AVR21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 923
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVR21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 923
File number(s): SYG 588 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 16 June 2025 Catchwords: MIGRATION – Administrative Appeals Tribunal – Prospective Marriage (Class TO) (Subclass 300) visa – whether the Tribunal’s reasoning was illogical, irrational or unreasonable – where there was inconsistencies in the applicant’s evidence to the Tribunal -adverse credibility findings made – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 ( Cth) ss 5J(1), 36
Migration Regulations 1994 (Cth) Schedule 2)
Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50
Minister for Immigration v Li (2013) 297 ALR 225
SZDGC v Minister for Immigration and Citizenship [2008] FCA 1683 (“SZDGC”)
AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227
WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 29 May 2025 Place: Parramatta C
ounsel for the Applicant:Mr WIlcox Solicitor for the Applicant: Ms Chong ( Ray Turner Immigration Lawyers) Counsel for the First Respondent: Mr Johnson Solicitor for the First Respondent: Ms Mcnamara (Sparke Helmore Lawyers) Solicitor for the Second Respondent: Submitting appearance, save as to costs
Table of Corrections 19 June 2025 Paragraphs 6, 33, 70, and 92 have been corrected to anonymise the details of the applicant’s family.
Paragraph 6 and 91 has been corrected to remove the applicant’s place of residence in the origin country.
ORDERS
SYG 588 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVR21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
16 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 June 2025JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of the (then) Administrative Appeals Tribunal’s (“the Tribunal”) decision dated 12 March 2021 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse to grant the applicant a protection (Class XA) visa (“the visa”) under s 65 of the Migration Act 1958 (Cth) (“the Act”).
For the reasons outlined below, the application should be dismissed.
BACKGROUND
The applicant is a citizen of Iraq, who arrived in Australia as the holder of a Prospective Marriage (Class TO) (Subclass 300) visa.
Shortly after arriving in Australia, the applicant’s relationship with his fiancée broke down. On 25 February 2016, he applied for a Protection (Class XA) (Subclass 866) visa.
The applicant claimed to fear harm if returned to Iraq on the basis of having operated a barber shop where he gave customers “emo” haircuts, which in July 2015 attracted attention from the Asaeb Ahl Al Haq group, who forced their way into the applicant’s barber shop and threatened to kill him and his brother, M.
M was an officer in the anti-terrorism squad in Iraq and was heavily involved in fighting against militia groups, such as Asaeb Ahl Al Haq. M also worked in the applicant’s barber shop. The applicant claimed that M was shot at in 2016 and fled the country.
The applicant also feared being killed by members of his ex-fiancée’s tribe, the Al Hamoudi tribe.
On 5 April 2017, the delegate refused to grant the applicant the visa.
On 7 April 2017, the applicant applied to the Tribunal for review of the delegate’s decision.
On 12 March 2021, the Tribunal affirmed the decision under review.
THE TRIBUNAL’S DECISION
The dispositive issue before the Tribunal was whether the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
At [3]-[7], the Tribunal set out the criteria for a protection visa as prescribed under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal had regard to Ministerial Direction No. 84 and took into account the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs, as well the relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”).
The Tribunal also summarised the information before it namely, the submissions to the department at [26] to [38] of the Tribunal’s decision, the delegate’s decision at [38] to [41] of the Tribunal’s decision, and the applicant’s submissions to the Tribunal at the hearing at [42] to [76] of the Tribunal’s decision.
Submissions to the Tribunal
On 17 February 2021, the applicant provided a written statement of claims in which he said that his initial statement had inadequately explained his claims because his first representative had advised and warned him not to provide a full account of his circumstances.
The applicant claimed that he was a Shia Muslim and that he faced problems because of his work as a barber, who provided western style haircuts. He claimed to have received threats due to his employment, which were also linked to his brother, from the Mahdi army.
The applicant claimed he was detained in July 2015 by the Mahdi army, for giving unacceptable haircuts and was threatened with physical harm if he continued to do so. They also claimed his brother, an officer of the counter terrorism service, arrested innocent people and unless they were released, they would target him. Shortly after, at 8pm on 23 July 2015, his shop was targeted in a drive-by shooting.
His brother advised the applicant that he could not release the arrested persons and warned him to be careful. The Tribunal put to the applicant that his brother seemed to have the power to arrest people, and the applicant could have gotten him involved in respect of the drive-by shooting, the applicant responded that his brother could do nothing because he was concerned about the safety of his family.
The applicant also claimed that his brother was shot in January 2016, evidencing the security situation in Iraq. He also claimed his brother was shot by men from Asaib Ahl al-Haq.
The applicant provided statements by Mr AH and AA who corroborated the applicant’s claims about his issues in Iraq.
The Tribunal put to the applicant its concerns that the drive-by shooting was not mentioned in his initial testimony, prior to his most recent submissions. The applicant stated that the representative assisting him at the time advised him not to mention this. The Tribunal noted its difficulty accepting that any agent would have omitted such a detail.
In response, the applicant said that he had not mentioned ‘all of the details of his situation in his first statement’. The Tribunal expressed concern about his failure to mention that people had fired shots at his shop shortly before leaving Iraq. The applicant maintained that he was telling the truth.
The Tribunal questioned the applicant regarding why he did not previously mention that men had come to his shop to make demands in relation to M’s work, to which the applicant replied saying that he had consulted many solicitors, but none of them had asked him the right questions until his current representative. The Tribunal noted that the applicant had the opportunity to provide evidence during his interview with the delegate, but had still failed to mention this incident.
The applicant provided evidence that certain haircuts caused problems in Iraq, however the Tribunal advised that whilst it was aware that this had sometimes been a problem, but not at the time he claimed.
Whilst the Tribunal noted that the applicant had provided documents, which he said were police reports regarding the attack on his shop, the Tribunal advised him that it was not difficult to obtain fraudulent documents in Iraq, and that anyone with a computer and a printer could have produced them. The applicant maintained that they were genuine.
The Tribunal asked the applicant about his fears on return to Iraq. He said that that he feared that he would be punished for refusing to obey the people who had threatened him in the past and that he would be harmed because he would continue to work as a barber and give western haircuts. The applicant also feared harm because of his association with his brother.
When the applicant was asked who he feared, he said that he feared many groups. The applicant said that he would try to avoid them, but he did not know exactly which group or family had targeted him in the past.
The Tribunal advised the applicant that, while it was aware that there were outbreaks of violence from time to time, it was the Tribunal’s understanding that D Q was one of the more secure areas in Iraq. The applicant replied saying that nothing had really changed since his departure and added that the militias had been legalised, that they had seats in Parliament, and they were stronger than before. The applicant said that many people had been killed or wounded in 2019, and the Iraqi government did not know who was responsible. Widespread protests by armed people continued throughout the country.
The applicant's representative submitted that if the people arrested by M had been released, they could well pose a risk to the applicant. The applicant’s representative also submitted that the extreme measures taken by M to protect his family home indicated that there was still a risk for his family and suggested that the applicant would be at risk of harm if he returned to Iraq.
The Tribunal noted that the applicant had said that he was secular and did not practise his religion. The Tribunal advised him that it was the Tribunal’s understanding that significant numbers of Iraqi citizens did not actively practise their religion. The applicant replied that people who wanted to live a life free from religion were at risk of being killed. The Tribunal noted that it appeared that the applicant had not experienced any problems in the past because of his failure to practise his religion. It asked why he feared that he would face problems for that reason if he returned to Iraq. The applicant said that he did not fear harm in Iraq because of his failure to practise his religion. The applicant’s representative submitted that the applicant’s fears related to the problems he had faced for transgressing Islamic norms and providing unacceptable haircuts.
The Tribunal heard evidence by Mr AA and Mr AH.
Mr AH repeated the evidence in his written statement and added that he had driven past the applicant's barber shop, and it was still closed. The Tribunal advised Mr AH that it had some doubts about the applicant's claims in part because he had not mentioned anything about militias shooting at his shop until very recently, which also caused me to wonder if his evidence regarding the information from his mother was true. Mr AH maintained his evidence was true.
Mr AA also repeated the claims in his written statement. The Tribunal advised him that it had similar doubts as those which it expressed to Mr AH, and subsequently asked if he was sure that M had told him about these events when he was in Iraq. Mr AA maintained that his evidence was true. Mr AA also said that he knew the agent who first assisted the applicant and was aware that he was not competent.
Findings of Fact
At [77], the Tribunal found that the applicant was not an entirely credible witness for the following reasons.
In relation to the claims that the applicant was forced at gunpoint to attend a meeting with militia members in July 2015 and that armed men fired shots at his business in July 2015 forcing him to close it, while the Tribunal acknowledged that it is not uncommon for honest applicants to omit some details of their case in early submissions, it did not accept that the applicant would have failed to mention such significant events if they had occurred.
At [80], the Tribunal did not accept that even a representative of limited competence would advise an applicant against providing a reasonably complete and truthful account of his claims. The Tribunal noted that in any event, the applicant had the opportunity to mention these matters during his interview with the delegate but failed to do so.
The Tribunal at [81], did not accept that the applicant was taken to a meeting with members of a militia at gunpoint in 2015 or that shots were fired at his shop shortly afterward. The Tribunal found that these claims were concocted to enhance his claim for protection.
At [85], in light of the problems set out above, and the applicant’s willingness to provide false evidence, the Tribunal was not satisfied that he provided ‘emo’ or other unacceptable haircuts to clients at any time or that he was threatened by members of a militia or anyone else for providing these haircuts.
The Tribunal at [87], was not satisfied that the applicant or any other member of his family was threatened or harmed by Asaib Ahl al-Haq or any other militia in Iraq because M was involved in the arrest of militia members or because he worked for an anti-terrorism squad.
At [88], the Tribunal found the applicant's evidence regarding the shooting of his brother M2 in January 2016 confusing and unconvincing.
At [89], the Tribunal found that there was no credible evidence before it which suggested that M2 would have been of interest to Asaib Ahl al-Haq, because the applicant provided unacceptable haircuts or because M had arrested some of their members or for any reason linked to the applicant. The Tribunal noted that violent acts of this kind sometimes occur in Iraq and accepted that M2 was a victim of a random act of violence in 2016, and that he relocated to Baghdad sometime later.
At [90], the Tribunal was not satisfied that the applicant was threatened by members of a militia or anyone else prior to leaving Iraq because of his work as a barber or because of his association with his brother M. The Tribunal believed that the applicant concocted these claims in order to obtain a protection visa and remain in Australia.
In relation to the evidence given by Mr AA and Mr AH, the Tribunal placed little weight on their evidence, given that they were close personal friends of the applicant, and that neither of them were in Iraq during the time the applicant claims to be threatened. In the Tribunals opinion, they were seeking to corroborate claims which the Tribunal found lacking credibility based largely on information provided by the applicant himself or a member of his family.
Whilst the Tribunal at [92], accepted that the applicant is a non-practicing Shia Muslim from N, that he worked as a barber for a number of years before coming to Australia, that his brother M works for an anti-terrorism squad, and that his brother M2 was shot in 2016, it did not accept that the applicant was of adverse interest to a militia group or anyone else for any reason at the time he left Iraq in 2015.
Consideration of the Applicant’s Claims
At [93], the Tribunal was not satisfied that the applicant faced a real chance of experiencing serious or significant harm for any reason associated with his work as a barber or for engaging in behaviour viewed as un-Islamic by militias or other extremist groups if he returned to Iraq. The Tribunal noted that there was no evidence before it that suggested that someone would be at risk of serious or significant harm in Iraq merely because they did not attend mosque or actively practise religion.
At [95], the Tribunal was not satisfied that the applicant feared serious or significant harm because he is a secular or non-practising Muslim or that there was a real chance that he would suffer serious or significant harm on return to Iraq for that reason.
At [96], the Tribunal was not satisfied that the applicant faced a real chance of suffering serious or significant harm on return to Iraq because of his relationship to M. The Tribunal noted that no evidence had been provided or located which suggested that family members of those involved in anti-terrorism faced a real chance of suffering serious harm because of this in N.
Whilst at [99], the Tribunal accepted that the power and influence of many Shia militias had increased in Iraq since the formation of the PMU and the defeat of ISIS, and that that the demonstrations in N have been so violent that many protestors have been killed and many more injured or arrested, the Tribunal was not satisfied the increased power of the militias, the violence surrounding the demonstrations, or the general situation in N meant that the applicant would face a real chance or experiencing serious or significant harm if he returned to Iraq.
Further, at [101], whilst the Tribunal acknowledged that there will likely continue to be conflict between militias, protestors and the government in N, after considering all the relevant evidence it was not satisfied that there was a real chance that the applicant would suffer serious or significant harm because of this if he returned to Iraq now or in the reasonably foreseeable future.
At [102], after considering the applicant’s claims singly and cumulatively, the Tribunal was not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s 5J(1) of the Act. Therefore, was not satisfied that applicant had a well-founded fear of persecution now or in the reasonably foreseeable future.
At [103], the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there was a real risk that he will suffer significant harm.
At [104], the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Act. The Tribunal went on to consider the alternative criterion in s 36(2)(aa) of the Act, with the Tribunal concluding that it was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal noted at [106], that there was no suggestion that the Applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Tribunal concluded that Applicant did not satisfy the criterion in s 36(2) of the Act.
As such, at [107], the Tribunal affirmed the decision not to grant the applicant a protection visa.
GROUNDS OF JUDICIAL REVIEW
The applicant advances four grounds of judicial review contained in an Amended Application filed on 8 May 2025. They are as follows (less particulars):
1. The Tribunal’s rejection of the applicant’s claim that in July 2015 he was forced at gunpoint to attend a meeting with militia members and that armed men fired shots at his business (the July 2015 claims) was unreasonable, illogical or irrational.
2. Not pressed.
3. The Tribunal’s rejection of key parts of the applicant’s claim on the basis of asserted inconsistencies was unreasonable, illogical or irrational.
4. The Tribunal’s rejection of the corroborative evidence of Mr AA and Mr AH was unreasonable, illogical , or irrational.
At the hearing on 29 May 2025 the applicant did not press ground two nor particular 3 of ground 4.
THE APPLICANT’S SUBMISSIONS
Ground One
Ground one relates to the Tribunal’s factual findings in relation to the July 2015 claims.
The only reason given by the Tribunal as to why it found that the applicant had ‘concocted’ the claims in relation to July 2015 was that the applicant had not raised these claims until after the delegate had refused his application [78].
In doing so, the Tribunal failed to give proper consideration to the documents that the applicant had submitted in support of the July 2015 claims. Instead, the Tribunal reasoned that because the documents were in support of a claim lacking in credibility and given that fraudulent documents and ‘genuine documents obtained by fraudulent means’ were readily available in Iraq, the documents provided by the applicant should be given little weight.
It is well established that failing to consider corroborative evidence on the basis that an applicant lacks credibility ordinarily amounts to a jurisdictional error: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 (“WAIJ”).
The applicant distinguished the current case from SZDGC v Minister for Immigration and Citizenship [2008] FCA 1683 (“SZDGC”). SZDGC at [45] is authority for those ‘rare’ cases where ‘the well has been poisoned beyond redemption’ such that the Tribunal may treat corroborative evidence as being of no weight without giving it further consideration. The current case is not one of those rare cases. Rather, the Tribunal was presented with the orthodox situation of an applicant neglecting to mention a detail of their claim in an earlier statement. While this may have rationally affected the assessment of the applicant’s claims, it does not ‘poison the well’ such that the Tribunal was not required to assess the corroborative documents.
The applicant placed reliance on WAIJ at [30], where Lee and Moore JJ stated:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented.
The Tribunal’s assertion that it would be easy to obtain fraudulent documents does not cure this error, just as it did not cure the error in WAIJ at [12]. The assertion only compounded the Tribunal’s irrational failure to properly consider the documents, and that it was axiomatic that just because some documents may be fraudulent, it doesn’t automatically follow that remaining documents were.
The Tribunal’s findings in respect of the applicant’s ‘concoction’ of the July 2015 claims infected the Tribunal’s assessment of the applicant’s other claims, which is clearly a material error and amounts to jurisdictional error.
Ground Three
Ground three asserts that in rejecting the haircuts claim, the M claim, and the M2 claim, the Tribunal employed reasoning which was based on various inconsistencies.
The inconsistencies in respect of the haircuts claim were evident at [84], where the tribunal stated that:
The applicant's evidence regarding the threats he received because of his work as a barber was confused and unconvincing. For example, he initially claimed that he was first threated by the Mahdi Army and later by Asaib Ahl al-Haq, but during the hearing he said that he did not know which militia had threatened him. In addition, at the hearing he said that he had obeyed the instructions issued in April 2014 forbidding barbers from giving certain kinds of haircuts, but later in the hearing said that he had continued to give these haircuts until the shop closed in July 2015.
On any fair reading of the transcript these ‘inconsistencies’ were either extremely minor, or were not inconsistencies at all. In relation to the applicant’s statement that he did not know which militia had threatened him, the relevant exchange was the following (Transcript, A 199-200):
A It’s not just one group, terrorist group, there’s so many of them and if I could tell ... (01:30:51) you which one of them is targeting me I’ll definitely avoid them but I don’t know who exactly target me in the past. Yeah, if we knew which group or which family want to harm us we would avoid them, of course. There’s - such things ... (01:31:17) be solved in Iraq.
Q I hesitate to say this but I will. You said they came to your shop and they took you to their committee and it was the Asep Elhaq [sic - Asaib Ahl al-Haq] - excuse my pronunciation - so they were the ones you said that threatened you. So you do know who threatened you so now I’m very confused.
AIt’s just Asep Elhaq is a big organisation, they have many small groups and the people who came to us they didn’t identify themselves, they just said they’re with Asep Elhaq. They didn’t tell us their names, we don’t know who they are
In relation to obeying the instructions issued in April 2024, the Tribunal misrepresented the applicant’s evidence entirely. What he said was that ‘we have to follow the instructions. And we had to put up a sign’ (A112) and a short time later, the applicant said ‘so they gave us instructions not to do these haircuts but we did them, not as many as – not many haircuts, just very…’ (A 121).
In respect of the M claim, the Tribunal noted at [86], that the applicant had initially claimed he was threatened by Asaib Ahl al-Haq, but later said he did not know who had threatened him. This appears to be a reference to the exchange extracted at paragraph 36 above, which is to be classified as either an extremely minor inconsistency or not an inconsistency at all.
At [88], the Tribunal outlined the inconsistencies in respect of the M2 claim as the following:
In his initial statement he said that M2 had been shot by members of the Asaib Ahl al-Haq and he feared that he too would be targeted by Asaib Ahl al-Haq if he returned to Iraq. In the statement provided in February 2021he said that the attack on [M] was the result of general violence, but also speculated that it might have been linked to threats against his family. At the hearing he said that M2 was shot by unidentified men in a car about ten minutes from his home. There are also some small, but in my view telling differences, in the applicant's evidence regarding M2's movements after July 2015. In his initial statement he said that M2 went into hiding after being shot. He told the delegate that M2 had gone to live with an uncle outside the city before he left Iraq and later moved to Baghdad to be near his in-laws.
Each of these inconsistencies were minor. The Tribunal did not articulate how these inconsistencies bear upon the applicant’s credibility, and that by simply setting out inconsistencies without explaining how they impact upon an applicant’s credibility amounts to a jurisdictional error: Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53 at [180].
Ground Four
Ground four relates to the Tribunal rejecting the evidence of two witnesses, Mr AH and Mr AA, who the applicant called to give evidence at the Tribunal hearing.
The applicant claims that the evidence of Mr AH corroborated the applicant’s 2015 militia claim and was based on conversations that Mr AH had with the applicant’s mother and other community members.
The applicant also claims that the evidence of Mr AA corroborated the applicant's claims about his brother M, and was based on a visit that Mr AA had made to M.
The applicant noted that the reasoning employed by the Tribunal in rejecting the evidence of the applicant’s two witnesses was outlined at [91], and is as follows:
I have also considered the evidence from Mr AA and Mr AH. However, they are close personal friends of the applicant, not disinterested parties. Neither of them was in Iraq at the time the applicant claims to have been threatened and they are seeking to corroborate claims which I have found lacking credibility based largely on information provided by the applicant himself or a member of his family. I have given little weight to this evidence.
This reasoning was irrational. The Tribunal has repeated the error from Ground 1, that the Tribunal has once again failed to consider corroborative evidence on the basis that it had already found the claim to be lacking in credibility. The applicant repeated the submissions in respect of ground one.
The applicant submits that by failing to properly consider the corroborative evidence of Mr AA and Mr AH, the Tribunal reasoned irrationally, and that the error is material, as this evidence was corroborative of central parts of the applicant’s claim.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground One
The first respondent submits that the applicants first ground of judicial review is misconceived.
The Court will not lightly infer that the Tribunal has engaged in illogical reasoning: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135].
In order to succeed on an illogicality ground, the applicant must demonstrate “extreme illogicality” on the part of the Tribunal: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].
The applicant asserts that the “only reason given for this finding [of concoction] is that the applicant had not raised these claims until after the delegate had refused his application”. This assertion is incorrect. The Tribunal at [79]-[90] explained several reasons for its concerns with the applicant’s evidence. Credibility findings are not linear, and it was apparent that the Tribunal’s concerns with aspects of the applicant’s evidence cumulatively supported its conclusion that the applicant had concocted the claims to have been threatened by members of a militia or anyone else prior to leaving Iraq because of his work as a barber or because of his association with his brother M.
The applicant accepted at paragraph 30 of his submissions that an applicant neglecting to mention a detail of their claim in an earlier statement may rationally affect the assessment of the applicant’s claims.
In relation to the approach the Tribunal must take to purportedly corroborative material, the Tribunal did not err as the applicant contends. Some care must be taken in describing the ostensibly independent material the applicant presented to the Tribunal to assist his case as “corroborative”. As per the Full Court in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (“SZNSP”) at [35], material presented by the very person whose credibility in doubt is not independent of the person.
Whilst it was open to the Tribunal to assess the applicant’s fresh claims on their merits, before turning to address the corroborative material, that does not mean the Tribunal was entitled to ignore the material that sought to corroborate the claim: SZNSP at [36]. However, the Tribunal did not ignore the information the applicant presented in the form of police reports regarding the claimed attack on the applicant’s barber shop in July 2015. There is a difference between rejecting information, and failing to consider it entirely. Nothing said by the Full Court in WAIJ is to the contrary.
Ground Three
In the third ground the applicant challenges the Tribunal’s decision on the basis that it failed to articulate the link between inconsistencies and the applicant’s credibility, by reference to the findings at [84] and [88]. No error is made out in this ground.
In the context of fact-finding, especially credibility findings, the case of ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [39] explained how a decision-makers use of the adjective “inconsistencies” in a decision can “mask the need for deeper analysis”. The Full Court stated at [44] that “simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach”. Reliance was placed on AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227"; [2018] FCAFC 133 (“AVQ15”) at [23] to assert that a decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility, but that it was important that the process be conducted fairly and reasonably: Further, in AVQ15 at [27], the Full Court, in addressing the need for caution in decision-makers using the label “inconsistency” where it might not be apposite, said:
… adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
Whether the Tribunal’s adverse conclusions about the credibility of the applicant’s claims crossed the line and amounted to the Tribunal make unreasonable findings, or failing constructively to exercise its jurisdiction, is a question of evaluation and degree. The Tribunal was permitted to assess the credibility of the applicant’s claims by reference to the coherence and consistency of his oral evidence at the Tribunal, and with some (reasonable) expectation that the applicant would be able to recall the central events around which his protection claims were based. This was not a case where the Tribunal’s expectations of consistency were unreasonably high, nor did the Tribunal impugn the applicant’s evidence on the basis of slight or minor differences in the presentation of his claims. Rather, the Tribunal identified a number of discernible differences in the applicant’s evidence which gave rise to a concern about the credibility of the evidence.
In relation to the Tribunal’s findings at [84], as the Tribunal observed at the hearing, the applicant first claimed that he was first threatened by the Mahdi Army and later by Asaib Ahl al-Haq. However during the hearing stated he did not know which militia had threatened him. Further, the applicant gave conflicting evidence about whether he followed their instructions. These were not peripheral or minor details in a broader narrative, but rather they were critical and simple elements of the applicant’s account on which basis he claimed to fear harm. The Tribunal was not comparing accounts given across time where one might expect memory or the ability to provide a coherent story to be factors affecting consistency, here, the applicant was unable to give a consistent account during the Tribunal hearing.
In relation to the Tribunal’s findings at [88], while these noted inconsistencies did arise by reference to accounts given at different points in time, the Tribunal identified the significance of the differences and weighed them accordingly. This was within the Tribunal’s jurisdiction as a finder of fact. In fact, contrary to cases such as Kaur v Minister for Immigration and Border Protection (2019) 269 FCR 464; [2019] FCAFC 53, which the applicant cites (AS [45]), the Tribunal in the current case did explain why those inconsistencies were of concern, being that it gave the applicant’s evidence the quality of being confused and unconvincing.
Ground Four
In this ground the applicant contends that the Tribunal’s findings in respect of the evidence of Mr AA and Mr AH were unreasonable, illogical or irrational.
At [51]-[52], the Tribunal described Mr AA and Mr AH and their written evidence, in the following terms:
51. Mr AH said that he had known the applicant since they were in primary school together. He travelled to Iraq to visit his family in August 2018, while he was there his mother and other community members had confirmed to him that the applicant's family had moved to an unknown location due to threats from militias. They also told him that the applicant's barber shop had been subjected to gunfire by militias and his brother [M] had been shot and wounded.
52. Mr AA stated that he had known the applicant since 2017. He said that the applicant had told him about the problems he had faced in Iraq. He visited [M] at his family home during a visit to Iraq in 2018 and observed that it was guarded. He said that [M] was cautious about people knowing his whereabouts. He also said that the applicant had told him that his brothers in Iraq had been threatened because of their stance on militias.
At [75]-[76], the Tribunal summarised the oral evidence of Mr AH and Mr AA at the hearing in the following terms
75. Mr AH repeated the evidence in his written statement and added that he had driven past the applicant's barber shop and it was still closed. I advised Mr AH that I had some doubts about the applicant's claims in part because he had not mentioned anything about militias shooting at his shop until very recently, which also caused me to wonder if his evidence regarding the information from his mother was true. He maintained his evidence was true.
76. Mr AA also repeated the claims in his written statement. I advised him that I had doubts about the claims which the applicant had made, in particular in relation to the attack on his shop which had not been mentioned in his earlier submissions and asked if he was sure that [M] had told him about these events when he was in Iraq. He maintained that his evidence was true. He also said that he knew the agent who first assisted the applicant and was aware that he was not competent.
The Tribunal placed no weight on the purportedly corroborative evidence of the two witnesses, reasoning that neither was a “disinterested part[y]”. Further, that neither of them was in Iraq at the time the applicant claims to have been threatened. The witnesses were seeking to corroborate claims that the Tribunal found lacking in credibility “based largely on information provided by the applicant himself or a member of his family”: [91].
While the applicant challenges that reasoning on the basis of a lack of logic, there was nothing illogical in the Tribunal’s reasoning. Contrary to the applicant’s submissions, and as addressed above, it was not outside of the bounds of reasonable or rational reasoning for a decision-maker first to consider and form views about an applicant’s claim before turning to consider any evidence that might (if accepted) corroborate that claim.
CONSIDERATION
Ground One
Ground one is a claim that the rejection of the applicant’s July 2015 claim that he was forced to attend a meeting at gunpoint and that armed men fired shots into his barber’s shop was (legally) unreasonable, illogical or irrational.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28], or where a decision has been made that lacks an “evident and intelligible justification”; Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
(…) Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
In order to succeed on illogicality, the applicant must demonstrate “extreme illogicality’ on the part of the Tribunal: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].
The particulars of this ground impugn the rejection of the documents submitted in support of the claim on the basis they lacked credibility for the reason that that fraudulent documents and genuine documents obtained by fraudulent methods are commonly available in Iraq. It was submitted that just because some documents may be fraudulent, it does not mean these documents were fraudulent.
At [77] – [92] the Tribunal set out the reasons for its concerns as to aspects of the applicant’s evidence. For example, at [78] Tribunal noted the applicant did not mention the claims that he was forced at gunpoint to attend a meeting with militia members in July 2015 and that shots were fired into his business the same time until after his application was refused by the delegate the Tribunal then goes on to say whilst is not uncommon for honest applicants to omit some details Tribunal did not accept the applicant failed to mention such a significant event if they had occurred.
In the Court’s view, this was an entirely logical and rational basis upon which to conclude that the applicant’s claims were lacking in credit. The Tribunal then at [79] noted it had can suited the police reports. These were provided in relation to a claim about which the applicant lacked credibility. In circumstances where country information states that fraudulent documents and genuine documents obtained by fraudulent means are reportedly commonly and cheaply available, the Court is not satisfied there was anything illogical irrational or legally unreasonable in giving these applicants little weight. The Tribunal did not ignore the cooperative material, it gave it a genuine consideration but simply rejected for reasons that were open to it on the evidence that was before it and for the reasons it gave. Ground one has no merit.
Ground Three
Ground three is a claim that the rejection of key parts of the applicant’s claims on the basis of asserted inconsistencies was unreasonable illogical or irrational. The applicant claims that the rejection of the haircuts claim at [84] threats due to the work of his brother M and the applicant’s claim that the shooting of his other brother, M2 were based on inconsistencies found by the Tribunal that were not in fact an inconsistency or a minor inconsistency.
It is submitted that simply setting out these inconsistencies without explaining how they impact on the applicant’s credibility amounts jurisdictional error.
It is trite to state that simply finding an inconsistency or inconsistencies in the applicant’s evidence does not of itself provide a logical or rational basis for the rejection of an applicant’s claims. Having said that, the Court is satisfied the Tribunal is permitted to assess the credibility of the applicant’s claims, by reference to the incoherence and inconsistency of his oral evidence at the Tribunal as well as the evidence that he has given previously, combined with the timing that any additional claims or additional evidence which supports those claims is provided.
A Tribunal is reasonably entitled to review with additional scrutiny, any claims or evidence which is said to support either new or existing claims which are made or provided after the initial claim is rejected by delegate. This is particularly the case when an applicant is represented by an agent, who would be aware of the need to provide as much information as possible in support of the initial application.
The Court accepts the respondent’s submission that the Tribunal identified a number of discernible differences in the applicant’s evidence which gave rise to a legitimate concern about the credibility of that evidence. These include the applicant first stated he was threatened by the Madhi Army, then later by Asaib Ahl al-Haq, during the hearing stated he did not know which militia threatened him. This was not a minor inconsistency. It was a matter the Tribunal was entitled to take into account when considering the overall credibility of the applicant’s claims.
The Court accepts the respondent’s submission that the inconsistencies found by the Tribunal at [88] were also not of a minor nature. In his initial statement the applicant said that M2 had been shot by members of Asaib Ahl al- Haq, however in the statement provided in February 21 he said the attack on M2 had been a result of general violence. In his initial statement, he said that M2 went into hiding after being shot however he told the delegate that M2 that initially gone to live with an uncle outside the city before he left Iraq and later moved to Baghdad to be near his in-laws.
The Court does not accept the submission that these were minor inconsistencies. They were matters where one might normally expect a person to be able to give a consistent and logical account, given the gravity of the issue being discussed, being the identity of the persons who shot at M2.
The Court is satisfied the Tribunal was entitled to take these matters into account, as the finder of fact, in assessing the overall credibility of the applicant’s claims. There is nothing illogical, irrational or legally unreasonable in the manner in which the Tribunal went about its task of fact-finding, noting the requirement for either extreme illogicality in the very high bar for finding legal unreasonableness. Ground three has no merit.
Ground Four
Ground four is a further claim of legal unreasonableness, irrationality or illogicality in relation to the rejection of the evidence of the two witnesses the applicant called to give evidence at the hearing.
The particulars claim the Tribunal failed to give genuine consideration to the evidence of both witnesses. The Court does not accept this assertion.
Firstly, the Tribunal set out in some detail the evidence of both witnesses, both at the hearing and their written evidence. In these circumstances, it is difficult to see how the Tribunal did not give that evidence genuine consideration.
The Tribunal found at [91] that the evidence given by the two witnesses was based largely on information provided by the applicant himself or a member of his family. That is, the witnesses were not giving first-hand evidence, rather, the evidence that they gave the best described as being of a hearsay nature. Further, the Tribunal found that these witnesses were not disinterested third parties but were friends of the applicant and his family.
In these circumstances, the Tribunal was entitled to find that it could place little weight on the evidence. The Court is satisfied there was nothing inappropriate in the manner in which the Tribunal went about first considering the claim, before turning to any evidence that might, (if accepted) corroborate that claim. Ground four has no merit.
DETERMINATION
As none of the grounds of judicial review pressured hearing at any merit, the application must be dismissed with costs.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 19 June 2025
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