Federal Court of Australia CBV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1566 Appeal from: CBV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 184 File number(s): VID 194 of 2022 Judgment of: HESPE J Date of judgment: 22 December 2022 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit and Family Court (Circuit Court) dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) affirming a decision of the Minister's delegate – where notice of appeal included grounds not raised before the Circuit Court – whether interests of justice favoured grant of leave to raise new issues not raised before the Circuit Court – whether the IAA failed to consider integers of the Appellant's claim Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65 Cases cited: AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 36 Date of hearing: 10 November 2022 Counsel for the Appellant: Mr A McBeth Solicitor for the Appellant: Bardo Lawyers Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 194 of 2022 BETWEEN: CBV17 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: HESPE J DATE OF ORDER: 22 December 2022 THE COURT ORDERS THAT: 1. The Appellant have leave to raise the grounds of appeal set out in the notice of appeal dated 11 April 2022. 2. The appeal be dismissed. 3. The Appellant pay the First Respondent's costs of the appeal to be assessed by a Registrar on a lump sum basis if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT HESPE J: 1 This is an appeal from a decision of the Federal Circuit and Family Court (Circuit Court), dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) that affirmed a decision of the Minister's delegate under s 65 of the Migration Act 1958 (Cth) (the Act) to refuse to grant the Appellant a Temporary Protection (Subclass XD-785) visa. 2 The Appellant is a national of Iran and a member of an Arab ethnic minority. Relevant to this appeal, his claim for protection arose from his relationship with a married woman (M). The IAA accepted that the Appellant had engaged in a sexual relationship with M, but was not satisfied that there was a real chance or risk that the Appellant would be subject to serious or significant harm on his return to Iran. 3 The Appellant was unrepresented in the proceedings in the Circuit Court. Having obtained representation in this appeal, the Appellant abandoned the grounds relied upon in the Circuit Court and sought leave to raise two new grounds. 4 Leave to argue a ground of appeal not raised before the court below may be granted if it is in the interests of justice to do so. As the Full Court said in CGA15 v Minister for Home Affairs [2019] FCAFC 46; (2019) 268 FCR 362 at 372 [36] (Murphy, Mortimer and O'Callaghan JJ) (footnotes omitted): There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant. The merit of the proposed new ground is an important consideration. 5 It bears repeating that the Appellant was unrepresented in the Circuit Court and is making a claim for a protection visa. The Respondents were notified of the new grounds of appeal at the time the notice of appeal to this Court was filed. The grounds turn on the construction of the IAA's reasons. The First Respondent could not point to any prejudice if leave to raise the new grounds were granted. The merits of the proposed new grounds therefore fall for consideration. 6 The Appellant also sought leave to adduce one item of evidence that was not before the Circuit Court, being an item of country information that was before the IAA and referenced in the IAA's decision. The First Respondent did not object to the adducing of that evidence. There being no prejudice to the First Respondent, leave was granted at the hearing, permitting that evidence to be adduced. GROUNDS OF APPEAL 7 Before this Court, the Appellant sought to rely on the following two grounds: (1) The primary judge erred in failing to find that the IAA had failed to give proper consideration to an integer of the Appellant's claim, namely that the Appellant faced a real chance of serious harm from the husband of the woman with whom the Appellant had had an affair. (2) The primary judge erred in failing to find that the IAA failed to give proper consideration to an integer of the Appellant's claim or, alternatively, failed to assess the chance of harm into the reasonably foreseeable future, in that the IAA failed to consider whether the return of the Appellant to Iran would prompt M's husband's family to report the adultery to the authorities. FIRST GROUND 8 There was no dispute that a failure by the IAA to consider an integer of a claim can give rise to jurisdictional error: see, eg, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 152 [42] (Allsop J, Spender J agreeing at 137 [1]); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 18–9 [58] (Black CJ, French and Selway JJ). The dispute in this case was whether, on the facts and having regard to the IAA's reasons, there had been such a failure. Reasons of the IAA 9 The IAA accepted that the Appellant's claims of past events were generally credible and that the Appellant recalled events truthfully (at [8]). It accepted that the Appellant was involved in a sexual relationship with M for approximately seven months (at [9]–[10]) and that, after M's husband found out about their affair in around 2011, M's husband and family had come to the Appellant's house to look for and to threaten the Appellant (at [12]). The IAA also accepted that the Appellant felt he could not return to his home for fear of being harmed by M's husband's family (at [12]) and that, as a result of the incident involving M's husband and his family, the Appellant became fearful and relocated to a different part of Iran, far away from his home city (at [13], [17]). 10 The IAA referred (at [14]) to country information and said (footnotes omitted): Country information states that any sexual relationship outside of marriage is considered a crime in Iran and is punishable by 100 lashes and in some cases stoning to death however that pre-marital and extra-marital relations are common and unmarried couples appearing together in public are very common, particularly in the middle and upper classes. DFAT assesses that the authorities generally turn a blind eye to such couples, in part because—if questioned—such couples may suggest they have a religiously-sanctioned temporary marriage. Successful prosecutions for adultery are difficult, given the legal requirement for four witnesses. Moreover, adultery is often not reported, for reasons of "honour". DFAT is unable to provide further information on court cases relating to adultery, given lack of access to legal proceedings. Women are at a greater risk of being accused and convicted of adultery owing to a negative social stigma associated with women's sexuality, discriminatory laws and societal acceptance of honour crimes. Families often commit honour crimes where they feel the family reputation has been damaged and Iranian law allows men to kill their spouse if caught in the act of committing adultery. 11 The IAA was not satisfied that the Appellant would face a real chance of serious harm from the Iranian authorities on the basis of committing adultery (at [16]). 12 The IAA also considered whether the Appellant would suffer serious harm if he returned to Iran as a result of a "blood feud" (at [17]). The IAA was not satisfied that the Appellant had been sought out by M's husband's family since the isolated incident in 2011 and since the Appellant had moved away to another part of Iran. The IAA noted that, prior to his arrival in Australia, the Appellant had lived in that other province for two years without incident relating to M's husband's family. The Tribunal concluded that it was not satisfied that the Appellant would face a real chance of serious harm as the result of a blood feud on return to Iran, now or in the reasonably foreseeable future. Contentions of the Parties 13 The Appellant contended that the IAA had failed to complete its review task because it failed to consider one source of harm relevant to the Appellant's claim. The IAA expressed a conclusion about the chance of serious harm from the Iranian authorities and the prospect of harm as a result of a blood feud, but not whether the Appellant faced a real risk of significant harm from M's husband directly, as a personal response to the Appellant's affair with M. 14 The Appellant submitted that, based on country information, M's husband would have impunity under Iranian law if he were to kill the Appellant for engaging in adultery with his wife. The Appellant relied upon the following statement in the country information that was before the IAA in a document published by the UK Home Office entitled "Country Policy and Information Note — Iran: Adulterers", dated 2 November 2016 (UK Home Office document) (at [2.3.2]): The Penal Code also permits a husband to kill his wife and her lover, if he caught them in the act. However, if he knows his wife acted under coercion, he is only permitted to kill her rapist (see Penal Code and Punishment). 15 The Appellant submitted that, by considering the risk of harm through the prism of a blood feud, the IAA failed to consider whether the Appellant faced a real risk of significant harm from M's husband directly. 16 The First Respondent contended that the country information did not support a contention that M's husband could kill the Appellant with impunity under Iranian law. The UK Home Office document (at [4.1.9]) stressed the exemption of a husband "in cases where he kills his wife and her lover in flagrante", where "in flagrante" is the Latin term for "in blazing offence" and is a legal term that indicates a criminal has been caught in the act of committing an offence. Here, the Appellant did not claim to have been caught in the act. In these circumstances, a claim that the risk of harm arose from M's husband directly could not be said to "clearly emerge" from the country information material before the IAA. 17 Furthermore, the First Respondent submitted that the IAA considered the risk of harm from M's husband as part of its consideration of the risk of harm as a result of a "blood feud" and this consideration was sufficient to discharge the IAA's task. The Country Information 18 The IAA, citing the UK Home Office document, noted (at [14]): [c]ountry information states that any sexual relationship outside of marriage is considered a crime in Iran and is punishable by 100 lashes and in some cases stoning to death. 19 The IAA also observed (at [14]), citing a report published by DFAT in April 2016 entitled "DFAT Country information Report Iran" (DFAT Report): pre-marital and extra-marital relations are common and unmarried couples appearing together in public are very common, particularly in the middle and upper classes 20 The IAA also noted, by reference to the DFAT Report (at [14]): Successful prosecutions for adultery are difficult, given the legal requirement for four witnesses. Moreover, adultery is often not reported, for reasons of 'honour'. DFAT is unable to provide further information on court cases relating to adultery, given lack of access to legal proceedings. 21 The UK Home Office document (at [6.1.3]) noted that a report compiled by the Finnish Immigration Service dated 26 June 2016 stated that: Although a man has a legal right to kill his wife and lover if he catches them in the act of adultery, cases in which the provision is applied in practice are rare. According to Sharia law, the man would need to have four witnesses to the act, which is almost impossible to achieve in practice. In one case reported by the media, a man who had killed his wife's lover after catching them in the act was sentenced to death under the qisas principle, as he was unable to prove the adultery had taken place. The qisas sentence was nevertheless overturned on appeal. Consideration 22 In considering whether the Appellant would suffer serious harm if he returned to Iran as a result of a "blood feud", the IAA referred to three matters which it accepted as facts (at [17]): (1) that the Appellant had engaged in a sexual relationship with M and that both families were not impressed with the Appellant; (2) that both families were from different tribes; and (3) that M's husband, brothers and cousins had threatened the Appellant once and that, as a result, the Appellant had moved to a different province of Iran. 23 The IAA concluded (at [17]) that: On the evidence before me, I am not satisfied that M's family have sought him after an isolated incident in 2011. The [Appellant] was living in [a different province of Iran] for two years without incident relating to M's family and I consider it farfetched that someone would be asking about him two years after the [Appellant] was caught having an affair with M. The incident involving M's husband at the [Appellant]'s house occurred approximately six years ago. I am not satisfied that there is any ongoing blood feud as a result of the [Appellant]'s relationship with M. 24 As the First Respondent conceded, the term "blood feud" is not apt to describe the circumstances. Based on reading the IAA's reasons as a whole, the reference to "blood feud" is to be read as a reference to the threats from M's husband and his family as a result of the Appellant's affair with M. The conclusion expressed by the IAA in relation to the "blood feud" follows its consideration of the risk of harm from M's husband and his family. The consideration of a threat from M's husband was undertaken in the course of the IAA's consideration of what it termed the "blood feud". In that sense, the consideration of the threat from M's husband was subsumed in the IAA's consideration of the threat from M's husband and family: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at 604–5 [47] (French, Sackville and Hely JJ). 25 The Court does not accept that the IAA had an obligation to consider the threat of harm from M's husband further as part of a separate consideration. A claim that the Appellant was at risk from M's husband based on the impunity allegedly conferred upon the husband by Iranian law does not "emerge clearly" from the material before the IAA: see NABE 144 FCR at 18–9 [58] (Black CJ, French and Selway JJ). The country information recorded that a husband was permitted to kill his wife and her lover if he "caught them in the act". But the information also records that this requires four witnesses to the act. There was no suggestion in the material before the IAA that there had been witnesses to any act. The Appellant's evidence was that he and M were seen together by "a mutual friend". Although it is not clear from the country information whether the requirement of being "caught in the act" extends to cases where a husband "knows his wife acted under coercion", there was nothing in the material before the IAA that suggested that M's husband or family had made any threats on the basis of that the Appellant had coerced M. 26 Accordingly, there was no failure by the IAA to consider an integer of the Appellant's claim. SECOND GROUND 27 The second ground of appeal concerns the manner in which the IAA assessed the chance of serious harm to the Appellant from the Iranian authorities in the reasonably foreseeable future. 28 The IAA addressed the issue of whether the Appellant would face a real chance of serious harm from the Iranian authorities on the basis of committing adultery, now or in the reasonably foreseeable future, in the following terms (at [15]–[16]): [15] The [Appellant] has not directly claimed a fear of harm from the Iranian authorities as a result of his affair with M. Nor has he indicated that his actions have come to the attention of the Iranian authorities. At his TPV interview, the [Appellant] claimed that M's tribe may have taken legal action or taken the matter to court and as far as he knew they might have done that. When questioned regarding why he thought the other tribe may have done that, the [Appellant] responded that other tribes would make fun of M's tribe and they would need to take it into their own hands. Although I have found the applicant generally credible, there is no other evidence before me to suggest that he has any outstanding court matter in Iran regarding his adulterous relationship with M, and I consider this aspect of his claims to be speculative. I am not satisfied, on the evidence before me, that M's family reported the adulterous relationship to the authorities. I note that the [Appellant] stated in his TPV application that he would call his family about twice a week to check up on their situation. I would expect that if something had happened to M or if there was any outstanding legal action against him, his family would have informed him. I am not satisfied that there is any outstanding legal action pending against the [Appellant]. I am also not satisfied that the Iranian authorities, including the Basij, Etelaat or any other Iranian authority are aware of, or have any interest in, the [Appellant]'s relationship with M. [16] I am not satisfied that the [Appellant] would face a real chance of serious harm from the Iranian authorities on the basis of committing adultery now or in the reasonably foreseeable future. 29 The Appellant submitted that the IAA assessed the chance of harm from the Iranian authorities based upon whether, at the time of its assessment, there was an outstanding court matter in Iran regarding his adulterous relationship with M and whether M's family had reported the adulterous relationship to the authorities. The Appellant submitted that, in making its assessment, the IAA had failed to discharge its obligation to assess the chance of harm into the reasonably foreseeable future by failing to consider whether the Appellant might come to the attention of the authorities in the future, upon removal from Australia to Iran. In particular, the IAA did not consider whether the return of the Appellant to Iran would prompt M's family to report the adultery to the authorities. 30 It was not disputed that, in performing its task of addressing whether the Appellant satisfied the criteria for a protection visa in s 36 of the Act, the IAA was required to consider whether the Appellant would face a real chance of serious harm if the Appellant were returned to Iran (see ss 36(2)(a), 5H and 5J) or a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Iran (s 36(2)(aa)). Nor was it disputed that the Tribunal was required to assess the risk of such harm in the foreseeable future: see, eg, SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2] (Allsop J); AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [26] (Perry J). What is meant by that risk of harm was described by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]–[60]: [59] In my opinion, the prospects of success of the proposed new ground of appeal depend in part on the understanding of what is meant by the now well-established and orthodox approach to the determination of risk of harm to a person occurring in the future: that is, is there a real chance a person may suffer serious harm on return to her or his country and nationality: see generally Chan Yee Kin v Minister for Immigration (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J). To make that assessment, there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is "foreseeable" or "reasonably foreseeable": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 279 (Brennan CJ, Toohey, McHugh and Gummow JJ); NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13]; Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] (Heerey, Moore, Goldberg JJ); SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292 at [7] (Flick J). [60] The "reasonably foreseeable future" is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. 31 The Appellant sought to cavil with the manner in which the IAA had come to the conclusion that the Appellant would not face a real chance of serious harm from the Iranian Authorities in the reasonably foreseeable future on the basis that the IAA did not have regard to the risk that, as a consequence of the Appellant returning to Iran, M's family might be motivated to report M to the authorities, notwithstanding that the family had not done so to date. 32 The Appellant, in written submissions, referred to the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). The High Court there stated: In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act). It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities. The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability — high or low — of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 33 The IAA was required to consider the reasonably foreseeable future in the context of the claims made: see, eg, SZGHS [2007] FCA 1572 at [28] (Allsop J). No specific claim was made that the Appellant faced a real chance of harm in the foreseeable future on the basis that, should the Appellant return to Iran, M's family might be motivated to report M to the authorities, notwithstanding the family had not done so to date. Nor was there a basis on which it could be said that such a claim clearly emerged from the materials before it. The IAA recorded (at [15]) that the Appellant had not "directly claimed a fear of harm from the Iranian authorities as a result of his affair with M" and had not claimed that his actions had come to the attention of the Iranian authorities to date, including during the time in which he had remained in Iran. In light of the fact that no report had been made to the Iranian authorities at any time while the Appellant had been Iran, a claim that his return to Iran would prompt M's family to so report him does not clearly emerge from the materials before the IAA. 34 In assessing the risk of harm, the IAA was required to engage in reasonable speculation about what might occur in the future. The IAA formed its assessment that the Appellant would not face a real chance of serious harm from the Iranian authorities in the foreseeable future based on what had occurred to date. It was open to the IAA to do so in the context of the claims made and the evidence before it. The second ground of appeal does not support a conclusion that there was jurisdictional error. CONCLUSION 35 Given the Appellant was not represented below, I am satisfied that Appellant has a satisfactory explanation for why the points raised on appeal were not relied upon before the primary judge. In the circumstances, notwithstanding the wholesale abandonment of the grounds of review before the Circuit Court, I am prepared to grant leave to the Appellant to raise the proposed grounds but dismiss the appeal for the reasons set out above. 36 The Appellant is to pay the First Respondent's costs of the application for leave and of the appeal, to be fixed on a lump sum basis. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe. Associate: Dated: 22 December 2022