IUX24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 653
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
IUX24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 653
File number(s): SYG 2712 of 2024 Judgment of: JUDGE GIVEN Date of judgment: 12 May 2025 Catchwords: MIGRATION – Where applicant had previously been granted a Temporary Protection visa which had since lapsed – whether Tribunal erred by failing to consider the previous protection assessment in determining whether application was a refugee for the purposes of the Migration Act – whether Tribunal erred by failing to inform the applicant that it would not consider the original protection assessment or would depart from the approach of the delegate Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 35A, 36, 425, 430, 501
Migration Regulations 1994 (Cth) reg 2.01
Cases cited: AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 80
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593
Commonwealth of Australia v Snell (2019) 269 FCR 18
Hazra v Minister for Immigration and Border Protection (2017) 319 FLR 81
Jia Le Geng v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v Brown (2020) 275 FCR 188
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 84 ALD 40
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448
QAATv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1
SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
Division: General Federal Law Number of paragraphs: 94 Date of hearing: 12 February 2025 Place: Sydney Counsel for the Applicant: Mr O Jones Eleven Wentworth Chambers Solicitor for the Applicant: Heretic Law Counsel for the Respondents: Mr B Kaplan Solicitor for the Respondents: MinterEllison ORDERS
SYG 2712 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: IUX24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS THAT:
1.The application made on 20 December 2024 is dismissed.
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 GIVEN
Before the Court is an application seeking review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 September 2024, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (visa).
BACKGROUND
The following background is derived from the written submissions of the applicant which was also adopted by the first respondent in his written submissions.
The applicant is a citizen of Iran. He arrived in Australia in July 2012 (CB 514 at [19]).
On 28 July 2016, the applicant applied for a Temporary Protection (subclass 785) visa (TPV) (CB 285), which constituted an application for a “protection visa” pursuant to s 35A of the Migration Act 1958 (Cth) (Act) (pursuant to reg 2.01 of the Migration Regulations 1994 (Cth) (Regulations)). As a consequence, it was a necessary condition of the grant of such a visa that the applicant satisfy the requirements of s 36 of the Act.
The applicant provided a written statement in support of his claims (CB 57 to 61) and attended an interview with a delegate of the first respondent (first delegate) (CB 309).
On 26 October 2017, the first delegate granted the applicant a TPV (CB 76 to 832).
In granting the TPV, that first delegate took the view at that time that, if the applicant was returned to Iran, there was a real chance that his Christianity would expose him to serious harm (within the meaning of s 5J(5) of the Act) (CB 83). The first delegate concluded that it was unreasonable to expect the applicant to practice his faith in private, or modify his behaviour in order to avoid the real chance of harm (for the purposes of s 5J(3) of the Act). The first delegate formed the view that the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1) of the Act.
Accordingly, the first delegate was satisfied that the applicant was a refugee as defined by s 5H(1) of the Act, and that he was a person to whom Australian has protection obligations as outlined in s 36(2)(a) of the Act for reasons which the first delegate gave CB (83 to 84) (2017 protection assessment).
The applicant’s TPV expired on 20 October 2020 (CB 521 at [127]).
On 3 August 2021 the applicant applied for a safe haven enterprise visa (SHEV).
As was the case with his TPV application, the SHEV also constituted an application for a protection visa pursuant to s 35A of the Act and, as such, necessitated a consideration of the same requirements of s 36 of the Act as had been considered in the earlier assessment. The SHEV application was also made on the basis of the same claims as were the subject of the earlier TPV application (CB 521 at [130]).
The applicant was interviewed by the delegate on 19 November 2021. The delegate refused to grant the visa on 18 May 2023 (CB 385).
On 22 May 2023, the applicant applied to the Tribunal for review. On 20 September 2024, the Tribunal affirmed the decision of the delegate.
Tribunal’s decision
The Tribunal accepted that the applicant’s evidence was somewhat compromised by memory problems (which were ultimately said by the applicant to be a result of his age) and took this into account in its assessment of his evidence. Despite this, the Tribunal was still satisfied that the applicant was able to adequately engage in the hearing before it (CB 513 at [7] to [10]).
The Tribunal summarised the applicant’s claims for protection (CB 515 at [35]) by reference to written submissions made on his behalf on 16 July 2024 (July submissions), as:
(a)he is a Christian;
(b)he is an apostate;
(c)the Iranian authorities have a photograph of him attending a church in Sydney;
(d)his conversion to Christianity gives rise to the imputation that he opposes the Iranian government;
(e)he is Azeri; and
(f)he was previously an opium addict and, if he were to relapse on return to Iran, he faces possible torture, cruel or inhuman treatment or punishment.
The Tribunal had regard to the written record of the applicant’s entry interview which had been conducted on 29 October 2012 and observed that, during that interview, the applicant described himself as having no religion. The Tribunal set out the various claims made by the applicant during the entry interview (CB 515 at [36] to [43]).
The Tribunal had regard to a statutory declaration made by the applicant on 13 August 2013 (2013 statutory declaration) attached to his protection visa application, which application was subsequently deemed invalid. The Tribunal set out the content of the 2013 statutory declaration and observed that, by it, the applicant said he did not “have a religion” although he believes in God, and that the applicant claimed to have been nervous at the entry interview which is why he “did not explain himself properly” (CB 516 at [47] to [48]).
The Tribunal referred to the applicant’s TPV application and the documents attached thereto. The Tribunal set out in considerable detail the claims contained in the protection visa application (CB 517 to 519 at [63] to [91]) and specifically noted the applicant’s claim that, if he is forced to return to Iran, he would be captured, tortured and killed, and that the Iranian government is “against his choice to change his fate”, the penalty for which the applicant said is death.
The Tribunal then had regard to the applicant’s TPV interview which took place across each of 24 August 2017 and 20 September 2017 and outlined (again in some detail) the applicant’s claims made on each of those occasions (CB 519 to 521 at [92] to [126]).
As noted above, the applicant was granted a TPV which was valid until 20 October 2020. In relation to the applicant’s subsequent SHEV application made on 3 August 2021 (being the application relevant to these proceedings), the Tribunal observed that in answer to question 9 of the document, the applicant said there was “no change to the claims for protection he made in the TPV application” (CB 52 at [127] to [130]).
The Tribunal had regard to the interview between the delegate and the applicant which took place on 19 November 2021, and outlined the applicant’s claims made therein. The applicant’s claims mostly related to his attraction to, and association with, Christianity in Iran and Australia, his arrest and imprisonment due to being involved in the importation of drugs and the applicant’s contention that he only observed Islamic practices whilst in prison “because he had been threatened” (CB 521 to 523 at [131] to [171]).
The Tribunal had regard to the “post-interview submissions” and various supporting documents provided by the applicant’s representatives to the Department of the first respondent in December 2021 (December submissions) and set out the claims contained therein.
The December submissions (inter alia) discussed the circumstances of the applicant’s departure from Iran, addressed inconsistencies in his evidence about his introduction to Christianity whilst in Iran and his religious activities in Australia (CB 523 to 525 at [172] to [185]). The December submissions said the applicant had maintained Islamic religious observances whilst in prison, in response to threats he had received in relation to his conversion to Christianity and his name change (from an Islamic to a Christian name). In this respect, the December submissions referred to the concept of taqiya in Shia Islam, which was described as “permitting the concealment of one’s faith in times of persecution”. However, the Tribunal was not persuaded that a Christian would justify concealment of his Christianity by invoking a principle of Shia Islam (CB 525 at [185] to [186]).
The Tribunal also referred to a report by a consultant psychologist (referred to by the December submissions) dated 8 February 2021 (psychologist report) which had been prepared for consideration by the sentencing judge in the applicant’s criminal proceedings. The Tribunal set out the observations and opinions contained in the psychologist report, and also noted the report indicated the applicant has suffered from depression since a young age and started to use opium to deal with his grief in or about 2013 or 2014. The Tribunal noted there was no reference to Christianity in the psychologist report (CB 525 at [190] to [201]).
The December submissions referred the Tribunal to the website of a church in Australia, at which church the applicant claimed to have been photographed. The Tribunal said (CB 526 at [203]) that despite the existence of the website:
there is no suggestion that it contains or has ever contained a photograph of the applicant.
The December submissions also urged the Tribunal to take into account the possibility the applicant has an adverse history with the Iranian authorities and that they may be aware of the photograph (CB 526 at [203] to [205]).
The Tribunal outlined the content of the July submissions which attached country information related to the treatment of drug users in Iran, and also referred to the psychologist report (CB 526 at [210] to [219]).
The Tribunal noted that the applicant did not allege he had been discriminated against in Iran on the basis of his Azeri ethnicity, and was not satisfied that he would face serious or significant harm as contemplated by the Act for that reason (CB 527 at [221]).
The Tribunal referred to various documentary evidence additionally provided by the applicant (CB 527 to 529 at [222] to [235]). It specifically noted that while the applicant’s claim to face relevant harm by reason of his mental health condition had been formally abandoned, it had taken into account the effect of the applicant’s mental health problems on his recollection when assessing his evidence (CB 527 at [222] to [223]).
The Tribunal referred to a letter dated 15 July 2025 from a pastor of a certain Baptist Church in Australia (pastor letter). The pastor letter recorded the pastor as having:
the impression the applicant was genuine regarding his Christian faith
and described the applicant as being (at CB 528 at [226]) a:
relatively new Christian [with] little Bible knowledge.
The Tribunal noted that the description of the applicant offered by the pastor letter was inconsistent with the applicant’s claims to have been studying Christianity for years (CB 528 at [227]).
The Tribunal also referred to a letter dated 2 August 2024 from a clinical psychologist (psychologist letter) provided after the Tribunal hearing, which appeared to support the applicant’s contention that he is likely to relapse to opium addiction and, by reference to a website, indicated that between 40% and 60% of recovered drug addicts do so. The Tribunal considered the information on the website and noted that the range of 40% to 60% related to relapses rather than returning to addiction, whereas the figures for people actively attempting to overcome drug addiction is a 75% rate of recovery. The Tribunal accepted the remaining 25% risk presented a real risk or a real change but noted that 5 years’ sobriety highly decreases the chance of relapse but does not extinguish it entirely. The Tribunal considered the website to be of limited assistance in assessing the likelihood of the applicant relapsing (CB 528 at [229] to [231]). The Tribunal preferred the evidence given by the applicant about his drug use rather than the assertions contained in a “Refusal of Parole” document dated 4 November 2022 (CB 528 to 529 at [232] to [235]).
The Tribunal set out the evidence given to it by the applicant about his conversion to Christianity, and accepted the applicant was baptised in Australia and had attended Christian services and bible studies since arriving (CB 529 at [247]). The Tribunal found the applicant’s evidence about his involvement with Christianity in Iran was inconsistent, noting that he had variously claimed to have had no religion when he came to Australia, to believe in God without having a religious affiliation when he came to Australia, to have been attracted to Christianity and to have done some bible study and associated with Christians in Iran, and to have attended Christian churches and “house churches” since he was about 25, about 36 and about 40 years old (CB 530 at [264]).
The Tribunal considered the applicant’s evidence and accepted that his memory of some past events has been compromised by the passage of time and the effects of stress or depression. However, because of inconsistencies in the accounts given by the applicant, the Tribunal did not accept that he attended Christian churches or “home churches”[1] in Iran (CB 531 at [267]).
[1] The Tribunal used the terms “house church” and “home church” interchangeably
The Tribunal did not accept that the applicant was a Christian, claimed to be a Christian or viewed himself as a Christian when he lived in Iran (CB 531 at [268]).
The Tribunal also did not accept that the applicant was persecuted by Iranian authorities for having to converted to Christianity (or because of any association with Christianity), nor that the applicant fled Iran because he feared serous or significant harm for those reasons (CB 531 at [269] to [270]). While the Tribunal accepted that the applicant had been baptised and attended Christian services from time-to-time since he arrived in Australia, it did not accept that he converted to Christianity other than in name, or that he would practice Christianity if he returned to Iran (CB 531 at [271] to [272]).
The Tribunal had regard to the applicant’s claims that he was regarded by Iranian authorities as an apostate and accepted he was not committed to Islam when he lived in Iran (CB 531 at [273] to [280]). However, the Tribunal did not accept the applicant’s apostacy had caused him to face either serious or significant harm as contemplated by s 36(2) of the Act when he was living in Iran, nor was it satisfied he would face relevant harm as an apostate if he returns to Iran (CB 531 to 532 at [273] to [283]).
The Tribunal did not accept that the Iranian Government has a photograph of the applicant in a Christian church and, therefore, was not satisfied that the applicant faces relevant harm by reason of such a photograph (CB 532 at [284] to [287]).
Upon considering the July submissions, the Tribunal did not accept that the applicant faces relevant harm in Iran by reason of his Azeri ethnicity (CB 532 at [288]).
In relation to the applicant’s claims regarding his opium addiction, and a possible relapse, the Tribunal accepted that the applicant had not used opium for five years and considered the applicant’s submission that he may relapse to be “speculative”. The Tribunal noted the applicant’s evidence that, after a period of 5 years, the chance of relapse is markedly diminished, although could not be excluded. The Tribunal further observed that the applicant did not regard the use of opium as particularly risky in Iran, and used it regularly. The Tribunal accepted the applicant’s evidence that he did not suffer any harm during that time (CB 532 to 533 at [289] to [304]). The Tribunal did not accept that the risk or chance of the applicant relapsing into drug constituted a ‘real risk’ or a ‘real chance’ of relevant harm because it was speculative and further, because the applicant used opium in Iran for some years and considered it to be an easy and safe activity (CB 533 at [304]).
The Tribunal found that the applicant did not meet the definition of refugee prescribed by s 5H(1) of the Act and, therefore, did not meet the criterion in s 36(2)(a) of the Act (CB 533 to 534 at [305] to [315]).
The Tribunal was further not satisfied there was a real risk that the applicant would suffer relevant significant harm and, as a result, did not engage the complementary protection criterion in s 36(2)(aa) (CB 534 at [316] to [321]).
Having concluded that the applicant is not a person in respect of whom Australia has protection obligations, the Tribunal affirmed the decision of the delegate (CB 535 at [326]).
APPLICATION TO THIS COURT
These proceedings were commenced by an application to show cause filed on 23 October 2024. The applicant has been represented by his solicitors since the inception of the proceedings, and he has been in immigration detention since being released from prison.
Upon their commencement, the proceedings were immediately placed in the central migration docket for case management and, on 26 November 2024, a Registrar of the Court made orders setting a timetable for the filing of evidence by the parties and granting the applicant an opportunity to amend.
On 11 December 2024, the proceedings were docketed to me and I made orders listing them for final hearing before me on 31 January 2025 (December orders). By the December orders, the applicant was again granted leave to amend and the parties were ordered to file written submissions in advance of the hearing date. On 15 January 2025, orders were made by consent extending the time for compliance with the timetable provided by the December orders for the filing of evidence and submissions (January orders). Understandably (given the applicant’s extant legal representation) no amended application has been filed pursuant to the January Orders, or the orders made by the Registrar in November last year. The parties filed written submissions in accordance with the January orders. I have been assisted by the submissions of the parties both in writing and at hearing.
Grounds of review
By his application, the applicant raised the following 3 grounds of review:
1.The Tribunal committed jurisdictional error in concluding that the applicant did not meet the definition of a “refugee” in s 5H(1) of the Migration Act 1958 (Cth) (Act) and was not entitled to protection pursuant to s 36(2)(a) of the Act.
a. On 26 October 2017, a delegate of the Minister concluded that the applicant was a “refugee” pursuant to s 5H(1) of the Act and made a protection finding in relation to the applicant pursuant to s 36(2)(a) of the Act (Original Finding).
b. The Original Finding has not been quashed, set aside, repealed or revoked.
c. The applicant’s claims for protection, as considered by the Tribunal, were the same as those which had been the subject of the Original Finding: [130].
d. The Tribunal concluded, contrary to the Original Finding, that the applicant was not a “refugee” pursuant to s 5H(1) of the Act and was not entitled to protection pursuant to s 36(2)(a) of the Act: [315].
e. On the proper construction of the Act, the Tribunal was bound by the Original Finding.
2.The Tribunal committed jurisdictional error by failing to consider the Original Finding, and the reasons for it, when determining whether the applicant was a ‘refugee’ pursuant to s 5H(1) of the Act and whether the applicant was entitled to protection pursuant to s 36(2)(a) of the Act.
a. On the proper construction of the Act, the Original Finding, and the reasons for it, was a mandatory relevant consideration when considering whether the applicant was a “refugee” pursuant to s 5H(1) of the Act and/or whether the applicant was entitled to protection pursuant to s 36(2)(a) of the Act.
b. Alternatively to sub-paragraph (a) above, it was legally unreasonable for the Tribunal not to have regard to the Original Finding, and the reasons for it, when considering whether the applicant was a “refugee” pursuant to s 5H(1) of the Act and/or whether the applicant was entitled to protection pursuant to s 36(2)(a) of the Act.
c. The Tribunal failed to give proper, genuine and realistic consideration to the Original Finding, and the reasons for it, in making its decision.
3.The Tribunal committed jurisdictional error by failing to consider the Original Finding, and the reasons for it, when determining whether the applicant was a ‘refugee’ pursuant to s 5H(1) of the Act and whether the applicant was entitled to protection pursuant to s 36(2)(a) of the Act.
a. On 11 March 2022, a delegate of the Minister refused the applicant’s application for a Safe Haven Enterprise (subclass 790 visa).
b. In making that decision, the delegate held that the Original Finding, and the reasons for it, were relevant information that the delegate would consider in making the decision.
c. The Tribunal failed to give proper, genuine and realistic consideration to the Original Finding, and the reasons for it, in making its decision.
d. The Tribunal did not inform the applicant that it would depart from the approach of the delegate in considering the Original Finding, and the reasons for it, in making its decision.
e. The approach of the Tribunal was procedurally unfair and/or legally unreasonable.
The applicant confirmed (in writing in advance of, and again at, the hearing) that Ground 1 is no longer pressed. However, it will be observed that the term “Original Finding” which is defined in ground 1 carries through each of grounds 2 and 3, so that aspect of ground 1 continues to be relevant.
Ground 2
By this ground the applicant alleges the Tribunal was required to consider the 2017 protection assessment in determining whether it was satisfied, in 2024, that the applicant was owed protection obligations. The applicant says that obligation arises for four reasons.
Firstly, while there is no express requirement to take into account an earlier assessment of protection criteria, the applicant says an implied requirement to do so arises from the subject matter, scope and purpose of the Act. In support of this contention, the applicant relies upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at [39] per Mason J, Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 (Makasa) and Minister for Home Affairs v Brown (2020) 275 FCR 188 (Brown) at [122] per Besanko J where his Honour said:
In a case where there has been a prior decision under s 501(2) not to cancel a visa in circumstances where particular factual matters have satisfied the conditions in the subsection, the desirability of consistency in administrative decision-making, the related matter referred to by Dowsett J in Minister for Immigration and Multicultural Affairs v Watson (2005) 145 FCR 542; 88 ALD 115; [2005] FCAFC 181 (Watson) (see [124] below) and the presence of related sections such as s 501A of the Act lead to the conclusion, in my respectful opinion, that when consideration is given to the making of a further decision under s 501(2) based on the same factual matters satisfying the conditions in the subsection, the previous decision under s 501(2) is a mandatory relevant consideration of great importance.
The applicant says that considerations similar to those identified in Makasa and Brown apply in the instant proceedings, because the 2017 protection assessment was a prior decision by (the first delegate for) the Minister that the applicant did satisfy the s 36 criteria of the Act and, therefore, the 2017 protection assessment must be relevant given the desirability of consistency in administrative decision-making.
Secondly, the applicant says the import of the 2017 protection assessment clearly arose on the evidence before the Tribunal. Accordingly, he contends that the Tribunal was required to consider it, citing Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [13] per Bell, Gageler (as his Honour then was) and Keane JJ. The applicant says the requirement was particularly so because the 2017 protection assessment was expressly referred to in the reasoning of the delegate, whose decision was the subject of review by the relevant Tribunal decision.
Further, the applicant says that the views of the delegate predated the Tribunal’s decision by approximately 7 years. As such, those conclusions were 7 years more contemporaneous to the events complained of, with which the Tribunal was again required to grapple, such that the earlier views were relevant to its assessment. This is said to be particularly so in circumstances where the Tribunal acknowledged that, by 2024, the applicant was having difficulties with his memory as a result of his age (see [14] above). At hearing, the applicant’s submission was refined as being that where there is a prior protection finding, and no change in circumstances, that is something which should have been taken into account by the Tribunal.
Thirdly, by reference to the requirement that the Tribunal must act in a legally reasonable way, the applicant says it was obliged to engage with the 2017 protection assessment. The applicant says there is nothing in the Tribunal’s decision to suggest that it “read, identified, understood or evaluated the 2017 protection assessment” in the requisite sense discussed in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [24] per Kiefel CJ, Gageler (as his Honour then was), Gordon and Steward JJ. The applicant says that the failure amounts to error, and is material.
Lastly, the applicant relies in significant part on the fact that there had been no particular change in the prevailing circumstances in Iran. The applicant acknowledges that if there has been a change of circumstances in the conditions prevailing in the country to which the applicant is to be returned, then that change of circumstances must be taken into account in considering the person’s refugee status. The applicant says that, in the instant case however, there was no suggestion of a change in the prevailing circumstances in Iran in relation to issues of Christianity, since the 2017 protection assessment in respect of the applicant. The applicant says that, accordingly, he had an extant status as a refugee and there was no suggestion by the Tribunal that such status has been lost. As a result, the applicant says that the “ordinary course”[2] was for his refugee status, as determined by the first delegate, to be treated as final and conclusive, and that there was no reason to depart therefrom.
[2] in the manner identified in Commonwealth of Australia v Snell (2019) 269 FCR 18 at [71] per Allsop CJ, Reeves and Derrington JJ
The first respondent contends that the ground should be dismissed on two main bases.
First, the 2017 protection assessment was not, in actuality, a mandatory consideration as is contended for by the applicant. The first respondent says that the grant of a protection visa requires determination by the decision-maker of the question whether, as at the date of their decision, the visa applicant meets the criteria for its grant. In this regard, the first respondent contends that there is a fallacy in the notion of “once a refugee always a refugee” and the fact of an earlier determination of refugee status is irrelevant to the question of whether a person is a refugee as at the date of decision on a different application made at a different time.[3] So much so is contemplated by the Act. Relying on QAATv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299 (QAAT), the first respondent says that the contention of the legislative scheme for the grant of a protection visa mandatorily requires a decision-maker to take into account an earlier determination, such as the 2017 protection assessment, cannot stand.
[3] QAATv Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299 at [39] per Kiefel J and QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1448 at [23] per Dowsett J
Furthermore, the first respondent submits that the findings and conclusions of a different decision-maker considering a different visa application are not “claims” which must be considered. Even if they could be so characterised, the first respondent says the applicant has not identified any submission made by (or for) him to the Tribunal which characterised the 2017 decision-maker’s findings as claims for protection.
For the same reasons, the first respondent submitted there was no separate obligation on the Tribunal to engage with the 2017 protection assessment in compliance with the implied condition on the Tribunal’s decision-making power of legal reasonableness.
The first respondent also says that, in any event, the applicant cannot establish that the 2017 protection assessment was overlooked. The first respondent says that the 2017 protection assessment was mentioned expressly by the Tribunal at CB 514 to 515 at [26] to [27], [31], 521 at [127] to [128], and contends that those findings were not relevant to the Tribunal’s task of applying the time of decision criteria applicable to the applicant’s protection visa application.
Accordingly, the first respondent says that it would be open to the Court to conclude that the reason the Tribunal did not expressly make findings in relation to the 2017 protection assessment was because it did not consider that assessment to be material to its decision, particularly in circumstances where the applicant’s claims in support of his TPV application were discussed at length (CB 517 to 521 at [63] to [126], [130], CB 530 at [252]).
Consideration
The applicant says the Tribunal is required to take into account any consideration which is expressly required to be considered by the relevant, legislative scheme, relying on Peko-Wallsend and Makasa. However, it is relevant that Makasa and Brown were decisions applying a different part of the Act, being a character cancellation decision which turned on s 501 of the Act. Cancellation of an extant visa and the positive grant of a permanent visa have separate sources of power and are different juridical acts: Jia Le Geng v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 at [140] per RD Nicholson J.
For the reasons which follow, I accept the first respondent’s submissions in respect of this ground. The contentions of the applicant do not accord with what is understood as the task of the Tribunal in a de novo review of the delegate’s decision in which the Tribunal was required to determine for itself, whether the applicant should be granted a permanent protection visa being a fresh and separate visa grant, unrelated to the temporary protection visa which he had previously been granted. In QAAT (supra) at [33] per Kiefel J where her Honour stated:
His Honour rejected the contentions. In his Honour’s view (at [21]-[23]) three decisions of the High Court establish that, for the purposes of the Act, refugee status is to be determined having regard to the position at the time at which the determination is made: Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 302; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386-7; 398-9; 405-406; 414 and 431-433 (‘Chan’); and Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 393 at [29]. This suggested that the Minister was obliged to re-address the question whether the applicant was a person to whom Australia owed protection obligations in considering the application for permanent visa. The majority in Chan held that the question for determination is always whether the applicant satisfies the definition of ‘refugee’. It followed, in his Honour’s view, that it was not strictly relevant that the applicant had previously received temporary visas. It was not necessary for the Tribunal to decide whether or not the cessation clause had been engaged as a result of the changed circumstances in Afghanistan.
In NBGM v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 84 ALD 40 per Emmet J the Court discussed the task with which the Tribunal is charged in respect of the granting of a permanent protection visa. At [62] to [64], Emmett J said the following (original emphasis):
The tribunal was not considering the revocation of a protection visa. Nor was the tribunal considering an application for the extension of a temporary protection visa. The tribunal was considering a fresh application for the grant of a permanent protection visa. That required, under s 36(2), that the tribunal, standing in the shoes of the minister be satisfied, that the applicant is, at the time of the decision, a person to whom Australia has protection obligations under the Refugees Convention.
On one view, Art 1C(5) had no part to play in that question. The only question was whether, at the time of the tribunal’s decision, the applicant was a person who, owing to a well-founded fear of being persecuted for Convention reasons, was unable, or owing to such fear, unwilling to avail himself of the protection of Afghanistan. Even if, as at December 1999 the applicant had been a person to whom the term “refugee” within the meaning of the Refugee Convention applied, the question before the tribunal was whether that term applied to the applicant as at April 2004. The tribunal concluded that the applicant was not, as at that time, a person to whom the term refugee, as defined in the Refugees Convention, applied. There was no error in its reasoning in doing so.
In reaching its conclusion, it was necessary for the tribunal to have regard to all of the applicant’s claims, whether they were made in connection with his original application or his subsequent application. The tribunal did so. It is not the court’s function to second guess the tribunal’s conclusion in relation to the assessment of the material before it in that regard.
Shortly after NBGM (supra) was decided, QAAH of 2004 (supra) was delivered in which the applicant contended the following (similar to the argument in the present case):
The applicant submits that, as s 36 and the regulations prescribing the criteria for a temporary (XC) visa require that Australia owe him protection obligations as a condition precedent to the grant of such a visa, it must be conclusively assumed that the Minister was satisfied as to the existence of such status at the time of granting the temporary (XC) visa. He alternatively submits that the Minister may not now deny that such obligations existed at that time. The applicant submits that in either case, it must also be accepted that the circumstances as at March 2003 were sufficient to justify the grant of a protection visa and that he continues to be a person to whom Australia owes protection obligations until those circumstances change in the way contemplated by the cessation clause. It is said that s 36 recognizes that protection obligations continue until the cessation clause is engaged. Thus a protection visa may, and should, be granted upon the basis of a prior determination that the applicant was a refugee and without further enquiry, provided that there has been no change of circumstances sufficient to engage the cessation clause. The effect of the submission must be either that a temporary (XC) visa continues until the cessation clause is engaged, despite the statutory limit on its life, or that there is some obligation to grant a new visa without reference to current circumstances.
The applicant then submits that the Tribunal found that circumstances had changed since the grant of the temporary (XA) visa in 2000 but did not consider whether the circumstances which existed in March 2003 (when the temporary (XC) visa was granted), had changed. This is said to involve an error of law going to jurisdiction and is the first ground of review.
In QAAH of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363 (QAAH (FCA)), Dowsett J rejected that argument, citing Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan), finding at [23] that:
In my view, it follows that the question for the Tribunal in the present case was whether or not, at the time of the decision, the applicant had a well-founded fear of persecution for a Convention reason. It was not strictly relevant that he had previously applied for and received temporary (XA) and temporary (XC) visas. In other words it was not necessary to decide whether or not the cessation clause had been engaged as a result of changed circumstances in Afghanistan. The applicant’s argument to the contrary is that identified by Dawson J in Chan at 398, which argument was, in my view, rejected by the High Court.
QAAH (FCA) was overturned by the Full Federal Court.[4] However, the High Court later reinstated the orders of Dowsett J on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH (2006) 231 CLR 1 (QAAH (HCA)), finding at [37] to [38] that (emphasis added):
Whether under s 36(2) Australia has protection obligations depends upon whether a person satisfies the definition of a refugee in Art 1A of the Convention, in the context of other relevant articles, none of which say anything about the period of residence or permanent residence. If they did, they would have to yield in any event to the provisions of the Act which do. There is nothing in s 36(3) of the Act which points to a different conclusion. The words in s 36(3) “whether temporarily or permanently” do no more than make it clear that any obligation of protection may or will not be assumed by Australia at any time, or from time to time, if a person has not taken all possible steps to avail himself or herself of residence in another country.
Having regard to the sections of the Act and regulations under it to which we have referred, and which are concerned with the duration of visas, these conclusions follow. A visa subsists for only the period of it, or until an event, if any, specified in it occurs: ss 28, 29(3), 67, 68(3) and 116. When the visa expires, the holder of it must make a fresh application for another visa, in this case, another protection visa, because otherwise that person would have no entitlement to remain in Australia: and a, or the, relevant criterion for the grant of a protection visa at that time is that the non-citizen, the applicant, is a person to whom Australia has (not, it may be observed, “in the past had, or owed”) protection obligations under the Convention: s 36(2) and (4).
[4] QAAH (FCA)
In Chan (supra) at 405 Toohey J held that if the status of refugee is granted (emphasis added):
As to the second of these questions, the appellant submitted that his status as a refugee must be determined in the light of facts existing when he left China. In effect the appellant was saying: “Once a refugee, always a refugee”, subject to the cessation provisions in Art 1 c of the Convention.
There is support for the appellant's submission in the literature: see, for example, the handbook issued by the Office of the United Nations High Commissioner for Refugees under the title Handbook on Procedures and Criteria for Determining Refugee Status, (1979), para 28 ; Grahl-Madsen, The Status of Refugees In International Law, (1966), vol 1, p 157 . But the language of the Convention itself tells against such a construction. In particular, the cessation provisions in Art 1 c and (6) mention that “the circumstances in connection with which he has been recognised as a refugee have ceased to exist”. The emphasis is on recognition as a refugee and that, in context, means recognition by the State party which has accorded protection as a refugee. The structure of Art 1 implies that status as a refugee is to be determined when recognition by the State party is sought and that, if granted, the status may thereafter be lost because the circumstances giving rise to recognition have ceased to exist. This view of refugee status as a contemporaneous assessment is supported by the judgment of Mason, Deane and Dawson JJ in Mayer (CLR at 302) . See also R v Home Secretary; Ex parte Sivakumaran[1988] AC 958 at 992, 998 .
Of course, such an approach does not and cannot exclude consideration cf an applicant's circumstances at the time he left the country of his nationality; these circumstances are a necessary starting point of the inquiry. All that the approach demands is that a determination whether a person has a well-founded fear of being persecuted is a determination whether that circumstances exists at the time refugee status is sought. If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration. In an appropriate case the change (such as a new government) may remove any basis for a well-founded fear of persecution.
What QAAH (HCA) and Chan make clear is that there may be, in determining whether to grant a permanent protection visa, consideration given to the circumstances which prevail in the receiving country relevant to an applicant’s claims. Despite this, it remains clear from the authorities that the previous protection assessment is not a mandatory consideration for the Tribunal in determining a further visa application.
The remaining aspects of the applicant’s contentions in respect of ground 1 turn on what is said to be the relevance of the 2017 protection assessment to the task of the Tribunal, even if its consideration was not mandatory. However, I am not satisfied there is error in that regard either.
The fact that the delegate referred to the 2017 protection assessment does not elevate it to being of any specific relevance to the Tribunal’s task once it is properly understood, by reference in particular to the authorities set out at [63] to [69] above, that the task of the Tribunal was to determine Australia’s protection obligations, and therefore the visa, for itself.
True it is that the 2017 protection assessment was more contemporaneous to the events which had grounded its grant. However, it is well-established that the task of the Tribunal is to make its determination based on relevant matters at the time of its decision: see SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [26] per Gray J. More crucially to the applicant’s contention, that task is not to be approached on the basis that either the Minister or the Tribunal has an onus of establishing that there has been some change in circumstances since: see AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 80 at [37] per Kenny, O’Callaghan and Thawley JJ and QAAH (HCA) (supra) at [39]:
The Act does not pose the question which the majority of the Full Court posed as a relevant question: whether, at the time of an application for a permanent protection visa, there have occurred in the applicant’s country changes of a substantial, effective and durable kind. True it may be that if the non-citizen did, before entering Australia, suffer persecution or had a well-founded fear of it in that other country, unless there have been real and ameliorative changes that are unlikely to be reversed in the reasonably foreseeable future, then the person will in all probability continue to be one to whom Australia owes protection obligations, but to put the question in the way in which the majority of the Full Court did, and to hold that there was, in effect, an onus upon the appellant to establish the occurrence of substantial, effective and durable change, was to fail to give effect to the rule of Australian law that the Act, and the holdings of this court that the proceedings under it in the tribunal, are not adversarial.
Nothing said in Chan countermands that proposition.
At hearing, the applicant’s position was refined as being that the existence of a prior protection finding, with no change in circumstances, is something which should have been taken into account by the Tribunal. However, given that the task of the Tribunal was to assess whether the applicant was a person who was currently[5] owed protection obligations, such that the visa ought be granted to him, whether he was previously found to be a refugee was not a matter which the Tribunal was obliged to take into account. I accept the submission of the first respondent that the applicant was in possession of the status of refugee while the TPV was in effect: see Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288 at 292 per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ. The Tribunal was required to take into account in its own assessment whether the applicant’s claims, when assessed against the information about the extant situation in Iran at that time, were such that Australia owed him protection.
[5] at the time of the Tribunal’s decision
While on one view it might seem likely that, in the absence of material situational changes in Iran, the outcome ought to have been the same on both occasions, there was no guarantee the outcome would the same given that different decision makers must still undertake their own (subjective) assessments. Provided that the Tribunal’s conclusions were open to it on the material before it, at most, such different conclusions might be seen to be an example of reasonable minds differing.
The Tribunal was required to consider the claims made by the applicant in seeking protection, understood also to include claims which squarely arose on the material before it: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] per Black CJ, French and Selway JJ citing SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. In this regard I accept the submission of the first respondent that the findings and conclusions of a previous decision-maker were not “claims” arising to be considered.
The applicant also relies on Plaintiff M1/2021 (supra) which was also a matter arising in the cancellation context (see [61] above). In that case, the Court found that the Minister was under an obligation to consider representations made by the former visa holder. Putting to one side the question of whether that case could be said to inform the present decision for the reasons addressed at [61] above, the findings of the previous decision maker were neither claims nor representations. They were simply the reasons for decision. The applicant does not point to any of his claims which were overlooked.
In this case, I am satisfied that the Tribunal’s conclusion were in fact open. I am not satisfied that the Tribunal acted in a legally unreasonable way in the sense consider in Plaintiff M1/2021, or at all.
Lastly, there is nothing before me to suggest that the Tribunal did in fact fail to have regard to the 2017 protection assessment. It is well-established that the Tribunal is not required to refer to every piece of evidence and every contention made by an applicant in its written reasons: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46] per French, Sackville and Healy JJ.
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 the following was said about the obligation in s 430 of the Act (which applied at the time of the instant Tribunal’s decision) to give reasons, per McHugh, Gummow and Hayne JJ at [69]:
Understanding s 430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material.
As the first respondent correctly observes, the Tribunal’s reasons for decision are not devoid of references to the 2017 protection assessment for example [26] to [27], [31], and [127] to [128]. As such, I decline to draw the inference that the Tribunal failed to have regard to the 2017 protection assessment at all. However, as detailed above, in circumstances where the question for the Tribunal was whether or not, at the time of its decision, the applicant had a well-founded fear of persecution for a Convention reason (see QAAH (FCA) (supra) at [23] per Dowsett J), the conclusions of a previous decision-maker were not material to that decision, and the claims which were made in respect of the TPV were, in any event, considered.
I am not satisfied that the error alleged by ground 2 is established.
Ground 3
Ground 3 contends that the Tribunal erred by failing to inform the applicant that it would not consider the 2017 protection assessment in its determination of whether he satisfied the requirements of s 36 of the Act, given the delegate found that the 2017 protection assessment was relevant information which they considered. The applicant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [35] to [36] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In relation to the third ground, the first respondent ultimately contends that, while the 2017 protection assessment might have constituted evidence relating to an issue (being whether the applicant was a refugee as at the date of the delegate’s decision based on the particular grounds upon which he relied), it was not an “issue” within the meaning of s 425(1) of the Act, let alone one dispositive of the review. The first respondent says that all the delegate said was that the findings made by the previous decision-maker were “not binding”, but constituted “relevant information”, which they considered in making their decision (CB 390).
Consideration
At the time of the Tribunal’s decision, s 425 of the Act provided as follows:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal
The applicant relies on SZBEL (supra) in respect of this ground. In that decision, the High Court relevantly said the following at [33] to [34] (emphasis in original, footnotes omitted):
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.
Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the minister’s delegate), but also to the fact that the tribunal is to review that particular decision, for which the decision-maker will have given reasons.
In Hazra v Minister for Immigration and Border Protection (2017) 319 FLR 81 at [13] Judge Smith said the following about the meaning of “issue” emanating from SZBEL (emphasis added):
In light of the Minister’s first argument in these proceedings, it is necessary also to consider the meaning of the word “issue”. A review of the appellant authorities since the decision in SZBEL reveals that there has been very little specific consideration of that word. That is not surprising, given that it is a word commonly used in litigation and apparently well understood by lawyers. In the context of litigation it means a point of contention between parties, ordinarily defined by reference to written statements of a case including pleadings. However, given that there are no parties to a review conducted by the Tribunal, the word as it appears in s 360(1) is better understood as including any question of significance that the Tribunal considers it needs to decide. That accords with the opinion of Besanko J in SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1 where his Honour said, at [115]:
The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant’s claim. I do not think that such a narrow interpretation would be correct. In SZBEL, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate’s decision by virtue of the delegate’s reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate’s reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.
CfAporo v Minister for Immigration & Citizenship(2009) 113 ALD 46 at [34].
That interpretation also recognises the distinction make in SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1 (which was cited in Hazra (supra)) at [103] per Besanko that:
there is a distinction between evidence relating to an issue and the issue itself and it seems to me that not every matter which might engage the obligation in s 424A involves a new issue or a further issue or a previously unidentified issue.
As has been discussed in respect of ground 2 above, the question of significance that the Tribunal was required to decide in the review was whether the applicant was a person to whom Australia owed protection obligations, which it was required to determine for itself.
The delegate did not reason that, because of the 2017 protection assessment, the applicant should be considered to be a refugee. At most, the delegate identified the 2017 protection assessment as being part of the background which led to the extant visa application. So much can be discerned from the fact that it was described as being “relevant information” but otherwise not binding on the delegate. The applicant can be taken therefore to have been on notice that the delegate was not bound by the 2017 protection assessment.
Given that the 2017 protection assessment was not determinative of any issue before the delegate, there can have been no expectation on the part of the applicant that it would be an issue dispositive of the review before the Tribunal, nor was the Tribunal under an obligation to notify the applicant that it intended to depart from the issues which the delegate found to be determinative. At most, the delegate made reference to claims which the applicant had made which led to him being granted the TPV, but the findings went no further.
Ground 3 is not made out.
CONCLUSION
In circumstances where ground 1 is not pressed and the applicant has not been successful in establishing error in respect of grounds 2 and 3, the decision is a privative clause decision and must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 May 2025
0
28
2