking” on the part of the IAA: CLS15 at [56].
Context matters. As does clarity. This is particularly so when determining an application for a protection visa matter – where the consequences of an error or any oversight on the part of the IAA can be particularly devastating. Unfortunately, the ambiguity evident in this matter leaves the applicant and the Court with no choice but to speculate about what the IAA considered when making its ultimate findings in relation to whether the applicant could (or would be able to) return to Iran as a voluntary or an involuntary returnee. More is required.
For the reasons outlined above, the Court is satisfied that the IAA erred in the manner described in CLS15.
Jurisdictional error on the part of the IAA has thus been established.
Grounds of review in the amended application for judicial review
As the “additional issue” raised at the hearing (and addressed by both parties in further written submissions filed in this Court post-hearing, as outlined above) has identified a jurisdictional error on the part of the IAA, the Court does not consider it necessary to address the applicant’s five grounds of review as articulated in the amended application before this Court.
CONCLUSION
The oral submissions (made by Mr McKinnon at the hearing of this matter) and written submissions in reply (filed on behalf of the applicant on 17 October 2024) have identified a jurisdictional error in the IAA’s decision (dated 10 July 2017).
As explained by the Court above, the ART commenced on 14 October 2024 (established by the commencement of the Administrative Review Tribunal Act 2024 (Cth) on that same date). The Consequential Act made significant amendments to, and included transitional provisions relating to, a number of Commonwealth Acts. This included repealing Part 7AA of the Act which dealt with the IAA and IAA decisions.
The Acts (referenced at [1] above) are supported by various pieces of subordinate legislation, including the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) (the “Transitional Rules”). Part 3 of the Transitional Rules deals with the IAA and provides that this Court can do anything in relation an IAA matter that it could have done prior to the commencement of the ART, including (importantly) remitting an IAA decision for reconsideration (see rule 11(3) of the Transitional Rules). Further, where the Court remits a decision of the IAA to the ART (in accordance with rule 11 of the Transitional Rules), the proceeding for review by the ART is taken to be a proceeding for review of a reviewable protection visa decision under Part 5 of the Act (as in force following the 14 October 2024 amendments, see rule 12(3) of the Transitional Rules).
The IAA’s decision will, accordingly, be set aside and the matter will be remitted to the ART for reconsideration.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 10 April 2025
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