BJU16 v Minister for Immigration
[2017] FCCA 1959
•5 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJU16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1959 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – applicant’s fears found not to be well-founded – whether the Authority overlooked relevant material, or whether the Authority’s decision was unreasonable considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.473CB |
| Cases cited: WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZMDS (2010) 240 CLR 611, [2010] HCA 16 Minister for Immigration v Khadgi & Anor [2010] FCAFC 145 MZZMA v Minister for Immigration & Anor [2015] FCCA 125 |
| Applicant: | BJU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1446 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 August 2017 |
| Date of Last Submission: | 1 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bennett |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 30 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1446 of 2016
| BJU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 2 May 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 10 August 2017.
The applicant claims to be an Iraqi national of Bidoon ethnicity[1].
[1] So the Authority found at Court Book (CB) 185 [7].
He arrived in Australian territory on 13 October 2012 and was detained at Christmas Island[2]. He was interviewed on 26 October 2012[3]. When asked why he had left his country of nationality (or residence), the applicant is recorded, relevantly, as saying[4]:
They always call us Bedoun, even though I have … Iraqi citizenship. My children had inferiority complex. My son, Farhad graduated in Psychology and Social Sciences and was unable to get a job. We were always oppressed because of our ethnic group (Bedoun) even though I have the Iraqi citizenship. Still after 21 years, they are calling me Bedoun.
[2] CB 123 [2].
[3] CB 1-21.
[4] CB 16.
Following the lifting of the statutory bar[5], the applicant applied on 15 June 2015 for a temporary protection (subclass 785) visa[6].
[5] CB 22-27.
[6] CB 28-73.
The applicant’s claims were set out in a short declaration attached to his application[7]. Broadly, he claimed that he was persecuted by “Badr Militias” in Najaf where he farmed land which he owned, having previously rented it. He claimed that, in 2009, the militias questioned him about the land and accused him of being a supporter of the Ba’athists (from the Hussein-era regime). The land was apparently of potential value to the militias because it could be used for propaganda, as it was on a Shiite pilgrimage route. The applicant claimed that he was pressured from 2009 until his departure in 2012 by the militias who, he said, shot near his house at night and shot and killed his animals, scaring away his workers.
[7] CB 64-65.
On 8 October 2015, the applicant attended an interview with the delegate[8]. During the interview, the applicant claimed that the Badr militia approached him and ordered him to vacate the land. Amongst other matters discussed at the interview was the fact that the applicant had not mentioned his claims concerning the Badr militia at the entry interview[9].
[8] CB 93-95; CB 124 [4] and CB 125 [10]-[31].
[9] See CB 127 [18]-[24].
The delegate refused to grant the applicant a protection visa on 5 April 2016[10]. The delegate rejected the applicant’s claims of being harassed by the Badr militia, including because of the applicant’s failure to mention this claim at his entry interview[11].
[10] CB 119-144.
[11] CB 134 [65]-[76], especially at [71].
The applicant was referred to the Authority on 6 April 2016[12] and was notified of the referral by letter of the same date[13]. The letter enclosed an information sheet, in both English and Arabic, about the Authority, as well as the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients[14].
[12] CB 145-151.
[13] CB 153-158.
[14] CB 153-158.
On 27 April 2016, the applicant sent a submission to the Authority[15].
[15] CB 159-179.
On 2 May 2016, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa[16].
[16] CB 181-195.
Authority’s findings and reasons
The Authority accepted that the applicant, who was born in Kuwait, was granted Iraqi citizenship and is of Bidoon ethnicity[17].
[17] CB 185 [7].
The Authority rejected the applicant’s claims based on his ethnicity. The Authority found, on the basis of country information, that the difficulties faced by the applicant, especially when he first arrived in Iraq in 1991, stemmed from “patronage, nepotism, sectarian identity and societal prejudice, rather than discriminatory official government policies”[18]. The difficulties that faced the applicant’s son reflected “economic realities in Iraq” and were not linked to his ethnicity[19]. Further, the Authority found that any discrimination did not amount to serious harm, concluding that his capacity to secure a livelihood was not adversely affected by his ethnicity[20]. The Authority was not satisfied that there is a real chance of persecution for reason of his Bidoon ethnicity.
[18] CB 186 [8].
[19] CB 186 [9].
[20] CB 186 [10].
The Authority then turned to the applicant’s claims relating to the Badr militia, identifying first the applicant’s claims and then outlining country information concerning the “Badr Organisation”[21].
[21] CB 186 [11].
The Authority set out what the applicant had said in his entry interview[22]. It then considered the applicant’s explanation for why he had not mentioned at that stage the threats from the “Badr Organisation”[23]. Relevantly, the Authority stated[24]:
… Notwithstanding that the entry interview did not explore detailed claims for engaging Australia’s protection, I consider that given the significance of this aspect of the claim, the applicant would be expected to have identified the Badr Organisation when asked why he departed Iraq. As he did not, I do not find plausible the claim raised at the visa interview regarding threats to the applicant by the Badr Organisation from 2009 onwards. As I have found the threats from the Badr Organisation not to be plausible, I do not accept that the Badr Organisation continues to pressure the applicant’s family in Iraq about his whereabouts.
[22] At CB 187 [12]-[13].
[23] CB 187 [14].
[24] CB 187 [14].
The Authority was not satisfied that the applicant faces a real chance of persecution from the Badr militia[25], and it rejected the applicant’s other claims that were based on or related to this[26].
[25] CB 187 [14].
[26] CB 187 [15]-[16].
The Authority also found, on the basis of country information, that the applicant did not face a real chance of persecution in Iraq because he would be returning from a Western country[27].
[27] CB 188 [17].
The Authority found that the applicant did not have a well-founded fear of persecution and was therefore not a refugee[28].
[28] CB 188 [18]-[19].
The Authority then gave consideration to the complementary protection criterion[29]. For similar reasons, the Authority concluded that the applicant did not have a real risk of suffering significant harm.
[29] CB 188-190 [20]-[28].
The Authority accordingly affirmed the delegate’s decision[30].
[30] CB 190.
These proceedings
These proceedings began with a show cause application filed on 7 June 2016. The applicant now relies upon a further amended application filed on 30 November 2016. The grounds in that application are:
Failure to consider material relevant to the criteria
1.The decision of the Second Respondent occasioned jurisdictional error and failure to make a decision under the Migration Act 1958, in that it failed to consider relevant material or considered irrelevant material, including but not limited to where the Second Respondent failed to consider, or failed properly to consider the documentary material provided by the Applicants (the ‘Documents’) by its migration agent, in making its decision.
Particulars
The decision of the Second Respondent failed to consider or failed properly to consider:
(a)the material submitted by the Applicant through his migration agent by email sent on 27 April 2016, including but not limited to submissions concerning:
(i) the prevalence of extortion in respect of land interests in Iraq; and
(ii) the interest of Iraqi militias in gaining control of land interests near the course of the pilgrimage from Karbala to Narjaf in Iraq.
2.Further and in the alternative, by the conduct set out at paragraph 1, the decision of the Second Respondent occasioned jurisdictional error and failure to make a decision under the Migration Act 1958, in that it failed to actively and intellectually engage with the criteria and documentary material relevant to the determination of the application.
3.Further and in the alternative, by the conduct set out at 1, the decision of the Second Respondent occasioned jurisdictional error and failure to make a decision under the Migration Act 1958, in that this conduct was unreasonable or irrational in the circumstances.
Unreasonableness concerning paragraph 11 of the IAA decision
4.The decision of the Second Respondent at paragraph 11 occasioned jurisdictional error and a failure to make a decision under the Migration Act 1958, in that the decision exhibited reasoning that was unreasonable and irrational in the circumstances.
Particulars
The decision of the Second Respondent at paragraph 11 asserts that:
(a)because the Badr Organisation is more “focussed now on the much larger issue of the fight against Daesh”;
(b)implicitly, the Applicant's claims concerning the Badr Organisation are implausible.
Unreasonableness concerning 12 to 16 of the IAA decision
5.The decision of the Second Respondent at paragraphs 12 to 16 occasioned jurisdiction error and a failure to make a decision under the Migration Act 1958, in that the decision exhibited reasoning that was unreasonable and irrational in the circumstances.
Particulars
The decision of the Second Respondent placed excessive weight on the failure of the Applicant to raise matters concerning threats from militia in Iraq at the Irregular Maritime Arrival Entry Interview conducted on 26 October 2016.
(errors in original)
I have before me as evidence the book of relevant documents filed on 28 July 2016 and an affidavit by the applicant made on 4 November 2016.
Both the applicant and the Minister filed pre-trial submissions and made oral submissions through their counsel at the trial of the matter on 17 August 2017. I invited post-hearing submissions on an issue of the applicant’s nationality and those were provided by the Minister on 25 August 2017 and by the applicant on 1 September 2017.
Consideration
Ground 1 – Did the Authority fail to consider relevant material?
The applicant contends that the Authority failed to consider, or properly consider, documentary material provided by the applicant’s migration agent on 27 April 2016. In the alternative, the applicant contends that if the Authority’s decision was made in the light of the documentary material provided by the applicant, it was unreasonable[31].
[31] See Minister for Immigration v Li (2013) 249 CLR 332.
I accept the following propositions put by the applicant. First, the migration agent for the Applicant provided documentary material and submissions in support of the application[32].
[32] Affidavit of the applicant at [8] (RA-4).
Secondly, in the submissions and materials that were provided to the Authority, it was in effect communicated that:
a)the area around Najaf was subjected to land extortion claims by militias operating in the area, and that there was at some time a bombing attempt at the Directorate of Properties[33];
b)there was interest for Iraqi militias in gaining control of land near the course of the pilgrimage from Karbala to Najaf in Iraq, and that the Land Registry Department in Najaf was “shut down” for corruption concerns[34];
c)at the time of the entry interview, the record of which formed part of the materials on which the decisions to refuse the visa were based, the applicant was stressed[35]; and
d)two of the applicant’s children disappeared in 2014, which was raised at interview[36].
(together, the raised matters)
[33] RA-4, page 48.
[34] RA-4, page 48.
[35] RA-4, page 51.
[36] RA-4, page 51.
Thirdly, [3] of the Authority’s decision[37] makes only brief reference to the raised matters, in that it states that regard was had to the submissions.
[37] CB 184.
Fourthly, in considering the criteria by which it is to make a decision, the decision maker must show an “active intellectual process” directed at the criteria[38].
[38] Minister for Immigration v Khadgi & Anor [2010] FCAFC 145 per curiam at [57]; Tickner v Chapman (1995) 57 FCR 451 at 462. See also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [105].
Fifthly, in making the decision, the Authority must consider all of the claims and integers of those claims put by the applicant[39]. This obligation includes not only claims expressly put by the applicant, but also those which arise “squarely” on the material or are “apparent on the face of the material”[40].
[39] NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55]-[57].
[40] NABE at [58].
Sixthly, it must be acknowledged that a decision maker is entitled to be brief in consideration of a matter which has little or no practical relevance to the circumstances of a particular case: Minister for Immigration v Khadgi[41], where it was stated:
A court would not necessarily infer from the failure of a decision maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given a cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision…
[41] (2010) 190 FCR 248 at 270.
Seventhly, where the reasons disclose a lack of connection in reasoning from relevant materials to conclusions reached by a decision maker, this may indicate that there has been a failure to consider a relevant matter under the statutory criteria[42].
[42] Rares J in Minister for Immigration v SZRUT [2013] FCA 1276 at [23].
Eighthly, an inference that the decision maker had failed to consider an issue might be drawn from its failure to deal expressly with that issue in its reasons[43].
[43] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ.
Ninthly, it must be accepted that it is not necessary for the decision maker to refer to every piece of evidence and every contention made by an applicant in its written reasons[44].
[44] Applicant WAEE at [45]-[46].
Tenthly, certain matters put on behalf of the applicant were accepted by the Authority, including that:
a)the applicant “may be perceived as being a member of a particular social group comprising wealthy landowners in Iraq”[45];
b)the applicant is of Bidoon ethnicity[46] (this ethnicity has received judicial consideration previously[47]);
c)the Badr Organisation may have been active in the area from which the applicant came[48]; and
d)the applicant has relevant land interests as claimed in his visa application[49].
[45] CB 187 [16]. See also SZRUT v Minister for Immigration & Anor [2013] FCCA 368.
[46] CB 189 [22].
[47] See for instance MZZMA v Minister for Immigration & Anor [2015] FCCA 125.
[48] CB 186 [11].
[49] CB189 [25].
Eleventhly, it was accepted by the delegate that the applicant may have been psychologically unprepared for the entry interview[50].
[50] CB 135 [71]; RA-4 page 71.
The applicant contends that in circumstances where the matters set out above are accepted, the references in the Authority’s decision to the submissions and to material provided by the applicant’s migration agent are cursory and disclose a failure to actively and intellectually engage with the material relevant to the statutory criteria[51].
[51] See Li at [71].
I prefer the Minister’s submissions in relation to this ground.
The applicant’s argument fails not only because the Authority properly dealt with the material but, critically, because it rejected at a more fundamental level the applicant’s claims (to which the “submissions” related).
The Authority first identified the information to which it had regard[52]. This included the material provided under s.473CB of the Migration Act1958 (Cth), as well as the applicant’s submission and its constituent parts. The Authority identified, relevantly, that the second document, which duplicated one before the delegate, included “quotations from … reports concerning militia group confiscation of land in Iraq and the ongoing involvement of militia groups in controlling land titles offices in Iraq”. This had been advanced in aid of the applicant’s claim to fear harm from the Badr militia, which the Authority identified[53].
[52] CB 184 [3].
[53] At CB 184 [4].
At [11] of its reasons[54], the Authority again characterised the applicant’s claim as “an escalation in threats from the Badr Organisation, a Shia militia group, seeking to usurp the land he leased” and also accepted that the Badr militia “may have had an active presence in the applicant’s home city of Najaf”.
[54] CB 186.
This acceptance, however, was not sufficient, insofar as his claim to be a refugee was concerned. This was because the Authority did not find any of the applicant’s claims concerning the threats from the Badr militia to be plausible. As the factual foundation for the applicant’s claims was rejected by the Authority, like the delegate before it, it was not necessary for the Authority to do more with the submissions put forward by the applicant and his representative[55].
[55] See Applicant WAEE at [47].
There are two further points in the applicant’s submissions which were not raised in the application. These appear at [26](c) and (d) above. In respect of those matters, the Minister submits and I accept that:
a)as to subparagraph (c), the Authority expressly refers to this[56]; and
b)as to subparagraph (d), no connection to the applicant’s particular claims to fear harm was given and none is apparent, such that this does not constitute a “substantial, clearly articulated argument relying upon established facts”[57].
[56] At CB 187 [14].
[57] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088, 197 ALR 389, [2003] HCA 26 at [24]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, [2004] FCAFC 263.
It follows that Ground 1 cannot be made out.
Grounds 2 and 3 – was the decision of the Authority otherwise unreasonable?
It is convenient to consider Grounds 2 and 3 together, because the applicant asserts that they demonstrate irrationality or unreasonableness such as to constitute jurisdictional error. In these grounds the applicant takes issue with the Authority’s reasoning at [11] and [12]-[16].
In those paragraphs the Authority stated:
[11]Because the applicant was granted Iraqi citizenship by the government of Saddam Hussein, was granted a contract by the government of Iraq in 1997 for use of agricultural land and refused to surrender this land, he was accused by the Badr Organisation of being a Ba’athist collaborator, a supporter of Saddam Hussein and an anti-Shia Sunni. The applicant claims that his fleeing from Iraq in 2012 was triggered by an escalation in threats from the Badr Organisation, a Shia militia group, seeking to usurp the land he leased from the Iraqi government. Country information indicates that while the Badr Organisation pledged to disarm following the government's 2003 crackdown on militia groups, the 10,000-strong militia reportedly remained armed and continued to operate mainly in Shiite-controlled southern Iraq, where its representatives dominate a number of regional governments. I accept that the Badr Organisation may have had an active presence in the applicant's home city of Najaf, however country information indicates that the attention of Shia militia groups, including parts of the Badr Organisation, is more focussed now on the much larger issue of the fight against Daesh.
[12]The applicant claims that in the days before his departure from Iraq, the Badr Organisation shot and killed his farm animals and intensified their shooting at his house at night. This was not the reason he provided at the entry interview on 26 October 2012, thirteen days after his arrival at Christmas Island, when asked why he left Iraq. In response the applicant made no mention of the Badr Organisation, stating:
They always call us Bidoon, even though I have Iraqi citizenship. My children had inferiority complex. My son, [...] graduated in Psychology and Social Sciences and was unable to get a job. We were always oppressed because of our ethnic group even though I have the Iraqi citizenship. Still after twenty-one years, they are calling me Bidoon.
[13]When asked at the same interview what would happen to him if he returned to Iraq, the applicant again made no mention of the Badr Organisation, stating:
I will not go back to Iraq. Twenty years they are still calling me Bidoon ...
[14]At the visa interview in 2015 the applicant explained that he did not mention threats from the Badr Organisation at the October 2102 entry interview because that interview occurred shortly after his arrival at Christmas Island. He said that he could not think clearly at the time because his psychological condition was badly affected by the August 2012 announcement regarding regional processing for asylum seekers who arrived by boat. In the submission to the IAA the applicant claims the entry interview lacked the detail required in a protection visa interview and reiterated that he was in a very stressful situation at the time. As the entry interview occurred thirteen days after the applicant's arrival at Christmas Island, I give little weight to this explanation and do not accept as plausible the applicant’s reasons for not mentioning the Badr Organisation in his entry interview. Notwithstanding that the entry interview did not explore detailed claims for engaging Australia's protection, l consider that given the significance of this aspect of the claim, the applicant would be expected to have identified the Badr Organisation when asked why he departed Iraq. As he did not, I do not find plausible the claim raised at the visa interview regarding threats to the applicant by the Badr Organisation from 2009 onwards. As I have found the threats from the Badr Organisation not to be plausible, I do not accept that the Badr Organisation continues to pressure the applicant’s family in Iraq about his whereabouts. As a result I am not satisfied that the applicant faces a real chance of persecution from the Badr Organisation.
[15]The applicant claims he was accused of being a spy, an anti-Shia Sunni and a Ba’athist collaborator, but apart from accusations from local Iraqi neighbours and the claims that his farm was shot at and he was threatened, he did not claim that these imputations place him at risk in other ways. I have found not to be plausible that the applicant was threatened by the Badr Organisation from 2009 onwards. In light of this I do not accept that his farm was shot at, that he was threatened or that he received accusations from local Iraqi neighbours. I find that the applicant does not face a real chance of persecution from the Badr Organisation or any other person as a result of imputations he is a spy, an anti-Shia Sunni and a Ba’athist collaborator.
[16]I accept that the applicant may be perceived as being a member of a particular social group comprising wealthy landowners in Iraq, however I am not satisfied on the evidence that the applicant faces a real chance of harm because of this. The applicant claims the Badr Organisation wanted to forcibly acquire his land and made threats against him, however I have found these threats not to be plausible. The applicant commenced farming land in Iraq in 1993 initially on land leased from a private citizen and from 1997 on a large tract of land leased from the Iraqi government. There is nothing to suggest that he has faced harm in the past due to his perceived status as a wealthy landowner or that he faces harm in the reasonably foreseeable future from the Badr Organisation or any other person. As a result of this I am not satisfied that the applicant faces a real chance of persecution due to being perceived as a wealthy landowner.
(footnotes omitted and errors in original)
Once again, I prefer the Minister’s submissions in relation to these grounds.
The applicant first seeks to impugn the Authority’s reasoning at [11][58]. It is said that the Authority found that the applicant’s claims were implausible because the Badr militia is more focussed now on fighting Daesh[59].
[58] CB 186.
[59] See applicant’s submissions at [20] and [21].
The difficulty for the applicant is that, read fairly, this paragraph of the Authority’s reasons contains no such finding, implicit or otherwise. While the applicant puts the submission on the basis of an express finding, the particulars to the ground acknowledge that any such finding was made “implicitly”.
Rather, what the Authority is doing in this passage is identifying both the applicant’s claims and relevant country information about the Badr militia, both as to its history and its current activities. There is nothing in this passage to suggest that the Authority engaged at all in the reasoning process that the applicant seeks to attribute to it. There is no express statement to that effect, and there are no words or passages that necessarily imply it. This is especially so in circumstances where the Authority moves immediately to consider the plausibility of the applicant’s claims. The applicant’s first challenge cannot be made out.
The applicant next challenges the rationality or reasonableness of the Authority’s rejection of the applicant’s claims as not plausible. It is said[60] that the Authority’s reliance on the applicant’s failure to make any mention of the Badr militia in his entry interview “place[d] disproportionate or excessive weight” on that fact.
[60] applicant’s submissions at [26]-[27].
The applicant cites Li[61] where Hayne, Kiefel and Bell JJ, after referring to what said by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[62], stated:
… Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
[61] at [72].
[62] (1986) 162 CLR 24 at 41.
The High Court in Li was concerned with the reasonableness of the exercise of a statutory discretion. That is not this case, although I do not rule out the possibility of the principle in Li being applied to fact finding.
More importantly, for present purposes, a decision is not irrational or illogical if reasonable minds could differ as to the conclusions to be drawn from the evidence[63].
[63] Minister for Immigration v SZMDS (2010) 240 CLR 611, [2010] HCA 16 at [130] per Crennan and Bell JJ, see also at [78] per Heydon J.
In this case, both the delegate and the Authority drew adverse conclusions against the applicant with respect to his claims to fear harm from the Badr militia because he made no mention of this in his entry interview. Irrespective of whether this is a process of reasoning that might or would be adopted by every decision maker, it cannot be characterised as irrational or illogical. To the contrary, the time when an applicant first advances a particular claim to be a refugee is often a relevant factor in the assessment of the plausibility or credibility of that claim. In the circumstances of a particular case, it may be critical. Here, the Authority relied on the discrepancy between the significance of the claim (that is, it was central to his claim in his visa application to be a refugee) and the failure to mention it at all in his entry interview. As the Authority said, given its significance, the applicant “would be expected to have identified the Badr Organisation when asked why he departed Iraq”[64]. This omission rendered the claims implausible to the delegate and the Authority. The contention that this is a decision at which no rational or logical decision maker could arrive on the same evidence cannot be sustained.
[64] CB 187 [14].
Another issue
At the trial of this matter I raised with the representatives an issue which concerned me regarding [7] of the Authority decision[65] when read with the decision of the delegate at [48][66] and [58]-[62]. I invited the parties to make post-hearing submissions on that issue. There is a maxim used by old system title conveyancing practitioners in New South Wales that one should not stir in muddy pools. The post-hearing submissions of both the Minister and the applicant, in effect, invoked that maxim.
[65] CB 185.
[66] CB 131.
I have decided that it is unnecessary to deal with the issue. It was not raised by either the applicant or the Minister in these proceedings. Rather, it was raised by me and I understand that the Minister’s Department is now alert to the issue. I will say nothing further about it.
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 October 2017
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