FEDERAL COURT OF AUSTRALIA Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 Appeal from: DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353 File number: NSD 991 of 2017 Judges: GILMOUR, MARKOVIC AND O'CALLAGHAN JJ Date of judgment: 27 November 2017 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – whether primary judge erred in finding that the second respondent had not "cumulatively assessed" the risk said to confront the first respondent if returned to Iran – whether obligation of cumulative assessment arose – whether second respondent did in fact cumulatively assess the relevant risks Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and (aa), 46A Cases cited: Khan v Minister for Immigration and Citizenship [2000] FCA 1478 SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 Date of hearing: 8 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 40 Counsel for the Appellant: Mr C L Lenehan and Ms K Pham Solicitor for the Appellant: Australian Government Solicitor Counsel for the First Respondent: Mr R P V Carey Solicitor for the First Respondent: Wotton + Kearney Counsel for the Second Respondent: Second Respondent filed a submitting notice save as to costs ORDERS NSD 991 of 2017 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant AND: DDK16 First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGES: GILMOUR, MARKOVIC AND O'CALLAGHAN JJ DATE OF ORDER: 27 NOVEMBER 2017 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court made in SYG2895/2016 on 31 May 2017 be set aside. 3. In lieu of the orders referred to in paragraph 2, the application to review the decision of the second respondent dated 12 September 2016 be dismissed with costs. 4. The first respondent pay the appellant's costs of the appeal, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 The appellant, the Minister for Immigration and Border Protection (the Minister), appeals against orders of the primary judge which quashed a decision of the second respondent, the Immigration Assessment Authority (the IAA), affirming a decision of the appellant's delegate not to grant the first respondent (the respondent) a protection visa. 2 The precise terms of the orders against which the Minister appeals are: (1) A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 12 September 2016 into this Court for the purpose of quashing it. (2) A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine the review referred to it, according to law. 3 For the reasons given below, the Minister's appeal must be allowed, the orders of the primary judge set aside, and in lieu thereof orders made that the application to review the decision of the IAA dated 12 September 2016 be dismissed with costs. Background 4 The following facts are summarised in the reasons of the primary judge. 5 The respondent is a national of Iran. He entered Australia by boat in September 2012. 6 On 11 October and 2 December 2012, the applicant took part in an Arrival Interview and an Irregular Maritime Arrival Entry Interview. 7 On 13 August 2015, the respondent was told that the Minister had decided to exercise his power under s 46A of the Migration Act 1958 (Cth) (the Act) to permit the respondent to make an application for a Safe Haven Enterprise Visa (SHEV). 8 The respondent applied for a SHEV on 4 January 2016. As part of his application, he provided a statement in which he made his claims for protection under the Act. In summary, the respondent claimed to fear harm by reason of the following: (1) Religion: The respondent was raised a Shia, converted to Christianity in Australia in 2013, but has since become disillusioned with all religions. (2) Mental health condition: The respondent has previously been diagnosed as having a personality disorder and is volatile as a result of his mental health condition. He claimed that he did not fit within the norms of Iranian society and was a member of the particular social group comprising resistant, defiant, young and "Bolshi" individuals. He also claimed that he suffered from Attention Deficit Disorder. (3) Previous arrests: The respondent claimed to have been arrested on a number of occasions. In 2003, he was charged and imprisoned for 12 days for drinking alcohol and engaging in immoral behaviour; in 2004, he was arrested after an altercation with a police officer, having been accused of armed robbery (but the case was later dismissed on account of a lack of evidence); in 2007, the respondent was arrested for drinking alcohol and disturbing the peace, and was, following an appeal, sentenced to a three-year good behaviour bond and 80 lashes; and, in 2009, he was implicated in an altercation that took place at one of his father's shops and was sent to prison for 29 days. (4) Political opinion: The respondent claimed to have participated in anti-government demonstrations on about four or five occasions in Shiraz, Iran in 2009 and 2010. He also claimed to have attended a demonstration against the Iranian government in Sydney in 2014. During the interview with the delegate, however, he said that he attended about three or four demonstrations in Sydney but could not remember the dates on which they took place. The applicant claimed that he was against the Iranian government and has shared videos on his Facebook page critical of Islam. During the interview with the delegate, the applicant's then representative argued that he has "an anti-regime political opinion and he is anti-Sharia Law as he drank alcohol". (5) Reasons for departing Iran: The respondent claimed that, in 2012, some men in plain clothes ransacked his father's house and were looking for the respondent and demanded that he report to the police station. He claimed that he did not know why people were looking for him but feared that, if he were to remain in Iran and be arrested for a third time, he could face the death penalty. 9 The applicant also claimed that if he were to be returned to Iran he feared that he would face arbitrary arrest and detention and would be accused by the Iranian authorities of something that he did not do. 10 On 8 March 2016, the respondent's bridging visa was cancelled under s 116 of the Act after he was charged with one count of causing grievous bodily harm by the New South Wales police. The respondent has been detained in immigration detention since that time. 11 On 19 April 2016, the Department invited the applicant to participate in an interview with the delegate, which occurred on 13 May 2016. 12 On 11 July 2016, the delegate refused to grant a SHEV to the applicant. 13 On 12 July 2016, the delegate's decision was automatically referred to the IAA for review as a "fast tracked reviewable decision" under s 473CA of the Act. 14 The respondent was told that he could provide new information to the IAA for it to consider, but he did not do so. 15 On 12 September 2016, the IAA affirmed the delegate's decision. relevant sections of the act 16 In light of the submissions made on behalf of the respondent, and before turning to set out the IAA's path of reasoning, it is helpful to set out the relevant provisions of the Act which deal with the two bases upon which the respondent sought a protection visa – first, that he is a refugee under s 36(2)(a) of the Act, or alternatively that the complementary protection provision (s 36(2)(aa)) applies because, as a necessary and foreseeable consequence of him being removed from Australia to Iran, there is a real risk that he will suffer significant harm. 17 Section 36 of the Act relevantly provides: (1A) An applicant for a protection visa must satisfy: … (b) at least one of the criteria in subsection (2). … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or … (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 18 "Refugee" is relevantly defined in s 5H of the Act as follows: (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country… 19 The phrase "well-founded fear of persecution" is relevantly defined in s 5J as follows: (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. … The IAA'S reasons 20 The IAA found that the respondent did not meet the criterion for protection as a refugee or the requirements of complementary protection. 21 The IAA rejected each of the claims summarised in [8] above, in each case on the basis that it was not satisfied that the respondent would face a real chance of serious harm on return to Iran. 22 The IAA dealt with the respondent's refugee claim first. It did so by giving detailed reasons, which were not the subject of criticism either before the primary judge or this Court. On the contrary, the primary judge said of the reasons that he had "no doubt" that the IAA had demonstrated "active intellectual engagement" with each of "the various risks confronting [the respondent], should he return to Iran". The respondent took no issue before us with that characterisation of the IAA's reasons. 23 The IAA also stated that it had considered the respondent's claims cumulatively and, assessing his claims as a whole, found that they did not give rise to a real chance of serious harm. 24 The IAA also found that the respondent did not meet the criterion for complementary protection. For the same reasons that it found that the respondent did not meet the criterion for protection as a refugee, the IAA found that it was not satisfied that the respondent would face a real risk of significant harm on return to Iran on the basis of any of his claims. The IAA also stated that it had considered the respondent's claims cumulatively under the rubric of the claim to complementary protection and found that they did not give rise to a real risk of significant harm. 25 In particular, at [51], under the heading "Complementary protection assessment", the IAA said: For reasons already stated I am not satisfied the applicant will face a real chance of serious harm on return to Iran on the basis of his previous Christian conversion, because he does not believe in Shi'a Islam and currently has no religion, because of his criminal history, mental health, his participation in the 2009 demonstrations, his anti-government political views, his Facebook posts, his participation in demonstrations against the Iranian government in Australia, all because he will be returning to run as a failed asylum seeker. As 'real chance' equals 'real risk' I am also not satisfied the applicant will face a real risk of significant harm on return to Iran for these reasons. (Emphasis added.) 26 The IAA then said (at [53]-[54]): I have considered the applicant's claims cumulatively and I do not find that he will face a real risk of significant harm. I have taken into account that he previously converted to Christianity and does not believe in Shi'a Islam and currently has no religion, his political opinion, his attendance at the 2009 demonstrations in Iran and demonstrations against the Iranians government in Australia, his criminal history, mental health, Facebook posts and that he will be returning to Iran as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real risk of significant harm. … There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s 36(2)(aa) [of the Act]. decision of the primary judge 27 The primary judge quashed the IAA decision on the sole ground that, although there was "no doubt" that the IAA had demonstrated "active intellectual engagement" with each of "the various risks confronting [the respondent], should he return to Iran", it was "not apparent" that the IAA had demonstrated such an engagement when it came to deal with what the primary judge described as the "rolled up cumulative assessment" of those risks ([103]). 28 The primary judge reasoned as follows (at [103]): Taken individually, the [IAA's] assessment of the various risks confronting the applicant, should he return to Iran, involved assessments that his activities would either not become known to the authorities or would not be repeated. The [IAA's] rolled up cumulative assessment at the end of its reasons does not expressly deal with the possibility that, when considered cumulatively, these risks might become significant. In a case like the present, where the applicant faces multi-faceted risks which may interact and interrelate, particularly when considered with his mental health condition, the bland assertion that the claims were considered cumulatively does not satisfy me that this was anything more than the application of a verbal formula. If the [IAA] was wrong on any one of its assessments, it would seem logically to follow that the applicant may well encounter a real risk of significant harm. The cumulative assessment of the claims needed to address the possibility of the interaction of the applicant's condition, activities and circumstances leading him to the adverse attention of the Iranian authorities. To put it another way, the assertion of a cumulative assessment, in a complex case such as this, requires a demonstration of an active intellectual engagement with the issues when considered cumulatively. There is no doubt that there was active intellectual engagement with the issues considered individually. It is not apparent, however, that there was any active intellectual engagement in the cumulative assessment. the minister's grounds of appeal 29 The Minister contends that in circumstances where: (1) the respondent's claims to satisfy the refugee criterion in s 36(2)(a) of the Act or the complementary protection criterion in s 36(2)(aa) of the Act were rejected by the IAA because the various risks said to confront the respondent should he return to Iran were found to not give rise to a real chance of serious harm; (2) the primary judge found, and the respondent accepted, that the IAA demonstrated "active intellectual engagement" in its reasons for rejecting each of those risks relied upon by the respondent, the primary judge was wrong to allow the appeal on the ground that the IAA had not "cumulatively assessed" the risks. 30 The Minister submits that the primary judge erred in so concluding because: (1) in such circumstances, no obligation of cumulative assessment arose; and (2) the IAA had in fact cumulatively assessed those risks in any event. consideration 31 Both of those submissions are correct, and the appeal must be allowed. 32 Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister's submission that no obligation to make a "cumulative assessment" arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]. 33 Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister: Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant's claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]]. The obligation to give cumulative consideration to a visa applicant's claims arises as part of the decision-maker's obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant's claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker's duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]]. 34 In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of "cumulative consideration" of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise. 35 In any event, it is, with respect to the primary judge, clear on the face of the IAA's detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis. On the refugee claim, for example, the IAA expressly refers and considers in detail submissions made by the respondent's representative before it that a number of matters should be considered cumulatively (see [22]-[26] of the IAA reasons). It is not necessary to recite those passages, because counsel for the respondent did not seek to argue that the IAA's treatment of the respondent's refugee claim involved any error of law, by lack of cumulative reasoning or otherwise. 36 Counsel for the respondent's contention, ultimately, was that it was not open to the IAA to incorporate by reference into its consideration of the respondent's complementary protection claim the IAA's extensive reasons about the risks alleged in the content of his refugee claim. That is what the IAA did when it said "[f]or reasons already stated" it disallowed the claim under s 36(2)(aa): see [25] above. 37 In our view, in particular in circumstances where there was, as the primary judge put it, "no doubt" that the IAA had demonstrated "active intellectual engagement with those issues" concerning the refugee claim ([103]), the submission that it was a jurisdictional error not again to rehearse the same treatment of those issues under the rubric of the complementary protection claim need only to be stated to the rejected. Both claims involve the considered and detailed assessment of risks and it was entirely appropriate for the IAA to reason and conclude as it did, by relying on the reasons that it had already stated. 38 Counsel for the respondent also submitted that the tests for a refugee claim and a claim to complementary protection are different, which of course at a general level is true. But relevantly, both require an evaluation of a risk of harm. Once it is accepted that the risk of harm alleged is not real or significant in the context of one of those claims, and it is accepted that the reasoning does not give rise to appellable error, no such error can be demonstrated if that reasoning is incorporated as the foundation for a conclusion that there is no real or significant risk in the context of the other claim. 39 The respondent also contended that the IAA's statements that it had considered the applicant's claim for complementary protection on a cumulative basis were formulaic and did not constitute a proper consideration of the issues. In our view, that contention must be rejected because the IAA's reasons were anything but formulaic. 40 For those reasons, the appeal will be allowed, the orders of the primary judge set aside, and orders made in lieu thereof that the application to review the decision of the IAA dated 12 September 2016 be dismissed with costs. The first respondent should pay the appellant's costs of the appeal, to be agreed or assessed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gilmour, Markovic and O'Callaghan. Associate: Dated: 27 November 2017