Aav19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)
[2021] FedCFamC2G 65
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AAV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 65
File number(s): SYG 10 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 19 October 2021 Catchwords: MIGRATION – review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – Authority finding that the applicant resigned from the Iraqi Army rather than deserting as he claimed – finding not justified on the available material – jurisdictional error established Legislation: Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 46A, 473CB, 473DB, 473DC, 473DD, 476
Federal Circuit Court Rules 2001 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014
Cases cited: AAV19 v Minister for Home Affairs & Anor [2019] FCCA 517
AAV19 v Minister for Home Affairs [2020] FCA 287
AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111
Ashby v Slipper (2014) 219 FCR 322
BDI17 v Minister for Immigration [2018] FCCA 2162
BVZ16v Minister for Immigration and Border Protection (2017) 254 FCR 221
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DPI17 v Minister for Home Affairs (2019) 366 ALR 665
Lee v for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464
Minister for Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 82 Date of hearing: 21 September 2021 Place: Sydney Counsel for the Applicant: Ms R Francois, pro bono publico Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Clayton Utz ORDERS
SYG 10 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAV19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
19 OCTOBER 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 3 December 2018 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 3 December 2018. The Authority affirmed a decision of a delegate of the Minister (delegate)[1] not to grant the applicant a protection visa.
[1] Court Book (CB) 153-180
The following statement of background facts is derived from the submissions of the parties.
The applicant is a 33 year old male citizen of Iraq who arrived in Australia as an irregular maritime arrival on 16 July 2013.[2]
[2] CB 3, 53, 60
On 5 June 2017, after the Minister lifted the bar in s 46A of the Migration Act 1958 (Cth) (Migration Act),[3] the applicant made the application for a Safe Haven Enterprise Visa (SHEV).[4]
[3] noting CB 85.2 does not indicate when the bar was lifted
[4] CB 27- 82
The applicant provided a three page statement in support of his claims for protection which were as follows:[5]
(a)he was a soldier in the Iraqi Army (Army) and in September 2012 he was deployed to a prison riot where he was injured and taken to hospital and he recuperated at home in Basra for a couple of months before returning to the Army;[6]
(b)upon return to the Army, his posting in Tikrit became dangerous as the locals, who were a majority Sunni population, were angry after the damage from the riot and the Army, and the applicant feared for his safety based on his being involved in trying to suppress the riot and his Shia religion. He applied for leave for look after his son at home and then did not return to the Army and did not obtain a discharge from the Army;[7]
(c)while he was at home in Basra he heard that strangers had been asking about him and he feared that angry people from Tikrit may have tracked him down and his life was danger;[8] and
(d)he feared harm if he was to return to Iraq because he had left the Army without permission, and he thus could face false accusations and be imputed with an adverse political opinion to the government and he also feared being targeted by Sunni insurgents and other Islamic insurgent groups because of his western ways.[9]
[5] CB 78
[6] at [7]-[13]
[7] at [14]-[16]
[8] [17]-[21]
[9] [22] -[27]
On 30 May 2018, the applicant attended an interview with the delegate.[10] The delegate asked the applicant about the fact that he had allegedly said in his arrival interview on 12 August 2013 that, "[i]n Al Basra yes I was safe".[11] In response to the delegate, the applicant said, "no way"[12] and he then later queried the quality of the interpretation.[13] The recording of the arrival interview provided by the Minister to pro bono counsel has been corrupted and it has not been possible to ascertain whether this critical answer was correctly translated. The delegate then incorrectly recorded in his decision that the applicant had not listened to the recording when the applicant had said he had[14] and did not refer to the interpretation query raised by the applicant.
[10] CB 100, 155.3
[11] CB 156.8; affidavit of Kathleen Anne Morris made on 2 September 2019 in proceeding NSD448/2019: arrival transcript page 35 line 694, delegate transcript page 12, line 450
[12] line 454
[13] line 486
[14] line 461, compare CB 157
On 10 August 2018, the delegate refused the visa on the basis that, among other things, the applicant had claimed he was safe in Basra and the delegate did not accept that any persons had been seeking to harm him there.[15]
[15] CB 157
By letter dated 16 August 2018, the applicant was notified that the refusal decision had been referred to the Authority.[16]
[16] CB 172
On 4 September 2018, the applicant caused an email to be sent from an address with the name "Dana Dana" to be sent to the Authority with his submissions and further evidence in relation to the review.[17] The submission from the applicant relevantly stated:
(a)in page 9 of the delegate’s decision, the delegate stated that he did not accept that the applicant was threatened by the locals of Tikrit in Basra. The submission purported to attach “evidence of [the applicant’s] friend who is currently living in Australia and his testimony could be he[ard] in court stating that [the applicant] was threatened and could get killed if he stayed living in Iraq, as well as there are many others who are currently living in Basra [who] would provide the same evidence” that the applicant is threatened by the locals of Tikrit and the result of staying in Basra at that time “will be the result of ending his life by the locals of Tikrit”;
(b)the applicant provided a signed “certificate of denounced” from his father and his tribe. He stated that it is very common to get denounced by the society and tribal culture in Iraq and especially Basra. The applicant was separated from his wife and children because he was in a relationship with an Australian woman who “put the effect of him to be Christian and forget about his wife and background culture”. The applicant did not care about “the outcomes to be denounced from the tribe and his parents” because he is living safely in Australia and he “will stay here in Australia with the Australian woman he loved, as a result [the applicant] would be killed if he returned to Basra”. The submission attached both the translated “denounced certificate” and the evidence of the Magistrates Court of the Australian Capital Territory to “indicate that there is a relationship between [the applicant] and the Australian woman”.
[17] CB 182 -192
However, the email from "Dana Dana" does not appear to have attached the statement referred to in the extract above. The witness statement is at CB 237.
The Authority handed down its decision on 3 December 2018, affirming the decision under review.[18]
[18] CB 198-215
The Authority made detailed factual findings and accepted some of the applicant's evidence. However, the Authority also rejected some of the applicant's evidence and ultimately concluded that his claims were not well founded. The Authority accepted that the applicant is a Shia Arab from Basra, Iraq and that his mother and a number of adult siblings continue to reside there.[19] The Authority also found at [13] that evidence in relation to a blast said to have injured the applicant's uncle during 2007, and a dispute resulting in the applicant being stabbed during 2009, was consistent and detailed. The Authority accepted that these incidents had occurred, and that the applicant's family had to relocate for a period because of them.
[19] CB 203 at [12]
The Authority accepted at [14], after considering documentary and other evidence, that the applicant had joined the Army during 2007 and worked predominantly in the administrative office of the Department of Provisions and Transportation. The Authority also accepted that the applicant attended a prison riot with other soldiers during 2012; that escaped prisoners subsequently targeted the army following this attack; and that the applicant's name made him identifiable as a Shia which in turn compounded the risk to him. The Authority considered it plausible that the applicant was injured during the 2012 riots but did not accept that the applicant was personally targeted afterwards. On the evidence before it, the Authority found that the applicant had held a predominantly administrative, and not senior, role in the Army.
The Authority considered evidence given by the applicant in his arrival interview about considering Basra safe after the riots, and evidence given by the applicant at later dates to the effect that he did not feel safe in Basra because he had learned that Sunnis from Tikrit were looking for him there.[20] The Authority accepted at [16] that the account given during the applicant's arrival interview, that he considered himself safe in Basra after the riots, was consistent with other facts, such as that he had seemingly not been targeted during the seven or so months he lived there. This evidence, the Authority found, was to be preferred over the applicant's later suggestion that he believed Sunnis from Tikrit were searching for him in Basra.
[20] CB 203-204
The Authority found that the applicant resigned from the Army rather than deserted from it.[21] This factual finding is central to one of the grounds of appeal in the Federal Court and is addressed in detail below.
[21] CB 205
The Authority found at [20] and [21] that claims in relation to a false accusation of theft from the Army and a large outstanding debt to the Iraqi government were unsupported, and did not accept them.
The Authority concluded at [22] that a letter purported to have been signed by the applicant's father and the chief of a tribe was not genuine. It also found a claim about monthly tribal fighting in Iraq caused by the applicant's estranged wife’s reluctance to return their children to his family in Iraq to be “far-fetched”, and claims about threats from his estranged wife’s family to be exaggerated.[22]
[22] CB 206-207 at [24]-[28]
The Authority was, however, prepared to accept generally, at [28], that:[23]
his ex-girlfriend may have given birth to his child… the applicant may not be a practising Muslim, may have Christian friends, drink alcohol, go to discos and have had girlfriends as this seems plausible given he has been in Australia for some five years.
[23] CB 207
For these reasons, the Authority was not satisfied that the applicant had a “well-founded fear of persecution” pursuant to s 5J of the Migration Act, and so did not meet the requirements of the definition of refugee in s 5H(1) or the criterion for a protection visa in s 36(2)(a).[24]
[24] CB 208-210
Federal Circuit Court proceedings
On 4 January 2019 the applicant applied for judicial review of the Authority’s decision in this Court under s 476 of the Migration Act.[25] On 7 February 2019, that application was dismissed by a registrar pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) on the basis of the applicant's non-appearance at a directions hearing. On 15 February 2019, the applicant's solicitors filed an application to set aside the orders dismissing the application in this Court under rule 16.05(2)(a) of the Federal Circuit Court Rules, together with an accompanying affidavit.[26]
[25] CB 216-225
[26] CB 226-232
Judgment on that application was delivered on 4 March 2019. In considering the matter, the primary judge set out the correct legal test for determining the applicant's application under rule 16.05(2)(a) of the Federal Circuit Court Rules, and identified that the central issue was whether there was any utility in setting aside the orders of 7 February 2019, and in that regard, whether the applicant had a reasonably arguable case of relevant error by the Authority. The primary judge was ultimately not satisfied that the reinstatement application should be granted, on the basis that it had not been shown that there would be any utility in setting aside the orders of 7 February 2019, and that it had not been shown that there was a reasonably arguable case of jurisdictional error by the Authority.[27]
[27] see AAV19 v Minister for Home Affairs & Anor [2019] FCCA 517 at [22]
Federal Court proceedings
On 22 March 2019, the applicant filed an application for an extension of time and leave to appeal against this Court’s decision. On 7 December 2019 the applicant apparently served a proposed Notice of Appeal dated the same.
On 10 March 2020, Murphy J granted the extension of time and leave to appeal and allowed the appeal.[28] His Honour set aside the orders of this Court made on 4 March 20219 and in lieu thereof, ordered that the orders of the registrar made on 7 February 2019 dismissing the application be set aside.
[28] AAV19 v Minister for Home Affairs [2020] FCA 287
The matter was remitted to this Court for rehearing.
THE CURRENT PROCEEDINGS
On 24 March 2020 I made the following orders by consent:
1.The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The "Court Bundle" filed and served on 2 September 2019 in proceedings NSD448/2019 be treated as the bundle of relevant documents (“the Court Book”) in these proceedings.
3. The First Respondent deliver two hard copies of the Court Book to the Federal Circuit Court of Australia Registry by 14 April 2020.
4. The Affidavit of Kathleen Anne Morris sworn 2 September 2019 and filed and served on 2 September 2019 in proceedings NSD448/2019 be treated as having been filed and served in these proceedings.
5. The submissions of the Applicant filed on 26 February 2020 in proceedings NSD448/2019 be treated as the submissions of the Applicant in these proceedings.
6. The draft notice of appeal annexed to the submissions of the Applicant filed on 26 February 2020 in proceedings NSD448/2019 be treated as an amended application for judicial review in these proceedings.
7. The submissions and list of authorities of the First Respondent filed on 17 December 2019 in proceedings NSD448/2019 be treated as the submissions and list of authorities of the First Respondent in these proceedings.
8. The application [be] listed for a final hearing on 21 September 2021 at 10:15am at 80 William Street Sydney before Judge Driver.
9. The Applicant file and serve any supplementary written legal submissions and list of authorities 14 days before the hearing.
10. The First Respondent file and serve any supplementary written legal submissions and list of authorities 7 days before the hearing.
11. The Applicant must file and serve a Notice of Change of Address every time there is any change in the Applicant's address.
12. The Applicant must serve upon the First Respondent, at the address identified by the First Respondent in the Notice of Address for Service (Clayton Utz, Level 15, 1 Bligh St, Sydney NSW 2000) any document filed by the Applicant.
13. Liberty to either party to apply to the Court for a listing for further directions. The other party must be given 3 days clear notice of the time, date and place of that listing.
14. Costs of today are costs in the proceedings.
It follows from the foregoing that there are four grounds of review advanced in this current proceeding:
The primary judge erred in holding that there was no reasonably arguable case of relevant error by the Second Respondent (IAA) as it is reasonably arguable that the IAA erred by:
(a)rejecting the [applicant’s] claim to have deserted from the Iraq army and instead finding, without evidence or intelligible justification, that it was more plausible that the [applicant] resigned from the army (at [19]);
(b)failing to consider the “new information” submitted by the [applicant] pursuant to section 473DD of the Migration Act 1958 (Cth) (Act) with respect to the corroboration of his claims by a new witness by misunderstanding the submission and only considering it by reference to the Local Court orders attached to the submission (Bundle page 192) when those orders were only being submitted, as expressly stated in the [applicant’s] submission, to “indicate that there is a relationship between the [applicant] and the Australian woman” and could not have been the evidence referred to (Bundle page 185.8, IAA at [7]);
(c)unreasonably failing to exercise its powers under section 473DC of the Act to obtain the obtain the relevant country information referred to in its reasons at [7] when it had determined that it would exercise the power under section 473DC of the Act to seek the new country information in its reasons at [10];
(d)construing the meaning of “exceptional circumstances” in section 473DD(a) of the Act by reason of its consideration that the routine country information it had obtained at [10] satisfied the section but the other new information sought to be adduced by the [applicant] did not.
Consistently with Order 2 made on 24 March 2020, at the trial I received as a court book the bundle of documents filed in the Federal Court appeal[29] and the affidavit of Kathleen Anne Morris made on 2 September 2019, to which is annexed a transcript of both the protection visa interview and the arrival and induction interview conducted with the applicant.
[29] pursuant to Order 2 of Murphy J made on 12 August 2019
The applicant was represented by pro bono counsel at the trial of this matter before me on 21 September 2021. The Court is grateful for the willingness of counsel to appear on that basis. The applicant and the Minister relied upon their written submissions made in the Federal Court proceeding and also made oral submissions through their counsel at the trial before me.
CONSIDERATION
Applicant’s contentions
Ground 1(a) – finding without intelligible justification
Ground 1 challenges the Authority’s rejection of the applicant’s claim to have deserted from the Army and its alternative finding that the applicant had resigned from the Army on the basis that this lacked any evident or intelligible justification. This is the type of error identified in Minister for Immigration and Citizenship v SZMDS.[30] That is, any evidence relied on by the Authority must be rationally and logically probative of the finding that it is said to support.[31]
[30] (2010) 240 CLR 611
[31] see also Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ)
At [19] of its decision, the Authority had held as follows:[32]
Given… the fact he was able to legally depart from Iraq without issue and the inconsistencies I not accept that he deserted the army. Based on the evidence before me, I consider it more plausible he resigned from the army after the prison riot.
[32] CB 205
However the applicant’s evidence was that:
(a)at the arrival interview in 2013, when responding to a question as to why he feared harm, he stated “because I left Iraq illegal. Because a person in the army cannot leave the country without getting permission from Ministry of Defence”[33] and later at that interview he explained that he had flown and did not have any problems at the airport;[34]
(b)in his written statement for the protection visa application in 2017, he further explained he was able to leave Iraq legally because he was still within his period of leave from the Army;[35] and
(c)at the protection visa interview in 2018 he explained that he had told the Army his son was ill (inferentially to extend the leave and enable him to fly out of Iraq) and it was only after he landed in Indonesia after having been in Malaysia that the Army realised he had deserted.[36]
[33] affidavit of Ms Morris, page 35 line 708
[34] affidavit of Ms Morris, page 47 line 1415
[35] CB 80 [19]
[36] affidavit of Ms Morris, page 14 line 586
The applicant contends that, while the telling of his story has no doubt been disjointed, it was not inconsistent. At all times the applicant had claimed that he feared harm because he deserted from the Army and the further details he provided at various points were not inconsistent with that claim and merely reflective of the inevitably disjointed process of a protection visa application. In any event, whether or not the Authority accepted the applicant’s claims, there was no probative evidence upon which the Authority could lawfully find that it was more plausible that he had resigned from the Army.
In particular, the applicant submits the fact that he had left Iraq legally from an airport was not capable of positively supporting a finding that the applicant had resigned from the Army as the mere fact of being able to leave Iraq legally was open to a multiplicity of equally speculative inferences: for instance the Army had not yet not notified the airports, there was an error in the system, or as the applicant claimed, he was recorded as still being on leave. [37]
[37] see eg Ashby v Slipper (2014) 219 FCR 322 at [70]–[73] and the cases cited therein about impermissible speculation where a multiplicity of inferences are open
Ground 1(b) – failure to have regard to critical corroborative evidence
Ground 1(b) concerns the Authority’s misunderstanding of the applicant’s submissions and intended further critical corroborative evidence. In particular, at [7], the Authority addressed this as follows:[38]
The submission states that it was mentioned in proceedings in the Magistrate court (referred to above) that Tikrit locals were targeting the applicant and that many locals in Basra could also attest to the fact that his life was in danger and also that it was common for people to be disowned by their tribe. The court document detailed above does not make reference to the applicant being targeted by Tikrit locals. No country information indicating it is common to be disowned by tribes has been provided in support. The new information lacks detail and is unsupported. I am not satisfied exceptional circumstances exist to justify its consideration.
[38] CB 202
The applicant contends that this was not what his submission said. On the contrary, the submission said that the applicant had “attached evidence of [the applicant’s] friend who is currently living in Australia and his testimony could be he[ard] in court stating that [the applicant] was threatened and could get killed if he stayed living in Iraq” (emphasis added). The submission was plainly not referring to the Court orders which had expressly only been attached to indicate the relationship between the applicant and an Australian woman and were obviously incapable of meeting the description in the submissions.
The proposed evidence was “clearly critical” to the applicant’s case on the review as it corroborated his claims and it was not considered by the Authority when it was determining whether to exercise its powers under s 473DD of the Migration Act.
A failure by the Authority to have regard to critical corroborative evidence or to misunderstand it constitutes error.[39]
[39] Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 at [71]–[75] per Robertson J; see also the Full Federal Court in Minister for Border Protection v SZSRS (2014) 309 ALR 67
Proposed Grounds 1(c) and 1(d) – failures with respect to country information
Grounds 1(c) and (d) concern the Authority’s “unreasonably differential” position with respect to obtaining new country information. On the one hand the Authority exercised its power under s 473DC of the Migration Act to obtain the 2018 DFAT[40] report on Iraq (DFAT report) and held that were “exceptional circumstances” to justify considering it,[41] and on the hand it refused or failed to consider obtaining the country information relevant to the applicant’s claims about tribal practices with respect to being disowned.[42]
[40] Department of Foreign Affairs and Trade
[41] at [10]
[42] at [7]
Two errors are said to arise from this differential treatment:
(a)an unreasonable refusal or failure to consider exercising its powers under s 473DC to obtain the country information relevant to the applicant’s tribal practice claims; and/or
(b)a misunderstanding of the meaning of “exceptional circumstances” in s 473DD when obtaining the routine updated DFAT report.
In relation to the first error, in DPI17 v Minister for Home Affairs[43] at [37], Griffiths and Steward JJ summarised the relevant principles as follows:
First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]).It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.
[43] (2019) 366 ALR 665
In this case, the Authority considered it necessary to obtain country information which had not been before the delegate and that there were “exceptional circumstances” justifying obtaining that further information. It also identified that there could be country information relevant to tribal customs and yet did not exercise its powers and “merely blamed the applicant” for not putting such information before it when it “clearly had vastly more resources” and was, in any event, planning to obtain further country information. Such a differential approach to obtaining new country information is said to be irrational and unreasonable and an arguable error.
In the alternative, the Authority is said to have erred in its approach to determining the existence of “exceptional circumstances” which would “justify considering the new information” under s 473DD(a) of the Migration Act.
The phrase “exceptional circumstances” means circumstances which are outside the ordinary course of events.[44] This meaning is consistent with the context and purpose of s 473DD of the Migration Act. The fast track review process envisages that all relevant material and claims should be provided to the Minister for an application for a protection visa is determined.[45] This indicates that the circumstances justifying the consideration of new information must not be regularly, routinely or normally encountered.
[44] BVZ16v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [40], [43]
[45] Migration Act, ss 473CB, 473DB(1) and see also the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [893], [903], [909], [919]–[920]
What amounts to “exceptional circumstances” is “inherently incapable of exhaustive statement” and the facts relevant to exceptional circumstances vary from case to case.[46] Nonetheless, consideration of exceptional circumstances requires consideration of all relevant matters raised by the applicant or evident from the nature of the new information.[47]
[46] Plaintiff M174/2016v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [30]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14]
[47] BVZ16 at [41]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [104]
In this case, the applicant contends that the Authority either failed to consider all relevant circumstances in deciding whether “exceptional circumstances” existed or adopted an inappropriately narrow understanding of this concept. The problem with the Authority’s approach is said to be indicated by its contrasting conclusions as to the existence or non-existence of “exceptional circumstances” in relation to the new DFAT information and its failure to obtain any other country information and rejection of the applicant’s new evidence.
In relation to the updated DFAT information, the Authority stated at [10] that it was satisfied there were “exceptional circumstances” to justify considering this new information. However, in arriving at this position, the Authority only identified that the new information was an update to a DFAT report which had been before the delegate. Updating of DFAT country information is said to be a regular or routine occurrence. The Authority did not consider what features of these regular updates gave rise to the exceptional circumstances justifying consideration of the information. However, in relation to the other new information the Authority simply stated at [7] that “I am not satisfied exceptional circumstances exist to justify its consideration” and did not even countenance obtaining other relevant country information.
Ultimately the Authority is said to have applied an unstated but illogical and inconsistent standard in assessing when to obtain country information and the existence of “exceptional circumstances”, which led to an irrational distinction being drawn between the two categories of country information that could not with reasonable diligence have been placed before the original decision maker.
Minister’s contentions
Ground 1(a) – finding without intelligible justification
In Ground 1(a) the applicant submits that the findings made by the Authority about the applicant having resigned from, rather than deserted from, the Army were irrational and illogical or reached without a probative basis. The applicant alleges the Authority committed an error of the kind discussed in SZMDS.
There is said to be no merit in this ground. The challenged finding is at [19] of the Authority’s decision:[48]
Given its late raising, the fact he was able to legally depart from Iraq without issue and the inconsistencies I do not accept he deserted the army. Based on the evidence before me, I consider it more plausible he resigned from the army after the prison riot.
[48] CB 205
The Minister submits that there was nothing illogical or unreasonable about this factual finding. It was based on evidence given by the applicant. The applicant gave evidence during his arrival interview that, after returning to the Army for a short period after the 2012 riot, he ultimately decided to leave the Army.[49] The applicant gave specific evidence about the difficulties he then faced finding alternate work: “… I left the job. In Al Basrah there is work but you need to have… connection with the government and we didn’t have connection”.[50]
[49] CB 12
[50] CB 12
Moreover, the mere fact that logical, rational or reasonable minds might differ in respect of the conclusions to be drawn from evidence is no basis for a determination that the conclusion preferred is irrational or unreasonable.[51]
[51] see eg SZMDS at 634-635 (Heydon J), 648 (Crennan and Bell JJ)
The Minister contends that the Authority’s disbelief of the applicant's subsequent claim to have only been on leave from the Army, in circumstances where this claim was inconsistent with the information given at his arrival interview, was a finding the Authority was entitled to make based on the evidence of the applicant.
The paragraphs that the applicant points to in Ashby v Slipper at [70]–[73], and the cases cited therein, merely indicate that findings should be based upon evidence, rather than conjecture. The Minister submits that the Authority’s findings in this case were based on evidence. The fact that multiple logical findings may flow from evidence does not render a finding illogical.[52]
[52] as the majority ultimately found was the case in SZMDS
Accordingly, there is said to be no merit in relation to particular (a) of Ground 1.
Ground 1(b) – failure to have regard to critical corroborative evidence
The applicant claims in particular (b) that a reference in his 4 September 2018 submission to “attached evidence of [the applicant’s] friend”[53] was in fact a reference to a statement by AS.[54]
[53] see CB 183
[54] presumably at CB 237, which was subsequently provided to the Federal Circuit Court as an annexure to an affidavit made by the applicant's solicitor: CB 233–237. The author’s name has been anonymised
The unsigned, undated statement was not before the Authority. However, the onus was on the applicant to ensure that all material in support of his claims was before the Authority.[55] Furthermore the applicant had already been granted sufficient opportunities to put on evidence, both before the delegate and the Authority.
[55] Migration Act, s 5AAA
Any failure by the Authority to have regard to evidence which was not before it, specifically, that referred to at [56] above, does not here amount to a jurisdictional error. As Robertson J stated in Minister for Immigration and Citizenship v SZRKT & Anor[56] at 130-131:
whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document… the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material, and second, the place of that material in the assessment of the appellant’s claims…
[56] (2013) 212 FCR 99
The Minister also relies upon Minister for Immigration and Border Protection v SZSRS,[57] and particularly the Full Federal Court’s comments at 74 and 77-80.
[57] (2014) 309 ALR 67
The undated statement does not provide a clear basis on which the applicant's claim to have felt threatened in Basra becomes more plausible: the Authority had detailed regard to the applicant's submission to that effect. In particular, the Authority addressed claims made by the applicant in regard to targeting from Tikrit locals at [15]-[18] of its factual findings.[58] The Authority stated at [17]:[59]
… the limitations of [the] arrival interview may give rise to a lack of detail or minor inconsistencies in an applicant’s evidence, I do not accept significant inconsistencies, or information contrary to the nub of his claim would be attributable to this. I also note the applicant was advised in the arrival interview that it was his opportunity to provide any reasons why he should not be removed from Australia and that if any of the information was different to that later provided it could raise doubts as to its reliability. I also found the applicant's evidence in the arrival in relation to other claims highly detailed and consistent.
[58] CB 203–204
[59] CB 204
The question of weight to be given to documentary evidence is a matter otherwise for the administrative decision maker.[60] There was no failure by the Authority to have regard to critical corroborative information.
[60] see Lee v for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]
There is said to be no merit in relation to particular (b) of Ground 1.
Ground 1(c) – failing to exercise power to obtain unspecified country information regarding tribes
The applicant claims in particular (c) that the Authority was unreasonable in not requesting new country information on the question of whether it is common to be disowned by tribes (as at [7],[61] the Authority noted that no such information had been provided) pursuant to its powers in s 473DC of the Migration Act. This ground of review was not advanced at first instance by the applicant.
[61] CB 202
Section 473DC(2) expressly provides that the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred appellant or by any other person, or in any other circumstances.” While there may be circumstances in which it is legally unreasonable to fail to consider exercising the discretion under s 473DC, regard must be had to the specific statutory scheme, including s 473DC(2), in assessing whether a failure is unreasonable in specific circumstances.[62]
[62] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45]-[53], per Thawley J
The Authority did have regard to a letter purportedly from the applicant's tribe but the Authority did not accept it as genuine.[63] The Authority noted that blood feuds typically arise in connection with the killing of tribal members[64] and considered specific alleged disputes regarding the applicant's family.[65]
[63] CB 206 at [22]
[64] CB 207 at [27]
[65] CB 207 at [28]
The applicant has not pointed to any specific information that the Authority might have obtained to support the claim he has sought to make. If the applicant was aware of any materials that may have supported his submission that it is common to be disowned by tribes, he ought to have put them before the Authority. These are not circumstances in which it was legally unreasonable to fail to consider exercising the discretion under s 473DC in relation to the issue of tribal disownment.
There is accordingly said to be no merit in relation to this new ground of review.
Ground 1(d) – determining that exceptional circumstances existed to justify considering the DFAT report
This particular is concerned with whether the Authority breached s 473DD of the Migration Act when deciding to obtain and consider the DFAT report. The applicant claims that no “exceptional circumstances” existed such as to satisfy s 473DD(a) of the Migration Act. This proposed ground of review was not advanced below by the applicant.
Section 473DD relevantly provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information …
In Plaintiff M174/2016 v Minister for Immigration and Border Protection,[66] the plurality noted at 229[30] that “[q]uite what will amount to exceptionable circumstances is inherently incapable of exhaustive statement.”
[66] (2018) 264 CLR 217
As the applicant notes in his submission, consideration of whether exceptional circumstances arise requires consideration of relevant matters raised by the applicant or evident from the nature of new information. The applicant alleges that the Authority provided no basis for requesting the DFAT report. This is not correct. The Authority noted that there are changing conditions in Iraq in relation to the treatment of Shias,[67] and this matter was central to its examination of whether the applicant had a well-founded fear of persecution.[68]
[67] CB 202 at [10]
[68] see particularly CB 208-210 at [27]-[32]
The inconsistency alleged by the applicant in relation to the Authority’s decision not to request the information described in relation to particular (c), and the finding that there were “exceptional circumstances” to obtain and consider the DFAT report, does not arise. These two matters are entirely unrelated. The Minister submits that the Authority did not commit any jurisdictional error in its application of the requirements of s 473DD to the “new information” in the DFAT report.
Resolution
Ground 1(a)
In the Federal Court appeal, Murphy J stated the following in relation to the first ground at [38]-[47]:
The Authority’s finding which is challenged under Ground 1(a) appears at [19] of its decision, where the Authority concluded:
... Given its late raising, the fact he was able to legally depart from Iraq without issue and the inconsistencies I do not accept he deserted the army.
The Minister argues that there is no merit in this proposed ground as there is nothing illogical or unreasonable about that factual finding. The Minister points to the fact that the arrival interview in the materials before the Authority stated that the applicant claimed that, after he was threatened in Tikrit:
I went back home and I left the job. In Al Basrah there is work ... but you need to have connection with the government and we didn’t have connection”.
The Minister construes the applicant as stating that after he returned to the Army for a short period after recovering from his injury he ultimately decided to leave the army, and gave specific evidence about the difficulties he then faced finding alternative work.
Moreover, the Minister contends that the mere fact that logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from evidence is no basis for determination that the conclusion preferred is irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[131] (Crennan and Bell JJ). The Minister argues that it was open to the Authority to disbelieve the applicant and make the finding that he had not deserted the Army and had instead resigned from it, when his claim to have been on leave from the Army when he left Iraq was inconsistent with the information he gave at his arrival interview.
I do not accept the Minister’s submissions and I consider this ground to be reasonably arguable. The applicant’s evidence was as follows:
(a)in his arrival interview in August 2013, when responding to a question as to why he feared harm he stated “because I left Iraq illegally. Because a person in the army cannot leave the country without getting permission from Ministry of Defence.” Later in the interview he explained that he had left Iraq by air and did not have any problems at the airport;
(b) in his written statement in June 2017, he further explained he was able to leave Iraq legally because he was still within his period of leave from the Army, and he explained that he did not get approval for discharge from the Army; and
(c) in the visa interview in May 2018 he explained that he told the Army that his son was ill and it was only after the applicant landed in Indonesia, after having been in Malaysia for a few days, that the Army realised he had deserted.
It is reasonably arguable that there is no significant inconsistency in the applicant’s account in this regard. At all times he claimed that he feared harm because he deserted from the Army and his further statements were not inconsistent with that. It is correct, as the Minister contends, that at question 32 of the arrival interview the applicant said he went back home to Basra and “left the job” and then briefly explained the difficulty he had in obtaining work in Basra. That answer was however immediately followed by question 33: “What do you think will happen to you if you return to your country of nationality (residence)? The applicant responded as follows:
If I were to go back I would be imprisoned. Why? Firstly because I was in the Army. Secondly because I left Iraq illegally. Because a person in the Army cannot leave the country without getting permission from the Ministry of Defence...
The Minister also sought to make something out of the fact that the Applicant did not state that he was placed on a “deflection list” in Malaysia until his visa interview, which was another “late raised” claim which justified the Authority’s adverse finding at [19]. I do not consider this to be a point of substance. The relevant exchange in the visa interview was as follows:
Department Officer: Okay. So when did your leave run out and you officially become absent without leave?
Applicant: Okay when I left Iraq I told them that my son is ill and I had to take him. I them he’s admitted in the hospital. Because if I told them I want to leave they wouldn’t let me leave the airport. So when I arrived Indonesia that’s when they became aware.
Department Officer: What did they do about it?
Applicant: They recorded me in the deflection list.
It is reasonably arguable that this does not justify a finding that the applicant’s account was not to be believed because, understood in the context of the whole interview, the applicant was just answering the question and providing more detail, and not attempting to embellish his story.
In my view it is reasonably arguable that:
(a) the Minister’s reading of the interview records is not a fair one and that there is no inconsistency of substance in the applicant’s account that he deserted from the Army;
(b) there is no basis in the evidence for the positive finding that the applicant in fact resigned from the Army. It is difficult to see how the Authority’s finding that the applicant left Iraq legally from an airport is capable of supporting a positive finding that he had resigned from the Army. The mere fact that the applicant had a passport and was able to leave Iraq legally was open to many speculative inferences including, for example, that the Army had not yet notified the airports, that there was some error in the system such that his departure went undetected, or as the applicant claimed, that he was recorded by the Army as being on leave: see Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [70]- [73] (Mansfield, Siopis and Gilmour JJ) and the cases there cited about impermissible speculation where a multiplicity of inferences are open; and
(c) on a fair reading of the Authority’s decision, its rejection of the applicant’s claim to have deserted the Army and its finding that the applicant instead resigned from the Army is a finding which no rational or logical decision-maker could reach on the same evidence: SZMDS at [130] (Crennan and Bell JJ).
The Minister then argues that the Authority’s erroneous finding at [19] is not material in the requisite sense. The Minister notes that the Authority said (at [29]):
The applicant claims to fear being harmed because he was an Iraqi soldier. I have accepted the applicant was in the Iraqi army. DFAT states that lower-level officials and office-based public servants face a low risk of violence in Iraq. Further while country information indicated Iraqi security forces were wounded or killed in northern and central Iraq in November 2017, it also indicated none were injured or killed in Basra. There is also no credible information before me to indicate former Iraqi soldiers are targeted. The applicant predominantly worked in an administrative role, was not high ranking, and it has been some six years since he last worked as a soldier and the applicant has not said he would not return to his home area in the south, where his mother and some of his adult siblings continue to reside. His brother who also worked in the army in the past now lives in Germany.
(Emphasis added and citations omitted.)
The Minister contends - based on the unchallenged findings of the Authority that the applicant was low ranking; that former Iraqi soldiers are not targeted; and that no Iraqi security officers were injured or killed in Basra in November 2017 - that the finding that the applicant did not desert the Army did not deprive the applicant of the realistic possibility of a successful outcome in his visa application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]- [31] (Kiefel CJ; Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [49] (Bell, Gageler and Keane JJ).
In my view it is reasonably arguable that the relevant error is material. The findings at [29] concern the risk to former Iraqi Army soldiers from non-State actors, not the risk of harm the applicant might face at the hands of Iraqi authorities as a deserter. They do not relate to the applicant’s claim that he was being targeted by Sunnis from Tikrit because he was a member of the Iraqi Army who was involved in the prison riot in Tikrit which led to many local people being killed and their houses damaged. The applicant’s claim that he will face a risk of serious or significant harm as a deserter is an important integer of his claim for protection, and it is reasonably arguable that the Tribunal’s failure to give that claim intelligible and rational consideration to the requisite level means he has been deprived of the realistic possibility of a different outcome.
I find that the first ground has been established. The essential difficulty lies in [19] of the Authority’s decision where the Authority stated:[69]
The applicant claims he left Iraq while on leave from the army and without permission and so deserted the army. In the arrival interview he said after being threatened in Tikrit he took his family and they went back home and he left the job. On his return as he could not get work his father sold the family home and they used the money for him, his wife, children and father to travel to Australia. He left Iraq on his genuine passport in May 2013 and travelled by plane to the United Arab Emirates (UAE), then to Malaysia and then onto Indonesia where his passport was taken from him by the people smugglers and he illegally travelled by boat for Australia, all of which I accept given its consistency and the detail provided. In his SHEV application he relevantly said, for the first time, that he returned home for a few months to recover from injury after the prison riot and then returned to the army in Tikrit and was harassed by local Sunni families. He obtained leave from the army by telling them his son was sick (he says he exaggerated this to obtain leave) and that when he left Iraq he was still on leave. In the SHEV interview he said he had to tell them his son was sick and he was taking him to hospital otherwise they would not have let him leave the airport and he said, for the first time, that in Malaysia he was placed on a "deflection list" however very little detail was provided about this and it is somewhat at odds with him having been able to pass through other airports without issue before the Malaysian airport and I do not accept it. Given its late raising, the fact he was able to legally depart from Iraq without issue and the inconsistencies I do not accept he deserted the army. Based on the evidence before me, I consider it more plausible he resigned from the army after the prison riot.
[69] CB 205
The Authority might have found itself not satisfied that a deserter from the Army could have left Iraq legally. However, the Authority went further and made a positive finding that the applicant resigned from the Army after the prison riot. If there is nothing to support that finding, then the Authority will have fallen into error.[70]
[70] see Ashby v Slipper at [70]
The applicant gave his reasons for leaving Iraq at his arrival interview, relevantly at CB 12. At his arrival interview,[71] the applicant stated that he left Iraq illegally because a person in the Army cannot leave the country without getting permission from the Ministry of Defence. Later in the interview the applicant stated that he flew to Abu Dhabi from Basra and then flew on to Malaysia.[72] At CB 80, the applicant stated that he had applied for leave on the basis of his son being sick and in hospital (which was at least exaggerated) and stopped attending the Army base. This was an additional period of leave following an extended period when he was injured in Tikrit. The applicant stated in his statement of claims that the authorities would not have been aware that he was intending to flee Iraq because he was still on leave (ostensibly due to his son’s illness) when he left the country.
[71] affidavit of Ms Morris, page 35
[72] affidavit of Ms Morris, page 47
In his protection visa interview with the delegate[73] the applicant contested the accuracy of information given at the arrivals interview concerning safety in Basra. He expressed his fear of being put in prison[74] should he return to Iraq and he repeats his evidence concerning the ruse involving the illness of his son.[75] He stated that he believed the authorities became aware he had fled when he reached Indonesia.
[73] affidavit of Ms Morris, page 12
[74] affidavit of Ms Morris, page 13
[75] affidavit of Ms Morris, page 14
Although there are some issues concerning the timeline leading up to the applicant’s departure from Iraq, he had advanced an essentially plausible account. That account could be believed or not, but there is nothing to support the Authority’s finding that the applicant resigned from the Army rather than fleeing as a deserter.
In making a finding without any evidential support, the Authority fell into error and the applicant should receive the relief he seeks.
Remaining grounds
It is not strictly necessary to deal with the remaining grounds, however, I prefer the Minister’s submissions in relation to those grounds. In relation to Ground 1(b), it is apparent that the applicant had made a submission with a supporting document missing and the Authority was entitled to find that the proffered new information was unsupported.[76] It is debatable whether any country information relating to being disowned by tribes had been provided in support which bears on the third ground. Although a RACS[77] submission makes a contention in relation to tribes and refers to country information[78] that information deals with the issue of tribes at a high degree of generality.
[76] at [7]
[77] Refugee Advice and Casework Service
[78] see CB 134 and footnote 36 and the information referred to by the Authority at [24] and [27] and footnote 4 at [27]
As to the fourth ground, the Authority was entitled to receive the most recent DFAT country report and, as I have found previously,[79] it should generally do so.
[79] BDI17 v Minister for Immigration [2018] FCCA 2162
CONCLUSION
I conclude that the applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will grant relief in the form of the writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 19 October 2021
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