Bip18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 827
•28 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BIP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 827
File number(s): SYG 735 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 April 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise visa (SHEV) (XE-790) – whether the decision of the Authority was affected by jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss 473 Part 7AA Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
DCG16 v Minister for Immigration and Anor [2017] FCCA 285
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 297 ALR
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNGP [2010] FCCA 51
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasimgham (2000) 168 ALR 407
SZLGP v Minister for Immigration [2008] FCA 1198
Number of paragraphs: 60 Date of last submission/s: 12 April 2021 Date of hearing: 12 April 2021 Place: Parramatta Counsel for the Applicant: Mr D’Arville Counsel for the Respondents: Mr Swan ORDERS
SYG 735 of 2018 BETWEEN: BIP18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant to pay the First Respondent’s costs fixed in the amount of $7467.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant claims to be a Shia Arab from Iraq. The applicant first arrived in Australia in Australia on 3 April 2013. The applicant lodged an application for a Safe Haven Enterprise (protection) visa (“SHEV”) on 22 June 2016.
A delegate of the Minister for Immigration and Border Protection (“the delegate”), refused to grant the applicant a protection visa on 5 May 2017.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 1 March 2018, the Authority confirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
After setting out the time line for the matter at paragraphs 2 and 3 of its decision, the Authority found exceptional circumstances to consider new information consisting of a journal article discussing ‘fasel’ or blood money in tribal law in Iraq, as well as updated country information about Iraq.
The applicant’s claims are set out at paragraph 6 of the Authority’s decision. They are as follows:
•He was working as a taxi driver on 10 October 2012 driving a man named ‘H’ when an overtaking truck forced him to drive to the side of the road. He hit a ditch and H was seriously injured in the accident;
•The applicant provided financial assistance to H and his family while H was in hospital;
•H’s uncles subsequently came to the applicant’s house and, in accordance with tribal traditions, requested he pay 60 million dinars. They threatened to kill him if he did not pay the money. H belonged to the Alzayad tribe which was one of the biggest tribes in the south of Iraq;
•At the beginning of 2013 the applicant left Samawah for Baghdad to live at this aunt’s place. His family called him and told him the Alzayad tribe knew he went to Baghdad and regarded his doing so as an insult. The Alzayad tribe also approached his brother, A, and questioned A about the applicant and demanded they pay the money. His brother feared for his life and went to Baghdad and joined the applicant;
•He and his brother raised some money and arranged to travel out of Iraq, arriving in Australia in April 2013;
•Because A’s wife became ill, A returned to Iraq. The Alzayad tribe came and questioned A about the applicant, A told them he was in Australia, they told A they will never forget what the applicant had done to them and that he would be killed because he ignored their tribal demands; and
•He fears he will be killed or seriously harmed for the above reasons.
At paragraph 14 of its decision, the Authority accepts on the basis of country information, that tribal law, including fasel, operates in Iraq and there are disputes between tribes. At paragraph 16 of its decision, the Authority sets out a number of ‘issues’ in regards to its concerns as to the credibility of the applicant’s claims. These are then set out in detail. At paragraph 17 of its decision, the Authority refers to country information about the use of mediator and/or a formal process known as sulha that accompanies a fasel payment. The Authority notes that this was not referred to by the applicant.
At paragraph 18 of its decision, while acknowledging the difficulties of recall over time, the scope for misunderstanding in interpreted material, cross-cultural communication issues and problems of a person who has suffered trauma, in the Authority’s views, the issues with the applicant’s evidence go beyond minor discrepancies and demonstrate significant changes, inconsistencies and credibility problems. The Authority found that the applicant was clearly prepared to exaggerate, embellish and fabricate aspects of his evidence in order to boost his claims for protection. Accordingly, the Authority rejected the applicant’s claims of being involved in a car accident with serious injuries to H, that he paid 6 million Dinars to cover hospital costs for H and was then subject to a demand for payment of 60 million dinars as fasel.
Having rejected the main tenant of the applicant’s claims for protection, the Authority then went on to consider any additional matters, including the applicant returning as a failed asylum seeker which might be grounds for protection. At paragraph 27and 28 of its decision the Authority concluded that the applicant would not face a real chance of harm on the basis of his Shia faith, his return as an unsuccessful asylum seeker or for any other reason.
At paragraph 34 onwards of its decision, the Authority considered the applicant’s claims under the complimentary protection criteria. The Authority was not satisfied the applicant faced a real risk of significant harm for any of the reasons and factual matters it had already discussed in the refugee claim.
In these circumstances, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained within an Amended Initiating Application filed with the Court on 21 November 2011. They are as follows:
Ground One
The decision of the Immigration Assessment Authority (IAA) was affected by jurisdictional error because in coming to its decision it engaged in a reasoning process which was irrational and, therefore, unreasonable.
Particulars
1. The IAA rejected the applicant’s claims that he was involved in a car accident on 10 October 2012 which formed the basis of the applicant’s claims for protection (IAA decision paragraph 18).
2. That rejection was based on a number of “issues” with the applicant’s evidence which were set out in paragraphs 16 and 17 of the IAA decision.
3. In respect of the “issue” that is at paragraph 16, third dot point:
a.The IAA referred to an inconsistency between usual tribal traditions and the applicant’s evidence that money had been demanded from his family.
b.The applicant provided evidence of what happened to him.
c.The fact that the demands made of his family were not consistent or consistently in accordance with usual tribal traditions does not give rise to any inconsistency in the applicant’s evidence.
4. In respect of the “issue” that is at paragraph 16, fifth dot point:
a.The IAA referred to the applicant evidence about his family being visited every month after he left Iraq for the first time during the SHEV interview.
b.The applicant referred to visits to his family after he left in his statutory declaration which was lodged with his visa application (paragraph 7).
c.There was no reason for the applicant to provide further information about the frequency of that contact until he was asked about it in the SHEV interview.
5. In respect of the ‘issue” that is at paragraph 16, sixth dot point:
a.The IAA referred to an inconsistency between his evidence about what his family had been told about the consequences of non-payment
b.The applicant provided evidence of what happened to him.
c.The fact that the demands made of his family were not consistent or consistently in accordance with usual tribal traditions does not give rise to any inconsistency in the applicant’s evidence.
6. In respect of the “issue” that is at paragraph 16, seventh dot point:
a.The IAA referred to an inconsistency in the applicants evidence about his what his brother told him about the reasons that his brother came to Baghdad;
b.The applicant provided evidence of what his brother first told him about why he came to Baghdad. He then provided evidence of what his brother later told him about why he came to Baghdad. No inconsistency arises from that evidence.
7. In respect of the “issue” that is at paragraph 16, eighth dot point:
a.The IAA referred to an inconsistency between the applicant remembering some dates with precision and not being able to remember details of how long the passenger from the car accident was in hospital or the treatments that the passenger had in hospital.
b.There is no inconsistency between the applicant having remembered key dates for matters which affected his own life directly and having a less clear memory of the experience or treatment of the passenger.
8. In respect of the “issue” that is at paragraph 16, ninth dot point:
a.The IAA referred to an inconsistency in various evidence of the applicant about the amounts that were demanded from him.
b.During the Safe Haven Enterprise Visa (SHEV) interview there were miscommunications between the applicant and the SHEV interviewer
c.After the miscommunications were addressed, there was no inconsistency in the applicant’s evidence.
9. In respect of the “issue that is at paragraph 16, 10th dot point:
a.The IAA referred to the applicant not providing evidence of being threatened between November 2012 and 1 January 2013.
b.The lack of such evidence would only give rise to an “issue” if there is evidence that one would expect threats to had been made to the applicant during that period.
c.There was no such evidence before the IAA.
10. In respect of the “issue” that is at paragraph 17:
a.The IAA refer to an inconsistency between the applicant’s evidence about the demands for money for being for the purposes of compensation and the applicants evidence that the demands were for the purpose of ”fasel’”.
b.The applicant provided evidence of what happened to him.
c.The fact that the demands made of the applicant and his family were not consistent over time does not give rise to any inconsistency in the applicant’s evidence.
d.The IAA also referred to the applicant’s evidence about the demands for money being for the purpose of “fasel” only being given after the applicant’s representative referred to that notion in the SHEV interview.
e.At his arrival interview, the applicant referred to the concept of “fasel’, but this word was not used in the English translation of the applicant’s evidence.
f.In the statutory declaration lodged with his visa application, the applicant referred to “tribal traditions” being the basis upon which money was demanded from him.
Ground Two
The decision of the IAA was affected by jurisdictional error because in coming to its decision it:
a.Engaged in a reasoning process which was irrational, therefore, unreasonable; or
b.Failed to consider the question raised by the material before the decision-maker, because the decision turned on a credit finding which was based on minor matters of fact.
Particulars.
a.The IAA rejected the applicant’s claims that he was involved in a car accident on 10 October 2012 which formed the basis the applicant’s claim for protection (IAA decision, paragraph 18).
b.That rejection was based on a number of “issues” with the applicant’s evidence which were set out in paragraphs 16 and 17 of the IAA decision.
c.Each of the “issues” referred to in paragraph 16 and 17 was a minor matter of fact and insufficient to support the credit finding made by the IAA.
d.Assessed cumulatively, the “issues” referred to in paragraphs 16 and 17 were insufficient to support the credit finding made by the IAA.
Ground Three
The decision of the IAA was affected by jurisdictional error because the circumstances of the matters before the IAA were exceptional such that the IAA was required to conduct an oral interview of the applicant.
Particulars.
1. The conclusions referred to in dot points of five, seven, eight and ten of paragraph 16 of the IAA decision were each based on assumptions or inconsistencies about which the applicant was not asked either in his arrival interview or SHEV interview.
2. In circumstances where the IAA proposed to rely on such matters, this gave rise to exceptional circumstances such that the IAA was required to invite the applicant to an oral interview under section 473DC of the Migration Act 1958 (Cth).
3. The Authority did not invite the applicant to an oral interview.
THE APPLICANT’S SUBMISSIONS
In evidence, Counsel for the applicant relied upon two Affidavits, the first of Anthea Burton affirmed 21 November 2018 (Exhibit 1) and secondly an Affidavit of Majida Toma, accredited Interpreter in the Arabic language, affirmed 22 November 2018. Attached to Exhibit 1 was a transcript of the SHEV interview attended by the applicant on 2 March 2017.The Court Book composed Exhibit 3.
In summary, Counsel for the applicant submitted that the Authority committed three types of jurisdictional error. The first is that the factual findings as outlined in the grounds are legally unreasonable, not sufficiently lacking in rational foundation or an evident or intelligible justification: (see: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]).
Secondly, whilst accepting that the common law rules of natural justice are not applicable to the Authority’s consideration of the applicant’s claims, the circumstances of the matter were such that they were exceptional and this necessitated an oral interview with the applicant: (see: DCG16 v Minister for Immigration and Anor [2017] FCCA 285 at [33]-[36]).
Thirdly, it was submitted that one aspect of the requirement for a decision-maker to act rationally, is that where a credibility finding is made against an individual based on minor inconsistencies and trivial errors, this may amount to an illogical and irrational decision making process: (see SZLGP v Minister for Immigration [2008] FCA 1198 at [25]-[26]).
In relation to the first ground, Counsel for the applicant expanded on why it is suggested that the factual findings were wrong. In some cases reliance is placed on an incorrect interpretation, as the Interpreter at the arrival interview did not speak Arabic with the same dialect as the applicant. It was also necessary for the migration agent who accompanied the applicant to his SHEV interview, to clarify the concept of fasel with the interviewer. It was submitted that there is actually no change in the applicant’s evidence. The Court was taken to the page 39 of the SHEV transcript. It was pointed out that the word fasel was used by the applicant prior to the word being used by the applicant’s migration agent.
It was submitted that the conclusion at paragraph 17 of the Authority decision was that:
While the delegate was questioning the applicant about how many times the family/tribe demanded money from him and the cost of the operation, his representative interjected about fasel. From that point on in the SHEV interview the applicant repeatedly referred to fasel. I do not consider the change in his evidence from the monetary demand being focussed on an operation to H to fasel to be credible.
Counsel for the applicant submitted that the conclusion was factually incorrect in that it was the applicant who first used the word fasel in the SHEV interview. Further, the applicant he had discussed the concept of fasel or blood money in his statement of claim but without using that precise word
In relation to dot point 10 of paragraph 16 of the Authority’s decision, it was submitted that the Authority appeared to make its own assumptions about the frequency with which the tribal members in Iraqi would make demands for fasel.
In relation to dot point 3 of paragraph 16 of the Authority’s decision, it was submitted that it was not inconsistent for demands to be made to the applicant’s family once the applicant had left the immediate area. It was also unreasonable for the Authority to assume that a tribe in Iraq would strictly operate in accordance with the specific “rules” for the payment of fasel. It was submitted that H’s family had refused to participate in the usual process involving a mediator.
In relation to dot point 6 of paragraph 16 of the Authority’s decision, it was suggested that it was not inconsistent for the demands by H’s family to have changed over time, particularly as the money was not paid. This is particularly so, in the context of the tribe which the evidence demonstrates was not acting in accordance with the dictates of the usual tribal rules in relation to fasel.
In relation to dot point 5 of paragraph 16 of the Authority’s decision it was submitted that the inconsistency about how often requests were made for money, was a minor detail about something which had been reported to him by his brother. There was no reason to mention it prior to having been asked about it in the SHEV interview.
In relation to dot point 7 of paragraph 16 of the Authority’s decision, it was suggested that there was no inconsistency with the evidence given, regarding the reasons why the applicant’s brother came to Baghdad. It is a perfectly normal part of human existence to act for more than one purpose. In any case, the applicant’s knowledge of the reasons for his brother’s actions, is not a safe foundation for a conclusion about the applicant’s credibility.
In relation to dot point 8 of paragraph 16 of the Authority’s decision, concerning errors in the applicant’s recall of dates and details, it was submitted that the Authority’s approach is entirely unrealistic and that the matters that the applicant did not recall, were minor matters of detail. It was not reasonable, intelligible or rational to make the adverse credit finding that the Authority did, based on this lack of recall of minor matters.
In relation to dot point 9 of paragraph 16 of the Authority’s decision, it was submitted that there was a confusion between the applicant and the interviewer about the number of demands made at different points during the SHEV interview. It was submitted that this was merely a misunderstanding (possibly complicated by translation difficulties), and was not an intelligible, rational foundation, for the Authority to reject the applicant’s evidence.
Ground two asserts that the rejection of the applicant’s evidence based on the issues in paragraph 16 and 17 of the Authority’s decision, each involved minor matters of fact and was insufficient, to support the adverse credit finding made by the Authority. These findings were trivial in nature and cumulatively insufficient, to support the rejection of the applicant’s claim.
In relation to ground three, it is asserted that given the importance that the Authority placed on the supposed inconsistencies in the applicant’s evidence, this gave rise to the requirement that the Authority invite the applicant to an oral interview and interview him in relation to these inconsistencies. A failure to do so was a jurisdictional error.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to the various factual matters contained within ground one, Counsel for the first respondent submitted that an Authority acting in a rational and logical manner, “could” have come to the conclusions that it did. It is not enough that reasonable minds might disagree on the conclusions, each of them would need to reach the stringent requirement for unreasonableness or extreme irrationality.
Further, there are factual conclusions that are not challenged. Even if some of the conclusions are wrong, (which is not conceded) then there was still sufficient material for the Authority to come to the factual conclusion that it did. Those that remain, would provide adequate rational and logical support for the ultimate findings and the rejection of the applicant’s claim was not as a whole unreasonable. The matters relied upon by the Authority were not minor inconsistencies or trivial, but formed a rational basis for the adverse credit finding and the rejection of the applicant’s claims.
Ground two alleges that the Authority’s decision was irrational or unreasonable because it turned on a credit finding “which was based on minor matters of fact,” being the “issues” identified at paragraphs 16 and 17 of the Authority’s decision. As noted above, the Authority identified approximately 13 issues with the applicant’s evidence. The Authority squarely turned its mind as to whether these could be explained by difficulty of recall over time, misunderstanding of interpreted materials, cultural issues and the effects of trauma on a person. It was not satisfied they could be explained.
The Authority was squarely satisfied that the issues identified went “beyond minor discrepancies” satisfied that, when “taken together” they demonstrated that the applicant lacked credibility. It was submitted that a reasonable, rational Authority, could have reached the same conclusion in the light of the issues that have been identified. Whether these issues were minor, was a matter for the Authority, not the Court. It was submitted by Counsel for the Applicant that the contention that the Authority’s conclusion is illogical, is no more expression of strong disagreement with the Authority’s reasons. However it does not establish illogicality unreasonableness or jurisdictional error: (see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124]).
Ground three alleges that the Authority was “required” to conduct an oral interview with the applicant, pursuant to s 473DC of the Migration Act 1958 (Cth) (“the Act”), because the Authority’s concerns at paragraph 16, dot point 5, 7, 8 and 10 of its decision, were not put to the applicant at his arrival interview and SHEV interview.
Firstly, the assertion that the Authority was “required” to conduct the interview is not consistent with s 473DC(2) of the Act which provides that the Authority does not have a duty to “get, request or accept” new information.
If it is asserted that it was legally unreasonable for the Authority not to get “new information”, it is submitted that reasonableness must be assessed by reference to the statutory context of the power in question: (see: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [79]). The primary rule in relation to reviews under Part 7AA of the Act, is that the Authority is to review decisions referred to it by considering review materials provided by the Secretary on the papers, without accepting or requesting new information or interviewing the referred applicant: (see: s 473DB(1) of the Act).
Importantly, as explained in by the Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (“DGZ16”) at [72]-[76], Part 7AA contemplates “that the Authority will evaluate for itself the material considered by the delegate”. This is what happened in this case. The Authority considered the materials available to the delegate, and it (like the delegate) was not satisfied of the applicant’s claims. As explained in DGZ16 the Authority is not obliged to notify the applicant of specific reservations about his case and provide an opportunity to comment. It is not obliged to notify the applicant that it might take a different view of the material to that of the delegate. Contrary to the suggestion in this ground, there is no obligation on the Authority to “point out” supposed inconsistencies in the applicant’s evidence. In so far as this ground refers to there being “exceptional circumstances” that is not the correct test for whether the Authority was legally obliged “as a matter of reasonableness”, to invite the applicant to an oral interview.
CONSIDERATION
It is perhaps useful to first set out some general legal principles applicable to this matter. Jurisdictional error will not arise if the Authority’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Authority: (see: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasimgham (2000) 168 ALR 407 at [67]).
That said, credibility findings can be attacked if they are irrational. The Court was directed to CRW16 v Minister for Immigration and Border Protection [2018] FCA 859 where Allsop CJ stated the following at [62]:
[62] The fact that a finding by the Tribunal is on a matter of credit does not “shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, “like all findings, must be rationally made and based upon facts having logical and probative weight”. Determinations on credibility and weight must “be made rationally and logically, and be articulated properly” and minor inconsistencies and trivial errors in an applicant’s account cannot be used to find that an applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].
The Court was also referred to CIC15 v Minister for Immigration and Border Protection [2018] FCA 795 at [26] per Bromberg J where the following was said:
[26] As I have said, each of the five discrepancies identified by the Tribunal was, of itself, minor or trivial, and each was recognised by the Tribunal as being explicable by reason of the passing of time. If each discrepancy is explicable by reason of the passing of time, each discrepancy, on its own, contributes nothing towards a conclusion that the appellant fabricated his story. I recognise that the Tribunal came to its conclusion relying on the sum of the five discrepancies but the difficulty with that reasoning is that if none of the discrepancies of itself contributed any weight in favour of the conclusion, it does not follow that the sum of the weight of the five discrepancies supports the conclusion. In plain language, five times nothing equals nothing; it does not equal something.
Jurisdictional error will not arise, even if the applicant’s complaints about the mistakes of fact made by the Authority were accepted, if none would be dispositive of the applicant’s claims and none is capable of suggesting that the Authority has not considered the applicant’s claims: (see: Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51).
The test for legal 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: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]). Further, for findings to be considered as irrational or illogical the errors must consist of extreme illogicality or irrationality.
Further, the Authority’s reasons are not to be read ‘with an eye keenly attuned to error’: (see: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]).
Ground one consists of a series of challenges to some but not all of the various factual findings of the Authority at paragraph 16 of its decision. Not all findings are challenged. In so doing, the applicant seeks to challenge the details of the impugned findings. In the Courts view, the applicant in fact seeks to read the Tribunal’s reasons with an ‘eye finely attuned to error’. If anything, the challenge simply seeks to emphatically disagree with the Authority’s findings and invite this Court to conduct impermissible merits review.
Prior to making the findings, the Authority cautioned itself on drawing adverse conclusions on the applicant’s evidence in circumstances where he may have had difficulty of recall over time, the scope for misunderstanding with interpretation and other factors are set out at paragraph 18 of the Authority’s decision. It was with this in mind that the Tribunal then considered the ‘issues’ with the applicant’s evidence.
As to dot point three, the Court does not find that the conclusion that the applicant was inconsistent as to as to who should pay the money, is such as to reach the extreme level of irrationality. The fact that a different fact finder may have reached a different conclusion, does not reach the level of irrationality as long as different reasonable minds could disagree. The Authority was concerned that the applicant’s evidence shifted that he would have to pay the money to, that his family would have to pay. It was suggested by Counsel for the applicant that this was a natural progression when he indicated he would be unable to pay the 60 million Dinar. The purpose of fasel in this case was to provide for H and pay for an operation. The Authority was concerned at the evidence given that the applicant was told by his brother that the issue was now not about the money at all, H’s family just wanted to kill him.
As to dot point five, the statement is factually correct. The claim that H’s relatives visited his home every 2 months or so was only first raised at the SHEV interview. It is not irrational to conclude that this was a matter that should have been raised in the applicant’s statement of claims.
As to dot point six, again a rational Authority could have reasoned that the applicant’s story changed from H’s family just wanting money to wanting to kill him, as compared to wanting more money. The claim that H’s family just wanted to kill the applicant was also in contrast to the claim that they wanted an additional 10% or 20% in addition to the 60 million Dinars, as he had left the area. The Court is not satisfied that this issue reaches the level of extreme irrationality.
As to dot point seven, the Authority was entitled to draw an adverse credit conclusion on the changes to the applicant’s evidence as to the reasons why his brother came to Bagdad. Again the conclusion does not reach the point of extreme irrationality. The applicant’s evidence in his statement of claim was that his brother came to see him ‘as he feared for his life’. This changed in the SHEV interview to ‘firstly he wanted to see me, secondly that he wanted to tell me that these people want you and that they are going to come for you’ and that ‘he was frightened for me’. These were clear inconsistencies that the Authority was entitled to rely upon as to credit, and do not reach the level of extreme irrationality.
As to dot point eight, the Authority was entitled to draw an adverse credit conclusion based on the lack of specific detail in areas where the Authority expected some specificity. Counsel for the applicant submitted that it was natural that the applicant would not have perfect recall and would recall some matters better than others in regards to specific detail. The Authority was entitled to find that the lack of detail about the treatment H was receiving, bearing in mind that the applicant was visiting him in hospital and was paying the medical bills was an ‘issue’. It is not illogical or irrational to find, given that the applicant was paying H’s hospital bills that he stated that he was unaware of what treatment H was receiving. The Court notes that in the SHEV transcript, the applicant states that he does not know if H underwent an operation that he was to pay money for. Again this does not reach the point of extreme illogicality or irrationality.
As to dot point nine, the Authority listened to the recording of the SHEV interview. The Court has a transcript of the SHEV interview. The applicant initially stated that there was one demand at transcript 39-40, yet he earlier stated a demand was made twice: see transcript 37-39. The Court is satisfied that the Authority was entitled to make the finding that it did, based on this inconsistency. It does not reach the level if extreme irrationality.
As to dot point 10, the Authority was entitled to form a view as to the lack of anything adverse happening to the applicant between late November 2012 and 1 January 2013 following the demand for 60 million Dinar was a matter that it could consider as to the credit of the applicant.
The Court is satisfied however, that the Authority was incorrect at paragraph 17 of its reasons in finding that the use of the term fasel was first raised by the Migration Agent and that the evidence of the applicant changed after that. It is clear that the applicant did use the term prior to the Migration Agent interjecting and explaining the meaning of fasel. This error however, does not undermine the overall conclusions of the Authority.
The Court rejects the submission by Counsel for the applicant that the adverse credit conclusion by the Authority was based on the conclusions ‘taken together’ that is, the conclusion was only reached as a result of all the findings and that a rejection by this Court as to any one means that the adverse credit finding cannot stand. Based on the totality of the findings that the Court has determined were reasonably available, the Court considers that the ultimate factual finding is not either legally unreasonable or tainted by extreme illogicality or irrationality. The issue in relation to the first usage of fasel is not dispositive of the matter.
In coming to the above conclusions the Court is of the view that it was within the legitimate decisional freedom of the Authority to act as it did. Further, even if the Court is wrong on some of these factual findings, given the overall number of matters considered by the Authority, they would not be enough to have changed the ultimate outcome in regards to the finding of the Authority that the claims were false.
In relation to ground two, the Authority conducted an exhaustive examination of the applicant’s claims. It is to be noted that the applicant’s case rested solely upon the acceptance of his claims in circumstances where there was no other supporting evidence. This required the Authority to carefully examine the applicant’s claims. Courts, on judicial review, should be properly wary of intervening on the basis of disputed adverse credit findings, unless there is demonstrated error of the part of the Authority.
After examining all those matters the Authority found that it had significant issues with the applicant’s credit such that it did not accept the central claim, being the car accident and the injuries to H, the claim for fasel and subsequent threats from H’s family. The Authority did so, in circumstances where it accepted the concept of tribal law and fasel in Iraq, but not in the circumstances described by the applicant. As set out above, the test for legal unreasonableness is stringent and will only arise in rare cases. The Court is not satisfied that the Authority’s reasoning process was such that no other decision maker could have arrived at on the material before the Authority, or that it was illogical or irrational to the level to justify intervention by the Court.
Further, even if the Authority is wrong in relation to some of its fact findings, which the Court does not find, except in one matter, then those matters would not have resulted in a different outcome. There was enough material before the Authority, for it to come to the conclusion that it did, even without some of the findings that it came to. That is, the overall outcome did not require a sequential and cumulative fact finding process for the overall conclusion to have been arrived at. Any individual wrong finding of fact is not dispositive of the matter. The Court does not accept that the inconsistencies found by the Authority were minor or trivial in circumstances where the claims relied entirely upon the applicant’s evidence. No jurisdictional error exists in Ground two.
Ground three asserts that there were exceptional circumstances in the matter in relation to some of the evidentiary matters which required the Authority to invite the applicant to an oral interview pursuant to s 473DC of the Act. The Court notes that s 473DB of the Act, specifically authorises the Authority to undertake its review (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. Further, no obligation exists upon the Authority to get, request or accept any new information: (see: s 473DC(2) of the Act). Section 473DE of the Act sets out the limited circumstances, whereby new information must be given to a referred applicant.
In this case, the Authority considered the matter based solely on the information that was before the delegate. No obligation exists upon the Authority to advise an applicant that it might take a different view of the material to the delegate. The Court agrees with the submission of Counsel for the first respondent that in the circumstances of this case, there was nothing that required the Authority to invite the applicant for an oral interview. There was no material that required further information which the applicant could have easily resolved by further oral evidence. The applicant had made his claims in his statement of claim and in his SHEV interview. Nothing further was required as necessary on the part of the Authority. Ground three reveals no jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 April 2021
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