FEDERAL COURT OF AUSTRALIA SZRDW v Minister for Immigration and Citizenship [2012] FCA 1262 Citation: SZRDW v Minister for Immigration and Citizenship [2012] FCA 1262 Appeal from: SZRDW v Minister for Immigration & Anor [2012] FMCA 545 Parties: SZRDW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and HEATHER KING IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR File number: NSD 1022 of 2012 Judge: ROBERTSON J Date of judgment: 16 November 2012 Catchwords: MIGRATION – appeal from Federal Magistrates Court – judicial review of recommendation of Independent Protection Assessor to refuse protection visa – whether alternative claim made – procedural fairness – whether failure to put adverse material to appellant PRACTICE AND PROCEDURE – leave to amend notice of appeal – where ground not raised in court below – whether appropriate to grant leave Cases cited: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Stead v State Government Insurance Commission (1986) 161 CLR 141 applied Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 referred to Re YYMT and FRFJ (2010) 115 ALD 590 referred to Date of hearing: 7 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 68 Counsel for the Appellant: Mr J King Solicitor for the Appellant: Fragomen Counsel for the First Respondent: Mr JB Kay Hoyle Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1022 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRDW Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent HEATHER KING IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR Second Respondent JUDGE: ROBERTSON J DATE OF ORDER: 16 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the appellant to amend his notice of appeal to include Grounds 3.a and 3.b of the Amended Notice of Appeal filed in Court on 7 November 2012. 2. Leave be refused to the appellant to amend his notice of appeal to include Ground 3.c of the Amended Notice of Appeal filed in Court on 7 November 2012. 3. The appeal be allowed. 4. The first respondent pay the costs of the appellant. 5. Order 1 made by the Federal Magistrates Court of Australia on 29 June 2012 be set aside. THE COURT DECLARES THAT: The recommendation of the assessor made on 9 January 2012 that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees was not made in accordance with law. Note: Entry of orders is dealt with in Rules 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1022 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRDW Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent HEATHER KING IN HER CAPACITY AS INDEPENDENT PROTECTION ASSESSOR Second Respondent JUDGE: ROBERTSON J DATE: 16 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia given on 29 June 2012, the order of that Court being that the application be dismissed and the applicant pay the first respondent's costs. 2 The application to that Court was from a recommendation of an Independent Protection Assessor (assessor) who, on 9 January 2012, recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention. The reasons of the assessor 3 According to the statement of reasons of the assessor, the claimant (to whom I will refer as the appellant) arrived in Australia on 8 April 2011. On 22 May 2011 he made a request for a protection obligations evaluation (POE) and on 8 August 2011 the matter was referred for an Independent Protection Assessment. 4 The assessor found that the appellant was a national of Iran. 5 In some matters the assessor accepted that the appellant was speaking the truth and accepted the appellant's evidence as credible; in other matters the assessor concluded that the appellant had not been truthful and the assessor did not accept his evidence as reliable. 6 The assessor did not accept the appellant's claim that he was the legal custodian of his daughter or that the whereabouts of that child was unknown. The assessor did not accept, at [58] of her reasons, that the appellant was awarded custody of his daughter by the court in Iran in 2009 when she was five years of age. The assessor based this conclusion on a number of factors. These factors included reference to Article 1169 of the Iranian Civil Code; the appellant's inability to provide an explanation as to why the court would award custody to him rather than the child's mother; his inability sufficiently to explain why the mother would acquiesce in this arrangement, other than repeatedly stating that the mother thought his life was in danger because of his political views; the appellant was evasive in response to questions and could not explain why the child's mother would consider her daughter safe in his care if his own life was in danger; that at interview he did not reiterate his entry claim that his ex-wife agreed to him having custody on the condition that they divorce, or the reasons cited within the advisor's submission that neither party wanted the child to grow up under the influence of the brothers-in-law. 7 Article 1169 of the Iranian Civil Code was set out by the assessor in her reasons as follows: A mother has preference over others for two years from the birth of a child for the custody of the child and after the lapse of this period custody will devolve on the father expect [sic] in the case of the daughter who will remain under the custody of the mother till 7 years. Article 1170, from the same original source, although not set out by the assessor, was in the following terms: If the mother becomes insane or marriage [sic] another man during her period of custody, the custody will devolve on the father. 8 The assessor also considered the appellant's character, which included information that he spent 90 days incarcerated at Hamadan prison for abandoning his family. The assessor considered it implausible that the appellant would be awarded custody of a female child some months after completing the sentence, in the context of his hostile family situation. The assessor also did not accept the appellant's claim that the whereabouts of his child was unknown. These conclusions had no real effect on the appellant's claims to fear persecution in Iran for a Convention reason, but the assessor said it undermined the appellant's credibility in relation to his claims. 9 The assessor accepted that the appellant's ex-wife had one brother who was a member of the Basij and another who was a member of the Ettalaat. 10 The assessor did not accept the appellant's claim of harassment by the Basij. The assessor had regard to the inconsistency in information about the event; the appellant's hesitant record of interview in which he did not appear to be speaking from lived experience; and because the country information indicated that if the appellant's claim was true that his brother-in-law was orchestrating to silence him for political reasons, then his experience of harm by the Basij and Ettalaat would have been more extreme than being threatened with a fist, punched and kicked. 11 The assessor accepted the appellant's claim that he was incarcerated. The appellant's claim was that in 2009 he was imprisoned for 90 days for abandoning the family home after only one week, although there was some inconsistency in evidence in that it was noted at entry that the appellant was away for one month. 12 The assessor accepted that the appellant's brother-in-law who was a member of Ettalaat was involved in his incarceration and used the opportunity to attempt to solicit the appellant's signature on divorce papers. 13 The assessor accepted that there had been a long-standing history of personal tension between the appellant and his wife's family, and that the appellant's evidence had been consistent in that his brothers-in-law wanted him out of the family. 14 The assessor concluded that the essential and significant reason that the appellant was incarcerated was solely for family reasons and not for political reasons as the appellant had claimed, nor a combination of both personal and political reasons. 15 The assessor referred to differing claims about another incident, whether the appellant was raped while in prison or whether there was an attempted rape, as contributing to the assessor's finding that the appellant's evidence could not be relied upon to be credible and truthful. 16 The assessor accepted that the brothers-in-law were motivated to harass the appellant solely for personal family reasons. The assessor did not accept that the harassment by his brothers-in-law was in any way politically motivated. 17 The assessor accepted as plausible that the appellant participated in a post-election demonstration in Hamadan on 14 June 2009, as many other Iranians did. The assessor also accepted as plausible that the appellant returned to the demonstration after being injured earlier in the day. The assessor did not accept that the appellant was arrested by, and escaped from, the Basij as he claimed. The assessor gave reasons for this conclusion, placing weight on the inconsistencies in the appellant's evidence. 18 The appellant claimed to have participated in a political demonstration on 14 February 2011 in Hamadan. The assessor accepted as plausible that the appellant did attend the political demonstration but did not accept that the appellant came to the attention of the Basij as a political dissident. The assessor noted claims that had been consistently stated by the appellant, albeit some with inconsistent detail. The assessor said the inconsistencies, noted in combination with the appellant's dubious presentation at interview, undermined the appellant's credibility, but they were not the only matters which called his credibility into question. 19 The assessor said that, post POE assessment, the appellant had made a claim that for many years, dating from before 2001, he held political meetings in his workshop at home: he claimed that he was a leader of a group of about 20 persons. His evidence was that the group did not have a name for security reasons, that the goal of the group was to recruit more members and that the purpose of the group was to speak about human rights violations and the suppression of the Iranian regime. The assessor did not accept that the appellant held political meetings in his workshop or that he was the leader of an unnamed group who met frequently to discuss anti-regime matters and who had been doing so since before 2001. The assessor placed weight on the appellant's evasive and rambling answers to questions at interview, that his evidence made no sense; that he did not mention such meetings in his entry interview, his statement or his POE assessment, and because of the dubious way in which he responded to questions. The assessor noted that the appellant had never enunciated a connection between his claimed participation in political protests and his activity as a leader of an unnamed politically based group. 20 The assessor then considered in totality the appellant's claims that he had in the past been subject to harassment, arrest and harm from the Basij, Ettalaat and Sepah on the basis of his imputed political opinion as anti-regime. 21 The assessor noted the appellant's adviser had submitted that while the appellant might have come to the attention of the Basij for reasons of family dispute, the past persecution was for the Convention related reason of imputed political opinion as anti-regime. The assessor said she did not accept that the appellant's past persecution had been for his imputed political opinion as anti-regime but had concluded that the appellant was rejected and harassed by his wife's family for personal and private reasons and not the reasons of his imputed political opinion or a combination of personal and political opinions. The assessor did not accept that the Iranian regime had any knowledge or record of the appellant as a political dissident, only as a man who abandoned his family. The assessor accepted that the appellant attended political protests on two occasions as part of a ground swell movement to demonstrate against the regime: she did not accept that the appellant came to the attention of the Basij during these events or that he attended those events because of any association with political groups or as a political activist. The assessor did not accept as credible that the appellant had been persecuted in the past on the basis of his political opinion, or that he faced a real chance of persecution in Iran now or in the future because he had been a political activist or dissident. 22 The assessor noted that the appellant's advisor had claimed that the appellant faced more than a remote chance of persecution in Iran on the basis of being a failed asylum seeker. The assessor noted that the appellant himself had not made that claim or any suggestion that that would be the case. The assessor referred to the relevant country information and did not accept that the appellant fitted into any of the profiles mentioned and for all her previous reasons did not accept that the appellant was a person of interest to the authorities for reasons of imputed political opinion. She noted that the appellant left Iran legally. The assessor did not accept that there was a real chance that the appellant faced persecution on return to Iran as a failed asylum seeker. Earlier, at [52], the assessor had referred to a 2010 UK Home Office Country of Information Report which said, amongst other things, that they were unaware of Iranian failed asylum seekers facing significant problems for that reason alone or from imputed political opinion arising from seeking asylum overseas, however, they were aware of incidents where persons with prior political profiles or who had actively campaigned against the regime had faced difficulties. The Federal Magistrates Court 23 The application for review to the Federal Magistrates Court, dated 10 April 2012, as amended was as follows: 1. The Assessor failed to make the Recommendation in accordance with the law by ignoring relevant material, making an erroneous finding or reaching a mistaken conclusion that was not open on the evidence. Particulars i. The applicant claimed that: i. he married in 1999 and divorced in 2009 (Recommendation, [12]); ii. he had been given sole custody of the one daughter from this union who was born in 2004 (Recommendation, [12]); iii. the mother of this daughter had remarried (Recommendation, [28]). ii. Relevant to the applicant's claim to have sole custody over his daughter, the Assessor had The Civil Code of the Islamic Republic of Iran ("Civil Code") before her (Recommendation, [51]). iii. Under Article 1169 of the Civil Code a daughter will remain in the custody of her mother until she is aged 7 years. Based (in part) on this Article, the Assessor rejected the applicant's claim to have sole custody over his daughter (Recommendation, [58]). iv. The Assessor found that this conclusion undermines the applicant's credibility in relation to his claim to fear persecution in Iran for a Convention reason (Recommendation, [60]). v. In making this finding the Assessor ignored Article 1170 of the Civil Code (or made an error or reached a mistaken conclusion that was not open on the evidence). This is because under Article 1170, if a mother remarries custody will devolve on the father. vi. In making this finding the Assessor had regard to an irrelevant consideration being a misapprehension of the application of Iranian law to the applicant. 2. The Assessor failed to give proper, genuine and realistic consideration to the applicant's claim to fear persecution by reason of being a member of the particular social group of failed asylum seekers, or failed to respond to a substantial, clearly articulated argument to that effect relying on established facts. Particulars a. The applicant claimed that there was a real chance he would be persecuted upon his return to Iran as a failed asylum seeker because of an imputed political opinion and his membership of the particular social group of failed asylum seekers (Statement dated 22 May 2011 at [28]; Submission dated 31 October 2011 at [62]-[63]; Recommendation at [25]). b. The Assessor held that there was no evidence that being a failed asylum seeker "results in" persecution on return to Iran (Recommendation at [82]). c. The Assessor ought to have considered whether there was a "real chance" that: i. the Iranian authorities or paramilitaries aligned to the regime impute returnees with anti-government or anti-Islamic Republic political views simply for applying for protection abroad; ii. the identity of the applicant would become known to Iranian immigration officials by reason of his need to apply for a new travel document or otherwise by the manner of his return to Iran; and iii. the applicant would be persecuted on return to Iran as a failed asylum seeker (1001288 [2010] RRTA 912 at [143]-[146]). d. The evidence before the Assessor was incapable of excluding a "real chance" of persecution. 3. The Assessor failed to put before the applicant material (or substance thereof) that the Assessor knew of and considered may bear upon whether to accept the applicant's claims. Particulars a. the applicant claimed a fear of persecution as a failed asylum seeker; b. in rejecting the applicant's claims in this regard, the Assessor relied upon information in the UK Home Office's 2010 Country of Origin Information Report: Iran to the effect that: i. some failed asylum seekers have been able to return to Iran without any problems ("Part 1"); and ii. persecution of failed asylum seekers is limited to incidents involving persons with prior political profiles or active campaigners ("Part 2"). c. the Assessor failed to put Part 2 (or the substance therefore) before the applicant and/or failed to put to the applicant that Part 2 (or the substance thereof) would be relied on in respect of the Assessor's findings that the applicant does not face a real chance of persecution on return to Iran as a failed asylum seeker. d. the Assessor otherwise failed to put before the applicant material (or substance thereof) that the Assessor knew of and considered may bear upon whether to accept the applicant's claims, or otherwise failed to put [sic] the applicant matters that were credible, significant and relevant to the Recommendation. 24 The Federal Magistrate addressed these grounds under the headings: Failure to consider evidence; making finding not open on the evidence; Finding not open on the evidence; Irrelevant consideration; Illogicality; Failure to consider claim; and Failure to provide adverse information to the appellant. 25 The illogicality ground was a further submission based on the assertion that the assessor had misunderstood the relevant operation of the Iranian Code. The appellant submitted it was irrational, illogical or unreasonable for the assessor to have concluded that his answers to the assessor's questions were not credible, when those questions were based on a misapprehension of the content and meaning of the relevant Iranian law. At the hearing the appellant raised a further ground not foreshadowed in his application or written submissions. This was to the effect that the assessor's finding that a court had not awarded him custody of his daughter was not claimed by him and thus the assessor's conclusion that a court had been involved was illogical. 26 As to the failure to consider the claim ground, the Federal Magistrate also noted that the appellant had implicitly argued in the alternative that there was a denial of procedural fairness in that the assessor considered and departed from the decision of the Refugee Review Tribunal (the Tribunal), where fairness would have required the assessor to have raised that matter with him 27 Overall, the Federal Magistrate concluded that the appellant had not demonstrated that the assessor's review was procedurally unfair or not conducted by reference to the correct legal principles. The appeal to this Court 28 The grounds of appeal to this Court, as sought to be amended by an amended notice of appeal filed in Court at the commencement of the hearing of the appeal, are as follows: 1. The Federal Magistrate erred in holding that: a. the second respondent ("Assessor") did not have to exclude the possibilities that the applicant faced a real chance of persecution or that he had a well-founded fear of persecution for a Convention reason; b. the Assessor's conclusion concerning the applicant's credibility could not have been affected by whether the matter of the custody of his daughter had been decided by a court; c. it was open to the Assessor to hold that there was no evidence before her that being a failed asylum seeker might result in persecution in Iran. 2. The Federal Magistrate erred in failing to hold that the Assessor constructively failed to exercise her jurisdiction by failing to consider the applicant's claim to have a well-founded fear of persecution on the basis that he was a failed asylum seeker without a valid travel document. 3. The Federal Magistrate erred in holding that the Assessor had observed the requirements of procedural fairness. In particular, the Assessor: a. rejected the appellant's claim as a failed asylum seeker without giving him a fair opportunity to be heard in relation to adverse country information; b. rejected the appellant's claim to custody of his daughter based on views of his and his wife's rights under Iranian law without giving him a fair opportunity to be heard in relation to his Iranian legal rights; and c. failed to consider whether there existed a particular social group of Iranian men who are perceived to have abandoned their families. 29 Ground 1 was not pressed and requires no further consideration. 30 The first respondent consented to the amendment so far as concerned paragraph 3.a., but opposed the amendments numbered 3.b. and 3.c. on the grounds that there had been no explanation for the delay, and the points were without any or sufficient merit. The parties agreed however that the entirety of the appeal should be heard, as if leave to amend had been granted, with the question of leave forming part of the final judgment of the Court. Since the amendment was unopposed in relation to Ground 3.a. I granted leave to amend to that extent. As will appear, and for the reasons I later give, I also grant leave in relation to Ground 3.b. but refuse leave in relation to Ground 3.c. Submissions 31 As to Ground 2, the appellant submitted that this claim, based on the reasoning of a decision of the Tribunal in 1001288 [2010] RRTA 912 (1001288) at [143]-[146], was required to have been, but was not, considered by the assessor. It was submitted that the appellant advanced a claim based on that decision. It was said that in that decision there were two important findings of general application, the first was that there was a real possibility that where an applicant could not be returned to Iran without obtaining a new passport or travel document, the applicant's status as a failed asylum seeker would be discovered either by the Iranian Embassy in Australia or by immigration officials upon re-entry to Iran and, second, an applicant who was discovered to be a failed asylum seeker in that manner faced a real chance of persecution on the basis of anti-government opinion imputed from their attempt to seek asylum. It was submitted that the assessor failed to consider this matter. 32 This submission was refined in oral submissions to the effect that this claim was expressly advanced by the appellant, or squarely raised by certain materials, particularly in the written submission by the appellant's migration agent dated 25 May 2011 in combination with a comment made by appellant at the interview of 1 November 2011. These written submissions reproduced various extracts of the decision of the Tribunal in 1001288 and it was submitted that it followed from a fair reading of this material that the appellant was advancing a claim that an Iranian who sought asylum in Australia if he were returned to Iran without valid travel documents would face an appreciable risk of persecution when returned to Iran. The assessor failed to consider this specific claim that the appellant had a well founded fear of persecution on the basis that he was a failed asylum seeker without a valid travel document. This failure, it was submitted, amounted to a failure to consider the claim and a denial of procedural fairness in the sense discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088. 33 The first respondent submitted that the claim advanced was as a failed asylum seeker, the question of a valid travel document being a subsidiary issue as the mechanism by which a failed asylum seeker might be identified. The question of a valid travel document was not the claim itself but did no more than make the claim viable. Further, there was material before the assessor, which included the Tribunal decision in 1001288, but that material was nothing more than material to be weighed in determining the claim as distinct from making or delineating the claim. The assessor weighed the material before her and concluded she was not satisfied on the basis of that material that the appellant's claim could be substantiated. 34 As to Ground 3, the procedural fairness ground, it had three independent limbs. The first, Ground 3.a., related to the assessor's use of a Home Office report in rejecting the appellant's claim to face more than a remote chance of persecution in Iran on the basis of being a failed asylum seeker. The second, Ground 3.b., was in relation to Iranian law. The third, Ground 3.c., was in relation to social groups, in particular whether the appellant was a member of a particular social group of men who had abandoned their families. 35 As to Ground 3.a., it was submitted that the assessor relied on adverse country information to conclude that only failed asylum seekers who fitted one of the specified political profiles faced persecution. This was said to turn on the assessor's reasons being, first, that she rejected the appellant's claim that a failed asylum seeker faced more than a remote chance of persecution on return to Iran and, second, she did so only after considering the (adverse) information in the 2010 Home Office report. In oral submissions, the sole question was said to be: When the assessor rejected the appellant's claim that there was more than a remote chance that a failed asylum seeker could face persecution on their return, was part of the reason for doing so the information in the Home Office report to the effect that the only asylum seekers who faced persecution were those with the specific profiles to which the assessor referred. If the answer was "yes", there was a denial of procedural fairness and if the answer was "no", there was not such a denial. 36 The first respondent submitted that although it was common ground that the Home Office report, or the substance of it, was not put to the appellant, the material complained of by the appellant was not adverse when considered against the conceptual backdrop that the appellant claimed he would face persecution by reason of the simple fact of being a failed asylum seeker. The Home Office report made the same distinction when it dealt with Iranian failed asylum seekers facing problems for that reason alone or from imputed political opinion arising from seeking asylum overseas, and then by way of contrast, with that Office's awareness of incidents where persons with prior political profiles had faced difficulties. It was by reference to the first proposition that the assessor concluded that there was no information that being a failed asylum seeker (by reason of that fact alone) resulted in persecution on return to Iran. 37 As to Ground 3.b., this involved Article 1169 and Article 1170 of the Iranian Civil Code and the custody of the appellant's daughter who was born in 2004. I have set out above at [7] the terms of those Articles in the form they were before the assessor. 38 It was submitted that the effect of Article 1170 was that the appellant had a legal right to custody. The appellant was not given a fair opportunity to advance claims in support of his legal rights under Iranian law in response to the views expressed by the assessor. It was submitted, that to the extent the assessor proposed to rely on the existence or absence of the appellant's or his wife's legal rights under Iranian law, or any adverse information which was credible, relevant and significant and any conclusions which were not obviously open on the material known to him, fairness required it to be put to the appellant in writing. 39 In oral submissions, it was put that it was not enough for the assessor to decide herself whether the Code gave to the appellant, or denied him, a legal right to custody: she had to give him a fair opportunity to be heard on that matter, including in relation to a conclusion that he did not have that legal right for some reason. The appellant submitted that on the evidence accepted by the assessor, the appellant was going to get custody of the daughter sooner or later, and it could have been no later than three or four months after his divorce and may well have been, by agreement or arrangement, at the time of his divorce. 40 The first respondent submitted that the assessor in asking the question directed to whether the appellant's wife had remarried at the time they decided on custody for their daughter was considering the potential applicability of Article 1170 and the answer provided clear material which permitted no other conclusion than that Article 1170 could not possibly apply. The answer was clear that the wife had not remarried at the time they decided on custody for the daughter and it was clear that the interaction between Article 1169 and Article 1170 was such that the effect of the answer was that the wife's custody of the daughter under Article 1169 would continue. It was accepted that neither the text of the Articles nor the relevant page of the essay "Family Law in Iran" by Sen McGlinn on which the assessor relied were provided to the appellant or his adviser. 41 As to Ground 3.c., the appellant accepted that this claim that the appellant was a member of a particular social group of men who had abandoned their families was not expressly advanced to the assessor. Nevertheless, the appellant submitted, this unarticulated claim became apparent because of the particular findings of fact made by the assessor. It was then submitted that once those findings were made and that claim became apparent the appellant had to be heard in relation to it. 42 The first respondent submitted that this matter did not form part of a claim and was not squarely raised. The appellant never said he feared persecution because he had abandoned his family. The claim was illusory. Consideration Ground 2 43 The first issue in relation to Ground 2 is whether the appellant claimed to have a well-founded fear of persecution on the basis that he was a failed asylum seeker without a valid travel document. 44 The appellant's representative, a registered migration agent of Craddock Murray Neumann Lawyers, is recorded as having added at the end of the POE interview: • claim political opinion PSG (failed asylum seeker) • client is not able to respond to country information not named • ordinary Iranians have been tortured and killed • those returned had been detained and some disappeared I quote from RRT report, returnees have been subject to varying degrees of ill treatment, from interrogation, detention, physical harm. Some returnees from Canada had been killed because of physical harm. It was suggested by counsel for the appellant that "PSG" was probably an acronym for "Particular Social Group". 45 The appellant's registered migration agent provided a four page file note to the Department recording, relevantly, the basis of the appellant's claims. In relation to the present question the file note suggests no more than that the necessity to obtain a travel document will mean that an unsuccessful asylum applicant would be detected upon re-entry into Iran because there would be no exit stamp on his new travel document. Reference was made to the report of the Danish Immigration Service in 2009. The registered migration agent requested that five different reports be taken into consideration in the assessment of the appellant's claim: one of those reports was 1001288 [2010] RRTA 912. 46 A further extensive submission was put on the appellant's behalf by an 18 page letter to the assessor dated 31 October 2011 from Fragomen. Relevant to the present question, one of the issues said to arise was: "Is there a real chance of the Claimant being persecuted as a failed asylum seeker, if forced to return to Iran." Submissions under this issue were made at pages 16 to 18 of that document, with reference to a Refugee Review Tribunal document IRN37255 which was said to show that there was more than a remote chance of a failed asylum seeker facing persecution on return to Iran. It was said it did not matter whether such persecution was by reason of their actual or imputed anti-regime political opinion or whether it was simply by reason of being a member of a political social group of failed asylum seekers. 47 I note that included in the Appeal Book is a transcript of the Independent Protection Assessment interview held on 1 November 2011. Present by video conference was the appellant's migration agent from Fragomen. 48 I reject the submission that the appellant advanced a claim to have a well founded fear of persecution on the basis that he was a failed asylum seeker without a valid travel document or that such a claim was squarely raised by the materials relied on, particularly the decision of the RRT in 1001288 at [143]-[146]. Much of the material referred to in the appellant's migration agent's four page note was not unique to that RRT decision; and even if it was solely attributable to that decision it would not follow that the claim as presently articulated was then made. I reject the submission that anyone who read the RRT decision in 1001288 could not have failed to realise the extent to which reliance was being placed on it in this agent's submission. To the contrary, it would take a deal of education and cross-referencing to begin to understand how it could be arguable that such a claim was being made by reference to the RRT decision. Similarly, I also reject the submission that this was a claim which was, or should have been, apparent to the assessor from the materials relied on by the appellant. In my opinion the proposition that the claim was advanced or was squarely raised by the material involves a process of reconstruction leading at best to a claim by inference but one which in my view was not squarely raised by those materials. 49 In this respect I agree with the Federal Magistrate who expressed the same view at [60] of his Honour's reasons. I also agree with his Honour at [60] that the significance of the lack of a travel document lay in the fact that it might indicate to the Iranian authorities that the undocumented person was a failed asylum seeker. In my view to identify a different claim and then to request the decision-maker to take into account five reports, one of which were reasons and findings of the RRT in another matter, does not, without more, amount to making a claim on that basis. 50 The Federal Magistrate referred to this claim at [48]. It seems that it was made in a different context, that is, in relation to two mistakes said to have been made by the assessor at [82] of her reasons: see the judgment of the Court below at [49]. 51 The Federal Magistrate referred again to this claim at [50] in the context of an argument that the appellant had been denied procedural fairness; see above at [26]. 52 I do not understand the matters I have referred to in the two immediately preceding paragraphs to be pressed on the present appeal. In any event I would reject those submissions. As to the reference to "I do not accept that there is any information that being a failed asylum seeker in [sic] results in persecution on return to Iran", in my view the assessor was referring to any relevant country information and, further, it was a finding of fact. Also I would reject the proposition that the assessor failed to apply the correct test since she referred to that correct test at the end of the paragraph presently under consideration. The observations of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 apply. As to the procedural fairness proposition I see no basis upon which a decision maker, who self-evidently is required to evaluate the facts before her, can be under a duty to take procedural steps before making findings of fact different from those arrived at in another case merely because she is referred to it. 53 In my opinion, Ground 2 must be rejected. Ground 3 54 As to Ground 3.a., in my view this involves an impermissible reading of the assessor's reasons. The assessor found that the mere fact of being a failed asylum seeker did not result in persecution on return to Iran. She then went on to say that there was information that returnees of certain political profiles may be mistreated on return but that the appellant did not have such a profile. The operative finding was the mere fact of being a failed asylum seeker which, the assessor found, was the appellant's position. The appellant does not complain in these proceedings that there was any procedural unfairness in the assessor making a finding that the mere fact of being a failed asylum seeker did not result in persecution on return to Iran. I accept the first respondent's submission that the material did not need to be put to the appellant because the material was not adverse. In my view there is a false dichotomy in the question framed in oral submissions on behalf of the appellant, which I have set out above at [35], because the concept of a failed asylum seeker without more necessarily entails an absence of anything else such as a political profile. 55 I therefore reject the submission that the assessor failed to observe the requirements of procedural fairness by not providing the appellant with an opportunity to be heard in relation to the Home Office material. Ground 3.a. must be rejected. I find no error in the reasons of the Federal Magistrate on this issue at [71] of his Honour's reasons for judgment. 56 As to Ground 3.b., this matter concerning Article 1170 of the Iranian Civil Code was not put as a procedural fairness ground in the Federal Magistrates Court. Instead it was put as a failure to consider evidence/ignoring relevant material; making an error or reaching a mistaken conclusion that was not open on the evidence and illogicality or taking account of an irrelevant consideration. The relevant finding of fact by the assessor was that she did not accept the appellant's claim that he was the legal custodian of his daughter. The first step to that conclusion was that under Article 1169 of the Iranian Civil Code and by reference to "Family Law in Iran" by Sen McGlinn to which I have referred, the mother is said to have priority where a girl is under seven years old. 57 The crucial series of questions and answers at the interview was as follows: TRIBUNAL MEMBER: Why or how, how was it that you were given custody of your daughter?, because I understand that under the Iranian civil code that children under the age of 7, girls under the age of 7 usually are given to their mother. THE INTERPRETER: He said because of my political views and also I insisted my wife to have my daughter with me because he did not want his daughter getting caught with any political views that was amongst his wife's family. TRIBUNAL MEMBER: Was your wife in agreement with that? THE INTERPRETER: Because my wife got married. … TRIBUNAL MEMBER: I just would like to go back and just clarify about the custody of your daughter, I understand that the custody arrangements were sorted through the court. Did that happen at the same time as the divorce? THE INTERPRETER: He said that well I talk to my wife and I said to her that I don't want my daughter being brainwashed by their religious views that is in the family. I want my daughter to become an open minded and intellectual person. TRIBUNAL MEMBER: And your wife was in agreement? … TRIBUNAL MEMBER: … just go back to the custody of your daughter, you said to me earlier that the reason you had custody was because your wife re married somebody … … TRIBUNAL MEMBER: My point though is that at the time you decided on custody for your daughter, your wife hadn't re married. THE INTERPRETER: He said no she was not married but maybe it was a process that had been pre planned before to get married. 58 It is plain that the assessor had in mind in asking the last question in this excerpt the terms, meaning and effect of Article 1170, which she did not disclose in the course of the interview or otherwise. Implicit in the assessor's reference to Article 1169 in her reasons is that Article 1170 did not apply. I accept that the appellant's evidence before the assessor was that at the time the appellant and his wife decided on custody for their daughter the wife had not remarried, but this does not mean that the position was so clear that it was not procedurally unfair for the assessor to proceed as she did. 59 In my view, a number of factors in combination had the result that the procedure was unfair in respect of this issue, resulting in the findings of the assessor, which I have set out at [6] above, which were, in short, that the assessor did not accept that the appellant was awarded custody of his daughter by the court in Iran in 2009 when she was five years of age. 60 First, as I have said, plainly the assessor had Article 1170 in mind, particularly when asking the appellant the question beginning: "My point though is …". Second, the assessor did not disclose to the appellant the terms or the source of the information she had as to that Article (although by implication she had so referred to Article 1169). Third, the appellant had referred to an agreement with his wife (that he should have custody) because she got remarried. This was put back to the appellant inaccurately as the remarriage being the reason that the appellant had custody. Thus the question of the parties' agreement operating upon the terms of Article 1170 was put to one side. Fourth, the assessor then used the time of decision, before the remarriage of the wife, as the sole factor displacing the operation of Article 1170, thus confirming the operation of Article 1169. This conclusion was reached without putting to the appellant the matter of agreement against the literal automatic operation of Article 1170, particularly whether the pre-planned remarriage may have affected the custody issue. This was given added point by virtue of the appellant's answer, not further explored, to the assessor's question with the undisclosed premise beginning: "My point though is that at the time you decided on custody for your daughter, your wife had not re married." Presumably the assessor would have accepted that Article 1170 would have given custody of the daughter to the appellant three or four months later, that is, when the appellant's wife actually remarried. I also note that the assessor put to the appellant that the court in Iran had been involved in "sorting" the custody arrangements. This may suggest that the provisions of the Code may not operate automatically or that the appellant's legal rights would not necessarily be derived from the apparently absolute terms of Article 1170. This also was not further explored with the appellant. 61 In my view, the terms of Article 1170 as a provision of the law of Iran and the potential operation of that law on or to the facts of the appellant's case should have been brought to the surface so that the appellant, as a matter of fair procedure, had an opportunity to deal with it. Without disclosing the premise of the question, founded on the literal and automatic operation of Iranian law, the series of questions, particularly the question beginning "My point though is …", and the use made of the appellant's answers were procedurally unfair. 62 My conclusion accepts that the identification and content of Iranian law was a question of fact to be decided by the assessor: see Troughton v Deputy Commissioner of Taxation (2008) 166 FCR 9 at [44] and the cases there cited. The consequence is that the matter does not fall within the exception referred to in Stead v State Government Insurance Commission (1986) 161 CLR 141 (Stead) at 145, by way of illustration: . . . not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial. Rather, the present case concerns a question of fact, the more common case, referred to by the High Court in Stead in the paragraph immediately following the passage I have set out: Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. 63 It may ultimately turn out to be the case that there is only one answer, in the sense that Article 1170 has a literal and automatic operation, but the appellant should have been given an opportunity to deal with that matter, and he was not. I refer also to the note of caution sounded by the Administrative Appeals Tribunal in Re YYMT and FRFJ (2010) 115 ALD 590 at [67], when it comes to a tribunal determining foreign law. 64 In my view, contrary to the submissions of the first respondent, the findings which I have set out in [6] and [56] above could have been affected by what I have held to be the procedural unfairness. Further, the factors there referred to were said by the assessor to undermine the appellant's credibility in relation to his claims. It follows that, subject to the question of leave to amend, relief should be granted in this respect. 65 On the question of leave to amend, I take into account that the appellant had as part of his application to the Federal Magistrates Court a number of grounds of review relating to the assessor's use of this Article and the way in which the appellant now seeks to put this point, denial of procedural fairness, has a shared substratum of fact with those previous ways of putting his complaint. In substance this is a new legal categorisation of a complaint previously made. As I have held, the point has merit. The first respondent identified no specific prejudice. I grant leave to rely on Ground 3.b. 66 In my opinion, Ground 3.b. succeeds and I would allow the appeal on this ground. 67 As to Ground 3.c., this ground was not only not articulated before the assessor but also was not the subject of the application for review to the Federal Magistrates Court. In my view this is not an appropriate case in which leave should be granted to argue this ground. Counsel for the appellant provided by way of explanation no more than that he had not previously thought of the point. The role of this Court on the present appeal is to correct any appealable error in the judgment of the Federal Magistrates Court. This Court is not the appropriate forum in which to advance fresh claims based on alleged errors by the assessor in relation to contestable facts which do not squarely raise the unarticulated claim. In my view the point has little merit. I take into account that the appellant has had appropriate and competent representation at all times. I refuse leave to rely on Ground 3.c. Conclusions and Orders 68 For these reasons I allow the appeal. As to costs, I asked counsel what their submissions were if I were to allow the appeal on either of the proposed new grounds. The first respondent's submission was that in that case the appellant should have his costs in this Court but the costs orders below should remain undisturbed. In relation to new ground 3.b., the appellant submitted that it was so closely connected with what had been put below that the appellant should have his costs both in this Court and in the Federal Magistrates Court if he succeeded on that ground in this Court. In my opinion the appropriate exercise of discretion is that the appellant should have his costs in this Court but the costs order below should not be disturbed since the appellant has succeeded on a point not argued before the Federal Magistrate and has not succeeded on any of the points on which the application was argued before his Honour. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 16 November 2012