Ayj17 v Minister for Immigration

[2018] FCCA 2227

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2227

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority should have exercised its power under section 473DC of the Migration Act 1958 (Cth) to give the applicant an opportunity to comment on certain information – whether the Immigration Assessment Authority overlooked the relevance and significance of an English translation of a purported death certificate – whether the Immigration Assessment Authority’s consideration of the applicant’s arrival interview was perverse – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 65, 463DC, 473BC, 473CA, 473CB, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 474

Migration Regulations 1994 (Cth), reg.2.01, sch.1

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967)

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481

MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Minister for Immigration and Citizenship v (2013) 249 CLR 332

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Applicant: AYJ17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number:   SYG 659 of 2017

Judgment of: Judge Emmett

Hearing date: 24 July 2018

Date of Last Submission: 24 July 2018

Delivered at: Sydney

Delivered on: 16 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Ben Zipser

Solicitors for the Applicant: Stamford Law Firm

Counsel for the Respondents: Ms Kim Pham

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 659 of 2017

AYJ17

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 31 January 2017 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 12 October 2016 refusing the applicant a Temporary Protection (Class XD) (Subclass 785) visa (“TPV”).

2. The applicant is a citizen of Iraq and of Sunni Muslim faith and Arab ethnicity, who fears harm from Shia militant groups including the Medhi Army, the Badr Organisation, and the Al-Dawa political party in Iraq.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a Protection Visa, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.

Background

1. The applicant arrived in Australia in November 2012 as an Unauthorised Maritime Arrival, having travelled to Australia by boat from Indonesia.

2. On 10 December 2015, the applicant lodged an application for a TPV with the Department of Immigration and Border Protection (“the Department”).

3. On 12 October 2016, the Delegate refused the applicant’s application for a TPV.

4. On 18 October 2016, the Delegate’s decision refusing the applicant a TPV was referred to the Authority.

5. On 31 January 2017, the Authority handed down its decision affirming the decision of the Delegate not to grant a TPV.

6. On 7 March 2017, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a TPV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a) a statement that:

    (i) sets out the findings of fact made by the person who made the decision; and

    (ii) refers to the evidence on which those findings were based; and

    (iii) gives the reasons for the decision;

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d) the following details:

    (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment 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 applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    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; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s application for a Protection Visa

1. The applicant provided a statement in support of his TPV application in which he stated:

   a)He was born in Nasiriyah, Dhi Qar province, Iraq.

   b)He is a practicing Sunni Muslim and of Arab ethnicity

   c)In 2004, he was appointed as a police officer of the Suk Alshyoukh Police Directorate. His main duties included guarding trains and patrolling road checkpoints. He was also involved in combat operations to arrest militia members or persons wanted by the central Iraqi government or the local provincial council in Dhi Qar province.

   d)On one occasion the Police Force Directorate in Suk Alshyoukh was attacked by militias. A police captain and some other police force members were killed. The applicant escaped.

   e)The applicant was also involved in arresting people who smuggle oil using oil tanks. These people are primarily from Shia militias. Therefore the applicant’s work in the police force in the south of Iraq posed a great risk to his life, especially because the applicant lacked the tribal or religious protection that other police officers have.

   f)The majority of the police force was Shia Muslim. The applicant was in the minority as a Sunni Muslim. The police force was initially infiltrated by members of Shia militias.

   g)In 2006 sectarian violence between Sunni and Shia Muslims escalated in Iraq. Many of the applicant’s relatives and friends were killed.

   h)In around December 2010 or January 2011, the applicant started receiving anonymous threatening phone calls from different numbers. The callers threatened to kill the applicant and to rape his sisters because he was Sunni Muslim and worked for the police. Initially the applicant did not take the threats seriously. He continued to work as a police officer.

   i)On 25 February 2011 the applicant’s brother borrowed the applicant’s car. When the applicant’s brother started the engine, the car exploded. It was an attempt to assassinate the applicant. The applicant’s brother died.

   j)Following this attack, the applicant and his family moved 60km away to the outskirts of Nasiriyah, where his mother had family. The applicant’s family advised him that it was unsafe for him to remain there as he could easily be located through the Shia militia intelligence network.

   k)On about 19 March 2011 the applicant travelled to Tikrit in Al Alam province because he was unknown there and because it was a border town from which he could leave. In Tikrit the applicant made arrangements to flee Iraq. The applicant obtained a passport and a temporary visa to enter Syria.

   l)On about 21 April 2011 the applicant left Iraq for Syria. He found a job, but civil war broke out soon after and it became very dangerous.

   m)The applicant’s father made arrangements for the applicant to leave Syria.

   n)On about 1 August 2012 the applicant fled Syria, travelling to Indonesia via the United Arab Emirates and Malaysia, before boarding a boat heading for Australia. The boat was intercepted by the Australian navy on about 5 September 2012 and the applicant arrived on Christmas Island a few days later.

   o)The applicant fears severe physical mistreatment, torture and/or being killed if he returns to Iraq. The applicant fears the harm from various Shia militia groups including the Mehdi Army, the Bader Militia and the Al-Daiwa Party. The applicant believes that he will be harmed or mistreated if he returns to Iraq because of his Sunni religion and membership of the particular social group “Iraqi police Force”.

   p)The Iraqi authorities are unable to protect the applicant. The Iraqi government is unable to protect the people or themselves. There is no security whatsoever in Iraq.

The Delegate’s decision

1. The applicant attended an interview with the Delegate, during which he provided further details relating to his claims that were broadly consistent with his visa application.

2. After considering the applicant’s claims and statements made at the Protection visa interview, the Delegate accepted the following as facts:

   a)The applicant is a Sunni Muslim from Thi Qar governorate in Iraq.

   b)The applicant was employed as a police officer in Thi Qar governorate between 2004 and 2011 and as a necessary part of employment, the applicant was involved in police operations linked to the illegal activity of Shia militia groups.

   c)Two of the applicant’s distant relatives were killed whilst serving in the police force.

   d)The applicant was subject to threatening phone calls in relation to being a Sunni police officer. These calls commenced in December 2010 or January 2011.

   e)The police station at which the applicant worked was attacked by a militia group (exact date unknown) and a fellow officer was killed during the attack.

   f)The applicant’s car was fitted with a bomb that exploded in February 2011.

   g)The applicant’s brother was killed in the car explosion.

   h)The applicant left his home and made arrangements to leave Iraq, initially settling in Syria before the civil war compelled him to leave. He then travelled to Australia.

3. After considering a range of country information, however, the Delegate did not accept that Sunnis were being tarted in southern Iraq, including Thi Qar governorate, and found that a Sunni Muslim, in general, would not face a real chance of harm if returned to Thi Qar governorate. The Delegate therefore did not find that the applicant faces a real chance of persecution or serious harm based on his religious beliefs.

4. On consideration of the applicant’s claims and the low level or absence of threats or harassment against the applicant from 2004 to late 2010, the Delegate found that the car bombing was the result of the applicant’s work as a police officer. The Delegate noted that at the time of the incident the job of police officer was a dangerous one, particularly for a Sunni Muslim operating in a majority Shia area.

5. However, the Delegate noted that over five years had passed since the incident and no reports could be located indicating that former police officers are targeted for violence by militia groups or others. The Delegate referred to country information which indicates that violent incidents in Thi Qar governorate are rare. The Delegate also noted country information that indicates that militia groups in Iraq have, in recent years, been co-opted into the public security sector, working with police and security groups rather than targeting them. For these reasons the Delegate concluded that the applicant did not face a real chance of serious harm in the reasonably foreseeable future due to being a former police officer.

1. Although not explicitly stated by the applicant, the Delegate considered the threat posed to the applicant as a returnee to Iraq from a western country or as a failed asylum seeker. The Delegate referred to country information, namely a Department of Foreign Affairs and Trade (“DFAT”) report from 2015, in making a finding that returnees do not face significant problems in Iraq by reason of being returnees.

2. The Delegate was not satisfied that the applicant was a refugee as defined in s.5H(1) of the Act or a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.

3. Having found that there was not a real risk of the applicant suffering significant harm on return to Iraq for the reasons of his Sunni religion, his previous employment as a police officer or being a returnee from a western country/failed asylum seeker, the Delegate also considered whether the general security situation in Thi Qar would result in the applicant having a real risk of suffering harm in accordance with s.36(2)(aa) of the Act. The Delegate considered a number of country information reports on the area and gave weight to reports that the security situation in Thi Qar province remained relatively stable; that southern Iraq, including Thi Qar, was safe for “residents on the whole”; and that levels of violence in the southern provinces are much lower than in central Iraq.

4. On 12 October 2016, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Authority’s review and decision

1. On 18 October 2016, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.

2. The applicant’s registered migration agent provided written submissions in support of his review. The Authority did not consider the submissions to constitute new information and had regard to them.

3. The Authority accepted the applicant’s claims to have worked as a police officer from approximately 2004 to early 2011, and that his role involved guarding transport, patrolling checkpoints and preventing oil smuggling. In view of country information regarding the involvement of Shia militia groups in crime, the Authority accepted that the applicant arrested some people associated with Shia militia groups during his time in the police force. The Authority further accepted that the applicant was involved, on at least one occasion, in an operation targeting Shia militia and that his police station was attacked at least once by a Shia militia group or groups, and that a police officer or officers were killed in the attack.

4. The Authority accepted that two of the applicant’s relatives died as a result of sectarian violence at some point between 2006 and 2009. The Authority did not accept, in view of the omission of their profession from the applicant’s statement accompanying his TPV application, that they were also police officers.

5. In respect of the applicant’s account of his brother’s death, the Authority noted that the Delegate had found the applicant’s evidence on this matter to have remained consistent. The Authority noted, however, that the Delegate did not refer to the evidence provided by the applicant at his Arrival interview, in which he did not mention his brother’s death at all. The Authority found that the applicant’s omission of any reference to his brother’s death in the Arrival interview was difficult to reconcile with the later claim made in the Entry interview, TPV application and TPV interview that his brother’s death was the event that prompted his departure from Iraq.

6. The Authority noted a number of additional concerns regarding the applicant’s account of his brother’s death, including a death certificate provided purporting to relate to the applicant’s brother’s death and an English translation of the document. The Authority noted that the English translation indicates that the cause of death was “explosion”. The Authority also noted that the fields for the doctor’s name and record number are blank, indicating that it may not be a complete translation as there are more blank fields and text on the untranslated purported Iraqi death certificate than are accounted for in the translation.

7. At the TPV interview, the interpreter indicated to the Delegate that the relevant blank fields referred to the doctor’s name, location and signature, the source of the body, the date and time of the autopsy, the cause of death, and the coroner’s stamp. The Authority also noted that the Delegate had put to the applicant information before him which suggested that the blue copy of the death certificate, a copy of which had been provided to the Department, was usually retained by the issuing authority. The applicant responded that he was not involved in obtaining the certificate and could not comment.

8. The Authority noted that the Delegate found that, having regard to administrative lapses, confusion about and inconsistent application of procedures on the part of those issuing the certificate, and to the “honest and consistent answers provided by the applicant at interview”, ultimately, accepted that the document was probably genuine.

9. The Authority, however, having not agreed that the applicant had provided consistent evidence in relation to his brother’s death, formed a different view. The Delegate considered the information omitted from the purported death certificate to be matters more serious than can be explained by differences in procedures or administrative lapses on the part of the issuing authority. The Authority placed no weight on the document. The Authority further noted that while it is possible that no death certificate was issued and the fraudulent document was obtained by the applicant’s relatives to provide to the applicant in support of his TPV application, it considered it more likely that the applicant arranged to obtain a fraudulent death certificate to support his claims for protection.

10. The Authority did not accept that the applicant’s brother was killed by an explosive device planted on the applicant’s car, as claimed. The Authority found that it was not able to make a finding on the evidence before it as to whether the applicant’s brother was killed or died from another cause.

11. Accordingly, the Authority did not accept that the applicant left Iraq because of his brother’s death.

12. The Authority did accept, on the basis of the consistency of the applicant’s claims in this respect, that the applicant received threatening phone calls and messages as claimed for a period of about six months beginning around December 2010 or January 2011.

13. The Authority referred to country information before it, particularly DFAT country reports, in respect of the security situation in the south of Iraq, the activities of Shia militias, and the risk posed to Iraqi police or security forces due to their association with the Iraqi government. The Authority found that, aside from the applicant’s claims, there was no evidence before it to suggest that Shia militia groups have targeted current or former police officers because of their position in the force. The Authority was satisfied that the applicant did not intend, nor would wish to return, to his former role in the police force.

14. The Authority noted that country information suggested that Sunnis in the south of Iraq have complained of unfavourable treatment in relation to accessing government employment, and that Sunni representation in the Government and official institutions is decreasing. The Authority was not satisfied, however, that this discrimination amounts to persecution, including a threat to the capacity of the applicant to subsist. The Authority noted that the applicant’s three brothers are self-employed and that the applicant has not claimed that he or members of his family have had any difficulties finding employment.

15. Accordingly, the Authority was not satisfied that there was a real chance of harm to the applicant at the hands of armed Shia or Sunni groups, or any other group or person, in Dhi Qar province on the basis of his past employment as a police officer, now or in the reasonably foreseeable future.

16. The Authority then referred to a range of country information regarding Shia militias in Iraq.

17. The Authority noted that in assessing the chance of harm to the applicant as a Sunni in the Shia dominated province of Dhi Qar at the hands of Shia militia, it had carefully considered the applicant’s individual circumstances, including his status as a former police officer and a young Sunni man, and the range of country information before it. The Authority accepted that it may be possible the applicant would be harmed by Shia militia on the basis of his Sunni faith in Dhi Qar, but found that chance of such harm to be remote and less than the real chance of persecution required to meet s.5J(1)(b) of the Act.

18. The Authority noted that the applicant had not claimed to hear harm from armed Sunni groups, but noted that there was information before it indicating that some Sunnis in Iraq are targeted by such groups. The Authority was not satisfied that the information before it indicated that there is a real chance that the applicant would be harmed by armed Sunni groups in Dhi Qar province upon return, including on the basis that he is a former police officer, or as a result of the security situation in Dhi Qar governorate.

19. The Authority then considered country information in relation to discrimination in Iraq on the basis of Sunni Muslim religion. The Authority accepted that the applicant may have experienced some discrimination in the past, and may in the future experience discriminatory treatment, as a result of his religion. However the Authority did not accept that such discrimination, including possible difficulty obtaining employment on return to Iraq, would amount either to serious harm or to a denial of the applicant’s capacity to earn a livelihood of any kind, or to subsist.  The Authority considered that the applicant would be able to find employment of some kind, as his brothers have done.

20. The Authority then considered whether the applicant would be harmed by the Iraqi government or any other group or person if he returned to Iraq having unsuccessfully sought protection in Australia and having lived in Australia for more than four years. The Authority referred to country information on the treatment of returning failed asylum seekers and concluded that there was not a real chance now, or in the reasonably foreseeable future, that the applicant would be harmed on this basis.

21. The Authority also considered whether any combination of the applicant’s circumstances as a Sunni man returning to Dhi Qar as an unsuccessful asylum seeker after living in Australia for four years would combine to expose the applicant to a real chance of serious harm in Dhi Qar governorate, and concluded that they did not.

22. Having considered the applicant’s claims, the Authority found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Iraq that the applicant did not have a well-founded fear of persecution in Iraq and for this reason the applicant was not a person to whom Australia owed protection obligations.

23. The Authority also considered whether the applicant met the alternative criteria for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Authority noted that while it had found that the applicant may suffer discriminatory treatment in the future in the form of discriminatory comments about his religion in the course of future employment and difficulties in accessing employment, such discrimination did not reach the threshold of significant harm set out in ss.36(2A) and 5(1) of the Act; nor cause any suffering that would constitute cruel or inhuman treatment as defined in s.5(1) of the Act.

24. Accordingly, the Authority found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Iraq, there is a real risk that the applicant would suffer significant harm.

25. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Authority affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Ben Zipser, of counsel.

2. Mr Zipser confirmed that the applicant relied on the grounds contained in the Amended Application filed on 13 July 2018 as follows:

   “1. The applicant claimed that in February 2011 his brother Jamal was killed when a bomb fitted to the applicant's car exploded, the applicant was the target of the attack and, immediately following the event, the applicant left Iraq in fear of being harmed. The Minister's delegate accepted these claims. In contrast, the IAA rejected these claims. The Immigration Assessment Authority ("the IAA"), in reversing the finding by the Minister's delegate in the applicant's favour concerning the death of the applicant's brother in the course of targeting the applicant, without exercising its power in s 473DC to give the applicant an opportunity to comment, involved conduct by the IAA which was legally unreasonable.

   2. The applicant provided to the Department a death certificate written in Arabic in respect of this brother, and an English translation of the document in Arabic prepared by a NAATI translator based in Sydney. The IAA at [21] found it more likely than not "that the applicant arranged to obtain a fraudulent death certificate to support his claims for protection". The IAA, in the course of making this finding, overlooked the relevance and significance of the English translation of the death certificate. This was a jurisdictional error.

   3. A principal reason the IAA rejected the applicant's claim concerning the death of his brother was because the applicant did not mention the claim at the "Arrival interview" on 4 September 2012. In light of the role of the arrival interview, this finding was perverse in a manner which constituted jurisdictional error.

   4. The IAA found at [9] that the applicant “arrested some people associated with Shia militia groups during his time in the police force”. The IAA overlooked taking into account this aspect of the applicant’s background when assessing whether he faced a real chance of serious harm from Shia militia. This was a jurisdictional error.”

3. Reliance on Ground 4 was withdrawn.

4. Mr Zipser submitted that Grounds 1, 2 and 3 are inextricably linked for the following reasons:

   a)The applicant claimed that in February 2011 his brother was killed when a bomb fitted to the applicant’s car exploded. The Delegate accepted that claim. The Authority rejected that claim.

   b)The claim was a significant and material claim. The applicant contends that in failing to give him an opportunity to comment on the Authority’s adverse finding, the Authority acted unreasonably.

   c)The reason why the Authority did not accept the applicant’s claim that his brother had been killed in a car explosion was because it found the death certificate in respect of the brother to be a fraudulent document and upon which the Authority placed no weight.

   d)Part of the reason that the Authority found the document to be fraudulent was because of omissions from the purported death certificate:

   “including the omission of the name and signature of a doctor, and the cause of death, to be matters that are more serious than can be explained by differences in procedures or administrative lapses on the part of the issuing authority.”

   e)The Authority found that a genuine certificate would not be issued without that “basic and important information”. Those concerns, coupled with the country information before the Authority about the prevalence of fraudulent documents in Iraq, led the Authority to place no weight on the death certificate.

   f)The applicant contends that an English translation of the death certificate provided at the same time stated that the cause of death was “explosion” and that the Authority had overlooked the relevance and significance of the English translation of the death certificate, which did provide the cause of death.

   g)A further concern for the Authority was that the applicant did not make mention of his brother’s death at the Arrival interview conducted on 20 September 2012. The applicant first raised the claim that his brother was killed when a bomb placed in the applicant’s car exploded at the Entry interview. The Authority noted that the Delegate had not referred to the evidence provided by the applicant at the Arrival interview and had found that the applicant’s evidence regarding his brother’s death to have been consistent.

   h)The Authority found that the applicant’s omission of any reference to the brother’s death at the Arrival interview difficult to reconcile with the applicant’s later claim made at the Entry interview, TPV application and TPV interview. The Authority found this difficulty was particularly so, given the applicant’s claims that it was that event that prompted his departure from Iraq because the explosive device was intended to kill him.

5. Mr Zipser read an affidavit of Bianca Louise Aboaal, affirmed 18 July 2018, which annexed a partial transcript of the interview between the Delegate and the applicant on 23 September 2016, in relation to the death certificate. Inter alia, the transcript made clear that the interpreter interpreted for the Delegate, and at the Delegate’s request, the omissions in relation to fields in respect of any Autopsy. The interpreter appeared to give evidence that the reason for death and the signature of the doctor were omitted from that autopsy field.

6. Ground 2 asserts that the Authority overlooked the relevance and significance of the English translation of the purported death certificate.

7. The applicant contends that in the English translation, which was accepted by the Authority, the cause of death was identified as “explosion” and that therefore the Tribunal did not give proper intellectual consideration to that information, in circumstances where it rejected the death certificate because of the omission of the name of the doctor “and the cause of death.”

8. As stated above, the Authority placed no weight on the purported death certificate.

9. In considering whether the applicant should have been given the opportunity to comment on the Authority’s finding in relation to the death certificate in circumstances where that finding departed from that of the Delegate, the partial transcript provided by the applicant makes clear that the applicant had every opportunity to say whatever he wished about the death certificate. The applicant had the opportunity to provide a full English translation of the death certificate. The English translation provided does not make clear precisely what parts of the death certificate were translated and which were not. The applicant had every opportunity to do so.

10. I do not accept the applicant’s contention that the Authority overlooked the relevance and significance of the English translation of the death certificate. The Authority referred specifically to it. In particular, the Authority noted that the translation provided that the cause of death was “explosion” but that the doctor’s name and record number were blank. The Authority stated that the translation provided by the applicant may not be a complete translation of the document as there were more blank fields and texts on the untranslated purported death certificate than were accounted for in the translation. The Authority then noted that the Delegate asked the interpreter to undertake a partial sight translation of the blank fields. The Authority noted that the interpreter indicated that the fields for the doctor’s name, location and signature, the source of the body, the date and time of the autopsy, the cause of death found by the doctor and the coroner’s stamp were all blank.

1. There is no evidence before me that during the Delegate’s hearing and following the interpreter’s translation that there was any request by the applicant or his migration agent to further clarify the Authority’s concerns about the death certificate. In the circumstances, in my view, the Authority did consider the relevance and significance of the English translation of the death certificate. The applicant had every opportunity to address the Delegate’s obvious concerns about the blank fields in the death certificate and chose not to explore that issue further.

2. Accordingly, Ground 2 is not made out.

3. Ground 1 asserts that the Authority should have exercised its power under s.473DC of the Act to give the applicant an opportunity to comment on its rejection of the applicant’s evidence about the death of his brother in circumstances where the Delegate had accepted those claims.

4. Ground 3 asserts that the Authority’s use of the applicant’s information provided at the Arrival interview was perverse in a manner constituting jurisdictional error.

5. The case was conducted by Mr Zipser on the basis that the Authority’s ultimate decision was legally unreasonable, for the reasons discussed below.

6. The Authority stated that it had significant concerns regarding the applicant’s evidence as it related to his brother’s death. The Authority stated as follows:

   “22. I have significant concerns regarding the applicant's evidence as it relates to his brother's death. Had his brother's death been the trigger for his departure from Iraq, and had the explosive device been intended to kill the applicant as claimed, I consider that the applicant would have mentioned his brother's death in the arrival interview. As discussed, I place no weight on the purported death certificate. Having regard to the evidence before me, I do not accept that the applicant's brother was killed by an explosive device placed on his car by Shi militia that was intended to kill the applicant. On the limited evidence before me, I am not able to make a finding as to whether the applicant's brother was killed or died from any other cause.”

7. The Authority did not accept that the applicant left Iraq because of his brother’s death. The Authority found that it was more likely that the applicant had arranged to obtain a fraudulent death certificate in respect of his brother to support his claims for protection.

8. In relation to the applicant’s claim that he left Iraq as a result of his brother’s death, the Authority stated as follows:

   “17. In the arrival interview conducted on 20 September 2012 the applicant advised that he left Iraq because he was a police officer in Iraq and was threatened by religious groups. He did not mention his brother's death. In the entry interview conducted on 13 November 2012, the applicant advised that he left Iraq because he was a Sunni police officer in a Shia-majority area and received death threats, and his brother was killed by a bomb that was attached to the car usually driven by the applicant and was intended to kill the applicant. The applicant also made the claim regarding brother's death in his TPV application and in his TPV interview. He characterised this event as the catalyst for his departure from Iraq, explaining that he made preparations to leave Iraq immediately after his brother's death.

   18. The delegate did not refer to the evidence provided by the applicant in the arrival interview and concluded that the applicant's evidence regarding his brother's death had been consistent. I find the applicant's omission of any reference to his brother's death in the arrival interview difficult to reconcile with the later claim made in the entry interview, TPV application and TPV interview that his brother's death was the event that prompted his departure from Iraq, particularly given that the applicant claims that the explosive device was intended to kill him. I have a number of other concerns in relation to the applicant's claims regarding his brother's death.”

9. I do have a concern about the fact that the Authority appeared to place such weight on the failure of the applicant to mention the brother’s death at his Arrival interview; and that, coupled with its findings in relation to the fraudulent death certificate, the Authority rejected the applicant’s claim that he left Iraq because his brother had been killed in an explosion meant for the applicant.

10. I accept that Part 7AA of the Act contemplates that the Authority will evaluate for itself material considered by the Delegate and is not required to notify the applicant that it is considering taking a different and adverse view of the material considered by the Delegate (see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72]).

11. However, s.473DC of the Act provides that the Authority may get any documents or information that was not before the Minister and the Authority considers may be relevant; and may invite a person orally or in writing to give new information in writing or at an interview conducted in person or in person or in any other way. Section 473DC(2) of the Act states that the Authority does not have a duty to get, request or accept any new information where the Authority is requested to do so by a referred applicant or by any other person or in any other circumstances.

12. The Authority’s statutory power in s.463DC of the Act must be exercised reasonably. As stated by the Full Court of the Federal Court in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) at [82]:

    “82.Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”

13. The first respondent submitted that the Authority is not required to consider the exercise of the discretionary power in s.473DC of the Act where the Authority is reassessing the same material which the Delegate had considered but in respect of which it reached a different conclusion. The first respondent also referred to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [17] (Gageler, Keane and Nettle JJ) that when conducting a review “the IAA when conducting a review … is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it.”

14. However, the first respondent acknowledged that there may be limited circumstances in which it is legally unreasonable for the Authority not to consider the exercise of discretionary power in s.473DC of the Act. The example given by the first respondent is where the Authority is required to consider an issue that had not been considered by the Delegate which depends on the particular circumstances of the applicant and that the Authority knows that the applicant is likely to have information on the particular circumstances relevant to that question. In support, the first respondent referred to CRY16.

15. The Authority in the case before this Court noted that the Delegate had found that the applicant had given consistent evidence.

16. However, the Authority found that because the information provided by the applicant at the Arrival interview did not make mention of his brother’s death, that was sufficient reason for the Authority to reject the applicant’s claim that his brother had been killed in the way claimed and that that was the reason the applicant left Iraq. Plainly, that was a critical claim going to the heart of whether the applicant had a genuine fear of persecution and whether the fear was well founded. The Delegate had accepted those claims made by the applicant. However, the Delegate found that, based on country information before it, the applicant’s fears were not well founded.

17. When one looks at the Arrival interview (a copy of which was in the bundle of relevant documents filed on 13 March 2017, and marked Exhibit 1A) which went for 50 minutes, it is directed to answering pre-framed questions about biodata and travel. Many of the questions are related to the applicant’s papers and how the applicant managed to arrive in Australia.

18. The introduction to the Arrival interview states as follows:

    “Introduction to client

    This is the first opportunity for you to provide information regarding your circumstances. We encourage you to be as honest and accurate with the information as you can be, Information provided by you will need to be re-confirmed at a later time, Please also consider what supporting documents or evidence you have (or have access to) that may support the information you provide.”

19. The only question that would have given rise to and opportunity for the applicant to state his claims was, “Why did you leave your country of nationality (country of residence)?” There were then three lines in the box to allow the applicant to answer that question. It was confirmed to me at the hearing by counsel for the first respondent that that box is not capable of expansion. The applicant used 2 of the 3 lines with the following answer, “I was an officer with police in Iraq and I was threatened by religious groups.”

20. It is quite clear that the Arrival interview is not intended to be a fulsome account of the applicant’s claims.

21. The Entry interview, on the other hand, which went for just over one and a half hours is plainly directed to the substance of the applicant’s claims and reasons for seeking asylum. It also has a question “Why did you leave your country of nationality (country of residence)?” The space for answering appears to be limited and the applicant stated as follows:

    “I was an officer with the police In Iraq and I was threatened by religious groups.

    I left Iraq because where I was as a police office was majority Shia. I received a lot of calls and threats for over 6 months and I don';t know who there were from. We were cautious but one day my brother was killed in an explosion my whole family moved to another area. He was targeted and killed on 25/02/2012 and a few weeks later we left. We did the religious area on the 7th day and I left on the 19th March 2011. I believe my brother was targeted because of me. He took my car to buy breakfast and the car exploded, it had booby traps and exploded. The calls were religious sentences (threats) I think I was targeted because I am Sunni in a Shia dominated area.

    I left Syria because of what is happening at the moment. The war.”

    (Errors in original)

22. At the beginning of the Entry interview, under the heading “Important Information”, the applicant is told the interview would be recorded and that it is his opportunity to provide any reasons why he should not be removed from Australia. It also states that, “You should understand that if the information you give at any future interview is different what from you tell me now, this could raise doubt about the reliability of what you have said.”

23. The Arrival interview is an earlier and shorter interview than the Entry interview. I accept the submissions of the applicant’s counsel, Mr Zipser, that the Arrival interview is not designed or intended to elicit fulsome information about the applicant’s protection visa claims. Mr Zipser referred to MZZJO v Ministerfor Immigration and Border Protection (2014) 239 FCR 436 (“MZZJO”) where the Full Court noted that some caution should be exercised by decision makers in relation to omissions made by applicant’s in matters at [56] and [57]:

    “56. On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

    57. Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.”

24. The misunderstanding of the Authority in the present case involves the role of the Arrival interview, while the potential misunderstanding of the decision maker in MZZJO involved the role of the Entry interview.

25. I accept the applicant’s submission that for the Authority to make an adverse finding against the applicant because he did not identify all his protection visa claims at an Arrival interview, which is not designed or intended to elicit information about his protection visa claims, is perverse.

26. In the case before this Court, there is no logical connection between the evidence given by the applicant in the Arrival interview and the findings made by the Authority to reject the applicant’s subsequent protection visa claims made at the Entry interview because they were not made at the Arrival interview. As stated above, the Arrival interview is primarily for a different purpose, namely, to ascertain the manner in which the applicant has arrived in Australia (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2) (“DAO16”). In DAO16 the Full Court (Kenny, Kerr and Perry JJ) stated the following principles at [30]:

    “30. The relevant principles can be summarised as follows.

    (1)         While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review:  CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

    (2)         Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

    135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

    (Emphasis added)

    (3)         By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

    (4)         Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

    56         An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error.  That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.  Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

    (citations omitted)

    (5)         A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].”

1. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises 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 judgments made by the decision maker (see Li at [30], [113]).

2. Recently, the High Court of Australia has considered legal unreasonableness in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. Keifel CJ stated at [12] – [14] as follows:

   “12 In Minister for Immigration and Citizenship v Li [(2013) 249 CLR 332 at 363-364, 367] reference was made to what had been said in Klein v Domus Pty Ltd [(1963) 109 CLR 467 at 473] regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.

   13 The Migration Act requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.

   14 In Minister for Immigration and Citizenship v Li, it was accepted that the Migration Review Tribunal is to act in an efficient manner. This did not explain why that Tribunal decided abruptly to conclude the review when the applicant had requested time to allow the outcome of a relevant assessment, one which might favour the review of her application, to be known. It was not obvious how the Tribunal had reached its decision not to exercise its discretionary power to adjourn the hearing, but it was to be inferred that some error in reasoning had led to what was plainly an unjustifiable and unreasonable decision. In this case the basis for the Tribunal's decision is apparent. The decision is plainly justified by reference to it.”

   (Footnotes omitted)

3. In Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44] per the Court (Allsop CJ, Robertson and Mortimer JJ) stated as follows:

   “44. In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]-[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]):

   “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–221 [47].””

4. The Authority’s rejection of the applicant’s claims about his brother’s death and that being his reason for departing from Iraq was based on the failure of the applicant at the Arrival interview to make those claims. As stated above, it was not the role of the Arrival interview to elicit fulsome claims from the applicant. The information sought at the Arrival interview was directed more at eliciting information about the applicant’s identity and the circumstances of his arrival in Australia. In those circumstances, the Authority’s rejection of the applicant’s later claims about the circumstances of his brother’s death and that being his reason for leaving Iraq, and the Authority’s failure to invite the applicant under s.473DC of the Act to provide any comment or information in relation to the applicant’s failure to mention those claims at the Arrival interview were, for the reasons above, arbitrary, capricious, without common sense and lacking an evident and intelligible justification (see Li).

5. In the circumstances, the Authority’s rejection of the applicant’s claim concerning the death of his brother because he did not mention the claim at the Arrival interview, in light of the role of the Arrival interview, was perverse in a manner constituting jurisdictional error. Further, it was legally unreasonable to reject those claims by the applicant on the basis that they were not mentioned at the Arrival interview without exercising the power under s.473DC of the Act to give the applicant an opportunity to comment and was legally unreasonable in all the circumstances.

6. Accordingly, the decision of the Authority should be set aside and the matter remitted for determination according to law.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:         16 August 2018