BUK17 v Minister for Immigration

Case •

[2020] FCCA 1890

•

13 July 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1890
Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA erred in the way it considered whether exceptional circumstances existed in relation to new information pursuant to s.473DD of the Migration Act 1958 (Cth) (the Act) – whether the IAA acted unreasonably in not considering whether to exercise its power pursuant to s.473DC of the Act – whether the IAA acted unreasonably in not exercising its power pursuant to s.473DC of the Act – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 57, 425, 473CC, 473DB, 473DC, 473DD,

476, pt.7, pt.7AA

Cases cited:

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221; (2017) 159 ALD 417

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192;

(2017) 257 FCR 148; (2017) 162 ALD 1

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111; (2017) 158 ALD 198

Plaintiff M174/2016 v Minister for Immigration and Border Protection

[2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481;

(2018) 353 ALR 600

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902;

(2018) 264 FCR 667

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111;

(2018) 162 ALD 442

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203

CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333

DLB17 v Minister for Home Affairs [2018] FCAFC 230

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 10

SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15

Lee v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 464

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123;

(2009) 113 ALR 46; (2009) 113 ALD 46

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195;

(2006) 156 FCR 419; (2006) 93 ALD 333

SZANK v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1478

BKY17 v Minister for Immigration and Border Protection [2019] FCA 487

FGC17 v Minister for Home Affairs [2019] FCA 559

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

(2017) 253 FCR 475

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

(2018) 258 FCR 551

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222;

(2018) 267 FCR 69

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32;

(2018) 253 FCR 526; (2018) 357 ALR 474

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134;

(2019) 366 ALR 665

Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64

BJK17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2019] FCAFC 171

FSG17 v Minister for Immigration, Citizenship, Migrant Services and 

Multicultural Affairs [2020] FCAFC 29

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

(2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408;

(2018) 75 AAR 434; (2018) 163 ALD 1

Minister for Immigration and Citizenship v Li [2013] HCA 18;

(2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225;

(2013) 139 ALD 181

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11;

(2016) 237 FCR 1; (2016) 329 ALR 491

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28;

(2016) 240 FCR 158

Minister for Immigration & Citizenship v SZGUR [2011] HCA 1;

(2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223;

(2011) 119 ALD 1

Plaintiff M64/2015 v Minister for Immigration and Border Protection

[2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197;

(2015) 327 ALR 8; (2015) 148 ALD 206

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114;

(2018) 261 FCR 35

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34;

(2019) 93 ALJR 1091; (2019) 373 ALR 196
Applicant: BUK17
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 1258 of 2017
Judgment of: Judge Nicholls
Hearing date: 10 June 2020
Date of Last Submission: 10 June 2020
Delivered at: Sydney
Delivered on: 13 July 2020

REPRESENTATION

Counsel for the Applicant: Mr Zipser
Solicitors for the Applicant: Stamford Law Pty Ltd
Solicitors for the Respondents: Clayton Utz
Legal Representative for the Respondents: Ms Burnett

ORDERS

  1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

  2. The application made on 26 April 2017, and as otherwise amended, is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1258 of 2017

BUK17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 26 April 2017, and as further amended, seeking review of the decision of the Immigration Assessment Authority (“IAA”) which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (“SHEV”), a protection visa (“the visa”).

  2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB” – “RE1”), and the affidavit of Mr Ali Alkafaji, solicitor made on 5 June 2020.

  3. The applicant also filed the affidavit of Mr Alkafaji made on 21 May 2020. It annexed various country information reports (see further below). The Minister did not object to the affidavit being read into evidence. But did question its relevance to a fact in issue. I agree with the Minister. It is trite to say that this Court cannot substitute its own findings of fact for those of the IAA. In any event, the affidavit was read into evidence for the limited purpose of allowing the applicant to explain his argument in relation to ground one.

Background

  1. The applicant is a citizen of Iraq, and a Sunni Muslim (items 17 and 18 at CB 105 and item 33 at CB 107). He arrived in Australia on 5 September 2012 as an “unauthorised maritime arrival” (item 46 at CB 112 and CB 73). The applicant was interviewed on arrival on 24 September 2012 (“the arrival interview”) (CB 1–CB 12). The applicant was then interviewed (“the entry interview”) on 3 December 2012 by a government official (CB 13–CB 27).

  2. He initially submitted a protection visa application to the Minister’s department (“the department”) dated 14 August 2013 (CB 28–CB 70). However, the application was found to be invalid as the prohibition under s.46A of the Act had not yet been lifted in regard to the applicant (CB 71–CB 77 and CB 217). His (valid) protection visa application was subsequently received by the Minister’s department on 13 April 2016 (CB 92–CB 136; see also CB 215). Attached to the application was a statement, which outlined the applicant’s claims to fear harm (CB 132–CB 136).

  3. The applicant stated that he feared persecution in Iraq as a Sunni Muslim living in a predominately Shia area ([18] at CB 135). In 2007, the applicant’s uncle was killed by militia ([7] at CB 133). He received a letter in 2011 which threatened him and his family ([8] at CB 133). He witnessed bomb explosions in a market in 2012 which he believed were targeting Sunni Muslims ([9] at CB 133).

  4. Prior to leaving Iraq in 2012 he was stalked by a stranger. He also received a letter saying that he “was not welcome in Iraq, that [he] should relocate and take [his] family with [him], that [he] was not a desirable person as [he] was Sunni Muslim and that [he] had been seen in the Mosque too often and this was not something that ‘we’ want.” ([10] at CB 133).

  5. He further claimed that in 2013 his “case officer” contacted the Iraqi Consulate in Australia to verify personal details. He feared that he would be “…treated badly and will not be assisted by the authorities” if he returns to Iraq because he will be perceived as a “traitor” ([20] at CB 135). He also claimed that while living in Australia he had received threatening WhatsApp messages from Iraqi mobile numbers ([21] at CB 135). The applicant claimed that the authorities in Iraq would not protect him (CB 135).

The Delegate

  1. The applicant was invited to, and attended, an interview with the delegate on 14 September 2016 (CB 150–CB 152 and CB 174). On 7 October 2016, the department wrote to the applicant’s migration agent, inviting the applicant to comment on information pursuant to s.57 of the Act (CB 166–CB 169). This related to an identity card that the applicant had provided. The delegate was ultimately satisfied that the applicant had provided a reasonable explanation for providing a bogus document to the department (CB 186).

  2. On 17 November 2016, the delegate refused to grant the applicant a protection visa (CB 182–CB 196).

  3. The delegate did not accept that the applicant received threatening messages since arriving in Australia (CB 192). The delegate also did not accept that an officer of the department contacted the Iraqi Consulate concerning the applicant (CB 192).

  4. The delegate accepted that the applicant had received a threatening letter, in 2011 stating that the applicant and his family should leave their home (CB 191). The delegate also accepted that prior to his leaving Iraq he was followed by a stranger and threatened (CB 191). The delegate further accepted that the applicant’s uncle and his uncle’s brother were killed.

  5. However, given the length of time which had passed the delegate did not “…believe their deaths heighten the profile of the applicant when assessing the future chance of harm faced by the applicant.” (CB 193).

  6. After taking country information into account the delegate concluded that the applicant did not face “a real chance of persecution or serious harm based on his religious beliefs.” (CB 193.6; see also CB 193.7–CB 194.2).

  7. The delegate found that the applicant was not owed protection as he did not satisfy the requirements of s.36(2)(a) or s.36(2)(aa) of the Act (CB 194 and CB 196).

The IAA

  1. The matter was referred to the IAA for review on 25 November 2016 (CB 203–CB 204). On 15 December 2016, the applicant’s registered migration agent (also the solicitor on record before the Court) was appointed to represent the applicant (CB 210). On 18 December 2016, the migration agent made submissions to the IAA (CB 205–CB 209).

  2. On 22 March 2017, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 211–CB 234).

  3. Under the heading “Information before the IAA” the IAA outlined the information to which it had regard. It noted at ([3] at CB 215) that it had “…regard to the material referred by the Secretary under s.473CB” of the Act. The IAA referred to the applicant’s submissions of 18 December 2016 at [4]–[8] of its decision record (see CB 205–CB 209). The IAA noted that the submissions contained some legal argument, and that, that “aspect of the submission” did not constitute new information ([4] at CB 215).

  4. In its decision record the IAA noted the following from the applicant’s representative’s submissions ([5] at CB 215):

    “• The applicant’s ‘Facebook’ account was linked to his ‘WhatsApp’ account and this could be how Shia militia were able to contact the applicant via the ‘WhatsApp’ application. [1]

• The applicant obtained a new mobile phone number when he lost his mobile phone and this explains why he stopped receiving threats via ‘WhatsApp’ on his mobile phone. [2]

• The interpreter used during the SHEV interview conducted on 14 September 2016 did not convey the real meaning of the applicant’s words because of the difference in the applicant’s and the interpreter’s dialects. This explains why the interpreter incorrectly translated the words ‘case manager’ as ‘case officer’ during the SHEV interview, giving the false impression that the applicant claimed that an officer of the department had contacted the Iraq consulate, whereas the applicant had intended to say that it was his ‘case manager’ from a settlement services provider who had contacted the Iraqi consulate. [3]

• An excerpt from a January 2016 ‘Independent’ newspaper article referring to the deterioration in the security situation in Basra due to the redeployment of troops once based in the area to other parts of Iraq to assist in the fight against ISIS. [4]

• A link to an October 2016 United States Department of State Overseas Security Advisory Council (OSAC) report on Crime and Safety in Basra.” [5]

[Numbers added for ease of reference.]

  1. The IAA found that the new information related to events that occurred before the delegate’s decision and country information reports that were published before the date of the delegate’s decision ([7] at CB 215–CB 216).

  2. The IAA noted that the applicant was represented when the application was made, and during the interview with the delegate ([7] at CB 215–CB 216). The IAA was “…not satisfied that there [were] exceptional circumstances to justify the consideration of the new information submitted.” ([8] at CB 216).

  3. The IAA summarised the applicant’s claims to fear harm at [9] of its decision record (CB 216–CB 217). The IAA relevantly noted:

    “…

· From 2004 he and his family began to receive verbal threats telling them to leave the area, which they did not take seriously. Around the end of 2011 his family received a written threat telling him and his family to leave the house. He and his family started to fear death after they received this threat.

…

· He was under surveillance for around a year before he left Iraq. He became aware of this when a friend told him that he was being watched. After that, he noticed that he was being followed. The people following him verbally abused and threatened him. He received a threatening letter or threats indicating that he was not welcome in Iraq and that he should leave Basra and take his family with him. The letter or threats referred to his regular attendance of mosque. He decided to leave Iraq because of the threats against him and his family.

…

· In Australia he has received threatening messages on his mobile phone through the ‘WhatsApp’ application. The messages are from Iraqi mobile numbers and state that if he returns to Iraq, he will be killed.”

  1. The IAA was concerned about the inconsistencies in the applicant’s evidence concerning the 2007 death of his uncle and his uncle’s brother ([20]–[26] at CB 219–CB 220). However, the IAA found that given country information which indicated that there were a large number of deaths resulting from sectarian violence during this period, it accepted that the applicant’s uncle and the uncle’s brother were killed because of their religion ([25]–[26] at CB 219–CB 220).

  2. The IAA did not accept that the applicant witnessed the deaths, or that he “was or is of any particular adverse interest to the perpetrators of this attack on the basis of his relationship to the victims.” ([26] at CB 220).

  3. In a Statutory Declaration attached to an earlier invalid visa application, and at his arrival interview, the applicant claimed that one of his uncles had been kidnapped. The IAA did not accept that his uncle was kidnapped by Shia militia because the applicant had not mentioned the kidnapping in any document or evidence subsequent to his invalid visa application ([27]–[29] at CB 220).

  4. The IAA accepted that “the applicant witnessed an explosion or explosions at some point in around 2012” ([32] at CB 221). But the IAA did not accept that the explosion killed or injured anyone or that it was targeted at Sunni civilians ([32] at CB 221).

  5. Given inconsistencies in the applicant’s evidence, the IAA did not accept that the applicant had been ([36] at CB 221):

    “…watched and followed for a period before leaving Iraq, that he was verbally abused and threatened by those who followed him, or that he received a threatening letter addressed to him from those who were following him or their associates telling him to leave…”

  1. The IAA did not accept that the applicant’s family had moved because of fear of Shia militias. The IAA found that the applicant’s family continued to reside in the applicant’s local area ([42] at CB 222). The IAA also did not accept that the applicant, or his family, “…was or is of any adverse interest to any armed group” because of the employment of any of the applicant’s family members ([45] at CB 223).

  2. The IAA noted that before the delegate the applicant was unable to show how the Shia militia groups “…would have been able to obtain his Australian mobile phone number.” ([46] at CB 223). He was also unable to provide copies of the “claimed threatening messages.” ([46] at CB 223). The IAA did not accept the applicant’s claims concerning the WhatsApp messages ([48] at CB 223).

  3. The IAA further concluded that the applicant, and his family members, were not of “…any particular adverse interest to Shia militia groups for any reason.” ([49] at CB 223).

  4. The IAA noted that the applicant’s evidence concerning the discrimination he faced was “general in nature.” ([52] at CB 224). During the interview the delegate gave the applicant the opportunity to provide details of specific incidents, however no details were provided ([54] at CB 224). The lack of specificity led the IAA to doubt the veracity of the claims ([54] at CB 224).

  5. The IAA accepted that the applicant had experienced verbal harassment and threats from Shia students while he was at school. However, it did not accept that the discriminatory treatment experienced by the applicant extended beyond this ([56] at CB 224).

  6. The IAA accepted that the applicant experienced “infrequent occurrence[s] of epileptic seizures”. As the IAA did not accept that the applicant had witnessed the death of his uncle in 2007, it also did not accept that witnessing such event first triggered the applicant’s epilepsy ([61] at CB 225).

  7. The IAA found that it was improbable that the applicant’s departmental case officer contacted the Iraqi Consulate. The IAA further found that ([64] at CB 226):

    “…even if I were to accept this occurred, or that the consulate was contacted by any other person in relation to the applicant, having regard to the evidence before me, I do not accept that as a result of such contact the Iraqi Government would perceive the applicant to be a traitor or would mistreat him on the basis that he had left Iraq and applied for protection in Australia.”

[Emphasis Added.]

  1. The IAA found that there was not a real chance that the applicant would experience harm because of armed Shia groups ([67]–[81] at CB 226–CB 229).

  2. The IAA found that there was not a real chance that the discrimination the applicant may face would cause him to be “seriously harmed” ([87] at CB 230).

  3. The IAA found that there was not a real chance that the applicant would be harmed by an armed Sunni group, or that he would be recruited by a Sunni group ([88]–[91] at CB 230–CB 231).

  4. After taking into account country information, the IAA found that there was not a real chance that the applicant would be harmed because of the security situation in his local area ([92]–[96] at CB 231–CB 232).

  5. The IAA found that there was no credible evidence to demonstrate that the applicant would experience harm upon returning to Iraq as a failed asylum seeker ([101] at CB 232).

  1. The IAA further held that a “combination” of the applicant’s circumstances would not expose the applicant to a real chance of serious harm in his local area ([102] at CB 233).

  2. The IAA found that the applicant was not owed protection pursuant to s.36(2)(a) of the Act ([103] at CB 233).

  3. Although the IAA accepted that the applicant may face discrimination, it was not satisfied that such treatment constituted significant harm ([106]–[109] at CB 233–CB 234). Based on findings of fact explained earlier in its decision record the IAA was also not satisfied that there was a real risk that the applicant would experience significant harm if he returned to Iraq ([110] at CB 234).

  4. The IAA found that the applicant was not owed protection under s.36(2)(aa) of the Act ([111] at CB 234).

Application to the Court

  1. I granted leave for the applicant to rely on the further amended application dated 14 May 2020. The Minister neither opposed nor consented to leave being granted. The Minister confirmed before the Court that he was not prejudiced by the late filing of the amended application. I was satisfied on the evidence of the applicant’s solicitor (the affidavit of Mr Alkafaji of 5 June 2020) that the applicant had provided a satisfactory explanation for the late presentation of these grounds.

The Amended Application

  1. The grounds of the applicant’s further amended application to the Court are in the following terms:

    “1. In December 2016 the applicant’s representative provided new information to the Immigration Assessment Authority (“the IAA”). The IAA, in its decision dated 27 March 2017 at [5]-[8], addressed the new information. The IAA found at [8], on application of s 473DD of the Migration Act 1958 (Cth), that it was “not satisfied that there are exceptional circumstances to justify consideration of the new information”. The IAA fell into jurisdictional error by adopting an overly narrow approach to the meaning of “exceptional circumstances in s 473DD. In particular, the IAA:

a) focused on the fact that the applicant failed to take up opportunities to provide the information to the Department before the Minister’s delegate made a decision in November 2016; and

b) failed to consider other matters relevant to “exceptional circumstances”, such as whether parts of the information were credible personal information, and the probative value of the information: see BVZ16 v Minister [2017] FCA 958 at [39] – [48].

2. The Minister’s delegate found in a decision in November 2016 that “the applicant and his family received a letter with the threat to leave their home in Southern Iraq at the end of 2011” and “one month prior to leaving Iraq the applicant was followed by a stranger and was ultimately threatened”: CB 191. The IAA, in contrast, found at [42] that the applicant’s family did not receive any threat letter and at [36] that the applicant was not subject to surveillance and threatened one month prior to leaving Iraq. Where the Minister’s delegate makes a finding favourable to an applicant concerning a material matter and the IAA is considering making a finding adverse to the applicant concerning the matter, the IAA, acting reasonably, should exercise its power under s 473DC of the Migration Act to give the applicant an opportunity to comment on its concerns before the IAA makes a determination. The IAA fell into jurisdictional error by failing to exercise its power under s 473DC to give the applicant an opportunity to comment on these two matters, or alternatively by failing to consider whether to exercise such power.”

Ground One: The Applicant’s Argument

  1. Ground one of the application asserts legal error in the way the IAA considered, pursuant to s.473DD of the Act, whether exceptional circumstances existed in relation to the new information in the form of the items in the applicant’s migration agent’s submissions (as set out at [5] of its decision record – see [19] above) such as to require the IAA to consider the new information.

  2. In his submissions before the Court, the applicant explained that item [3] (as identified at [19] above) was not relied upon as no jurisdictional error arose from the IAA’s consideration of this item.

  3. For the remaining items, and noting that the applicant’s submissions were not clear on this point, [1] and [2] can be considered together, as can items [4] and [5]. Items [1] and [2] are the applicant’s explanation, through his representative’s submissions, of the matters arising from the delegate’s decision involving the applicant’s claim to have received threats through the “WhatsApp” application. Items [4] and [5] relate to country information concerning the security situation in the applicant’s local area in Iraq.

  4. Ground one of the application, and the argument in explanation,  directed attention to [6]–[8] of the IAA’s analysis (at CB 215–CB 216):

    “6. Section 473DD requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant’s claims.

7. All the new information relates to events that predate the delegate’s decision or reports published prior to the delegate’s decision. The applicant was represented in the SHEV application process and during the SHEV interview. The claimed threats received via ‘WhatsApp’ were discussed in detail during the SHEV interview, including the specific issue of how the Shia militia were able to contact the applicant in this way. No concerns regarding interpretation were raised by the applicant or his representative during the SHEV interview conducted on 14 September 2016. I note that there is recent information before me referring to the security situation in the south of Iraq, including Basra province.1 No further information in relation to these matters was provided to the delegate in the approximately two month period following the SHEV interview until the delegate’s decision of 17 November 2016.

8. Having carefully considered the circumstances in this case, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information submitted.”

[Footnote Omitted.]

  1. Section 473DD of the Act was at the relevant time, in the following terms:

    “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.”

  1. The gravamen of the applicant’s argument is that the IAA adopted an overly narrow approach to the meaning of “exceptional circumstances” in s.473DD of the Act.

  2. This was said to be because it simply relied on the fact that the applicant had not provided the new information to the delegate when he had the opportunity to do so. The complaint is that the IAA should have taken into account other relevant considerations in assessing whether exceptional circumstances existed such that it should consider the new information.

  3. The applicant relied in particular on BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) at [8]–[9], [34], [39], [41]–[43], and also CHF16 v Ministerfor Immigration and Border Protection [2017] FCAFC 192 (“CHF16”) at [44] and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176  (“BBS16”) at [102]–[112]. In particular as set out in the applicant’s written submissions:

    1.  BVZ16 at [9]:

    “…one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional”.

2.  BVZ16 at [34]:

“Having rejected both explanations for the late disclosure of the new information, the IAA member then immediately expressed her conclusion in [9] that there were not exceptional circumstances justifying the consideration of the new information. In these circumstances, I do not consider that it can be concluded that the IAA member considered the significance of the new information in the light of the appellant’s personal circumstances more generally or the way in which the claims in the new information related to the earlier claims made by the appellant.”

3.  BVZ16 at [41]:

“Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional…”

4.  CHF16 at [44]:

“In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.”

[Emphasis from applicant’s written submissions removed.]

  1. In this light, in relation to the new information, the applicant submitted as follows. The applicant had claimed that he had received threatening messages on his WhatsApp account. The new information (items [1] and [2]) sought to explain difficulties with this claim identified by the delegate.

  2. In relation to item [1] the new information was said to be that militia members in Iraq may have obtained his Australian mobile phone number from his Facebook account which was linked to his phone number.

  3. In relation to item [2] the new information was said to be that the applicant had changed his mobile phone number after he lost his phone. This was put in answer to the delegate’s finding that at the interview the applicant could not explain why he no longer received threatening telephone calls after he obtained a new phone.

  4. In relation to items [1] and [2] the applicant submitted that the IAA failed to consider “whether the new information was credible personal information, and the probative value of the new information.”

  5. In relation to items [4] and [5], the applicant’s submissions to the IAA referred to a 2016 US State Department Report (“USOSAC”) which described the crime rate in Basra as critical. The submissions also referred to the delegate’s reference to a UK Home Office report in relation to this matter. The submissions also referred to a UNHCR report. The submission to the Court was that the IAA did not consider aspects of this information in relation to the question as to whether it was safe for the applicant to go to Basra.

  6. The alleged legal errors in regard to items [4] and [5] were said to be that the IAA found there were not “exceptional circumstances” so as to consider the new information because the information predated the delegate’s decision. The argument is that the country information, as annexed to Mr Alkafaji’s affidavit of 21 May 2020, had greater relevance to the disposition of the applicant’s claim, than the country information to which the IAA referred. That was said to be because the later reports to which the IAA gave greater weight were general in nature, whereas the earlier report was specific on the question of violence in Basra.

  7. The IAA did give greater weight to the country information it took into consideration rather than the USOSAC report. However, the IAA also reasoned that despite opportunity, the applicant, who was represented by a registered migration agent, did not give this information to the delegate. This was the case even in the two months available after the interview at which these matters were raised. As to the choice of country information see [103] below.

  8. I note, that no satisfactory challenge was made to the finding that the information (all items) predated the delegate’s decision and could have been provided to the Minister (with reference to s.473DD(b)(i) of the Act) at an earlier time.

  9. The applicant explained that he was not relying on any failure by the IAA to take into account the matters at s.473DD(b)(ii) of the Act in relation to items [4] and [5], but rather that there were “other relevant circumstances” that the IAA should have taken into account.

  10. Given that his argument appeared not to relate to any relationship between s.473DD(a) and s.473DD(b) of the Act, which, with respect, I understood to be the particular focus of the consideration in BVZ16 at the paragraphs on which the applicant otherwise said he relied, I asked the applicant to explain, how BVZ16 related to his argument.

  11. The applicant submitted that at [41] of BVZ16 the Court stated:

    “Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances.”

  1. The submission was therefore that there were other relevant circumstances (other than what was stated in s.473DD(b) of the Act) that the IAA should have taken into account in considering the question of exceptional circumstances.

  2. Later in submissions before the Court, the applicant said he wanted to “backtrack” on this, and sought to explain that the USOSAC report could fit within what is set out in s.473DD(b)(i) of the Act.

Consideration: Ground One

  1. The applicant’s ground is not made out for the following reasons.

  2. One, what underpins the applicant’s ground, and certainly his submissions in explanation, is the assumption that s.473DD of the Act is a facilitative mechanism by which applicants can provide new information to the IAA.

  3. Parts of the applicant’s submissions appeared to assume that s.473DD of the Act was in Part 7 of the Act, and not in Part 7AA. As the High Court, with respect, made clear in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”) (at [22]) the “primary rule” in s.473DD is that the IAA must not consider new information in the sense of requesting or accepting new information. This included not interviewing the applicant.

  4. As was said in BZC17v Minister for Immigration and Border Protection [2018] FCA 902 (at [52]) the requirements of s.473DD(a) and s.473DD(b) are exceptions to this primary rule. Its application is subject to the narrow circumstances as dictated by s.473DD.

  5. Two, while not entirely clear given the “backtracking” submission, to the extent that the applicant sought to rely on the relationship between s.473DD(a) and (b), then it is important to note that the requirements set out there are cumulative.

  6. That is, the conditions in (a) and one of either conditions in (b)(i) or (b)(ii) must apply before it can be said the requirements of s.473DD are met. (Plaintiff M174 at [31], [78], [100], BBS16 at [102] and AQU17v Minister for Immigration and Border Protection [2018] FCAFC 111 (“AQU17”) at [13]).

  7. As the Minister submits where new information has been provided by, or on behalf of an applicant, the applicant must satisfy the requirements of both (a) and (b) of s.473DD (Plaintiff M174 at [31], BRA16v Minister for Immigration and Border Protection [2018] FCA 127 (“BRA16”) at [26] and CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 (“CAQ17”) at [122]–[124]).

  8. The applicant’s initial submission was that he was not relying on (b). It was not clear whether that was put in relation to all the items or just [1] and [2]. In any event, the applicant’s initial submission (subsequently “backtracked”) that he was not relying on s.473DD(b) did not assist in making out his ground.

  9. Three, the applicant’s written submissions (not pressed on this point before the Court) proceeded from the proposition that the IAA was obliged to have considered s.473DD(b)(i) and (b)(ii) because it was legally required to do so in every case in assessing “exceptional circumstances”.

  10. I do not respectfully comprehend that to be the law. While there may be some cases where the circumstances presented are such that the matters in s.473DD(b) should be considered, in the current circumstances the applicant did not satisfactorily explain how this applied to his case (AQU17 at [14]–[16] and CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [26]).

  11. Four, in the current case the IAA found, in effect, that it could not be satisfied that the new information could not have been provided to the Minister before the delegate made the decision, including in the two months between the interview with the delegate and the making of the delegate’s decision. Nor in relation to items [1] and [2], that the information was not previously known to the applicant.

  12. It is not the situation that in every case the IAA must make an express finding in relation to s.473DD(b)(ii). The matters in s.463DD(b)(ii), (and for that matter s.473DD(b)(i)) are not mandatory relevant considerations in considering exceptional circumstances. (See for example DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22] and AQU17 at [14]).

  13. Five, in the current matter the applicant’s argument, ultimately, was that in considering the matter at s.473DD(a), the IAA should have considered other relevant considerations. It was not clear whether this was a reference to the matters set out at s.473DD(b)(ii) (in relation to items [1] and [2]), or that it did not consider the matter at s.473DD(b)(i), or it did not consider all the “other relevant considerations” in relation to exceptional circumstances generally.

  14. However, what also follows from what is set out at [75]–[76] above, there is no requirement for the IAA to consider s.473DD(a) before s.473DD(b). As was found in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 (“AUH17”) (at [33]), if on the evidence, s.473DD(b) is not met then that suffices for the prohibition, the primary rule, in s.473DD to stand BRA16 (at [26]).

  15. Six, nor is the IAA required to give extensive reasons for its finding concerning the new information.  As was said in CAQ17 at [119]–[120] brevity or generality in reasoning does not necessarily indicate error, or that matters that were not expressly referred to by the IAA were not in fact considered.

  16. Seven, as, with respect, the High Court stated in Plaintiff M174 (at [30]) what constitutes “exceptional circumstances” is: “…inherently incapable of exhaustive statement”. While to be exceptional, a circumstance need not be rare, or for that matter unique, it: “…cannot be one that is regularly, or routinely, or normally encountered” (Plaintiff M174 at [30]).

  1. In the current case, the applicant has not satisfactorily explained how his circumstances, what he says the IAA should have considered, do not fall within that description.

  2. As the Minister submitted, the IAA is not generally obliged to evaluate the credibility of new information, or even its significance to the applicant’s case “…absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary.” (AQU17 at [17]).

  3. Beyond referring to “other relevant considerations”, and then referring to matters of credibility, the applicant made no attempt, let alone a satisfactory attempt, to explain what made his case “unusual or out of the ordinary.”

  4. Eight, it is not, in the relevant statutory context, necessarily appropriate to speak of an onus, or burden, on the applicant in matters of this type. However, the wording of s.473DD(b) (in its “chapeau”) does state that “…the referred applicant satisfies the Authority that, in relation to any new information…” that the conditions in s.473DD(b)(i) or (b)(ii) are met.

  5. While s.473DD(a) talks of the IAA being satisfied that exceptional circumstances exist, s.473DD(b) talks of the referred applicant satisfying the IAA. In this light as was said in AUH17 (at [33]) the words of the chapeau require “some material…by way of explanation”. In context, this is to be furnished by the applicant.

  6. Nine, in the current case, I agree with the Minister that the IAA did not adopt “an overly narrow approach” to the meaning of exceptional circumstances for the purposes of s.473DD of the Act.

  7. In light of the principles set out above, in considering whether exceptional circumstances existed in relation to the new information, the IAA was required to look at the applicant’s circumstances and determine if there was something that raised his case to “out of the ordinary”. Noting again that the primary rule in s.473DD is that the IAA must not take new information into account unless both ss.473DD(a) and (b) are met.

  8. As set out above, in the current case the applicant’s representative’s submissions sought to provide new information to the IAA. Those submissions are reproduced at CB 206–CB 209.

  9. As also set out above, the delegate had made certain findings concerning the applicant’s claims to have electronically received threatening messages. In the submissions the applicant’s representative sought to address what the delegate found were unsatisfactory, or unexplained aspects of the applicant’s evidence concerning his WhatsApp profile and mobile phone (CB 206).

  10. There is nothing in the representative’s submissions to even indicate, let alone satisfactorily explain why, given the relevant statutory regime, there were exceptional circumstances such as to cause the IAA to consider this new information, notwithstanding the primary rule in s.473DD (with reference to items [1] and [2]).

  11. Before the Court, the applicant submitted that the IAA should have looked at “other relevant considerations” (that is, other than what is at s.473DD(b) of the Act) in considering the matter of exceptional circumstances.

  12. However, before the IAA the applicant, who was represented by a registered migration agent, made no attempt to identify what those circumstances may be. Nor did he satisfactorily explain this before the Court.

  13. In the circumstances, the IAA looked at the situation as presented to it. That is, the applicant had ample opportunity, and with representation, to have raised this new information, at least in the two months after the interview with the delegate, before the delegate made the decision. He did not do so. Nor did the representative’s submissions explain this failure in the submissions to the IAA. Further, that the matter of the threatening messages was discussed and explained in some detail at the interview with the delegate.

  14. In the circumstances, there is nothing to indicate, nor did the applicant satisfactorily argue to the contrary before the Court, not to accept the IAA’s statement that it found that exceptional circumstances did not exist so as to consider the new information, after “[h]aving carefully considered the circumstances in this case” ([8] at CB 216).

  15. As also set out above, the applicant’s representative’s submissions also involved new information said to be the country information as identified above (CB 207–CB 209) (items [4] and [5]).

  16. The delegate had made reference in the decision record to the security situation being calmer in Basra than other cities in Southern Iraq. The applicant’s representative’s submissions referred to the USOSAC report of 2016, and to an excerpt from a January 2016 newspaper article.

  17. It is to be remembered that the applicant claimed, amongst other matters, that he feared harm if he were to return to Iraq because of violence in that country.

  18. The submissions sought to present new information, with reference to some country information reports, about the violence and safety situation in Iraq, and in particular Basra, which was in contrast to the finding made by the delegate (see CB 207–CB 209).

  19. The IAA considered the applicant’s claim to fear harm in Iraq because of violence. In this consideration, the IAA had regard to a number of country information reports (see “Security situation in Basra” at CB 231, and [92]–[96] at CB 231–CB 232 and footnotes 33–37 at CB 231).

  20. When the applicant’s submissions before the Court on this point are reduced to their essential core, the assertion of legal error was said to be that the IAA should have conducted a comprehensive and detailed analysis of the USOSAC report and compared its contents to the country information to which it did have regard.

  21. This immediately prompts reference to the principle that the choice of, and weight to be assigned to, country information is for the decision maker to determine, of course acting reasonably (NAHI  v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] and see also SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 at [62], Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27], Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45], NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81], (Young J), SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16].

  22. However for current purposes, the applicant’s submissions lost sight of the statutory regime in Part 7AA, and the role and place of s.473DD of the Act in that scheme as explained above.

  23. There was nothing in the representative’s submissions to the IAA to identify, let alone explain, what the relevant elements were, or what constituted the exceptional circumstances such that the IAA should not only have considered the new information, but also conducted a detailed and comparative analysis of it.

  24. Nor did the applicant satisfactorily explain this before the Court. The USOSAC Report may indeed have contained more information, than the reports to which the IAA had regard. This report may also have been amenable to a comparative analysis with the reports referred to by the IAA.

  25. But the critical and relevant question for current purposes is whether the IAA fell into legal error in its understanding and application of s.473DD of the Act.

  26. There is nothing in the evidence before the Court to show that the IAA misunderstood the operation of s.473DD of the Act. Nor did the applicant, either in his representative’s submissions, or his submissions to the Court, satisfactorily explain what other relevant factors it should have considered and failed to do so in finding that exceptional circumstances did not exist such that the “primary rule” in s.473DD of the Act did not apply.

  27. In all, ground one is not made out.

Ground Two: The Applicant’s Submissions

  1. Ground two of the amended application asserts that the IAA acted unreasonably. The ground was explained as follows.

  2. The delegate found that the applicant and his family had, at the end of 2011, received a letter containing a threat that they leave their house. Further, the delegate also found that one month prior to leaving Iraq in 2012 the applicant was followed by a stranger and threatened.

  3. However, the IAA found that in 2011 the applicant’s family did not receive such a threatening letter and the applicant was not followed and threatened one month prior to leaving Iraq in 2012.

  4. The applicant now submits that in this circumstance, where the IAA was considering making a finding adverse to the applicant, and contrary to the delegate, the IAA acted unreasonably in not considering whether to exercise its power, and in not exercising its power, pursuant to s.473DC of the Act to give the applicant the opportunity to comment on its concerns prior to making its decision.

  5. Section 473DC of the Act was at the relevant time in the following terms:

    “(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.”

  1. Before the Court, the applicant’s counsel acknowledged that this ground was “at the less compelling end of the range” of circumstances where the IAA may be found to have unreasonably failed to exercise its power under s.473DC of the Act.

  2. Counsel submitted that his instructions were to maintain ground two and that he had said all that could be said in the applicant’s written submissions.

  3. The approach utilised in the applicant’s written submissions can be summarised as follows.

  4. One, whether the IAA has failed to consider exercising the power in s.473DC of the Act (as in the applicant’s submission in the current case) is a question of fact that must be proved by the applicant (BKY17 v Minister for Immigration and Border Protection [2019] FCA 487 (“BKY17”) at [19] [the applicant used the incorrect citation in his written submissions but in context this was a reference to BKY17 [Federal Court], FGC17 v Minister for Home Affairs [2019] FCA 559 (“FGC17”) (at [25]–[26]).

  5. Two, there are a large number of Federal Court cases where that Court has considered the question raised by this ground (Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (“CRY16”); DGZ16 v Ministerfor Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”); DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 (“DYK16”); Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 (“DZU16”); CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (“CCQ17”); DPI17 v Minister for Home Affairs [2019] FCAFC 43; FGC17; Minister for Home Affairs v AYJ17 [2019] FCA 591; BKY17; BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 (“BJK17”); and FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 (“FSG17”)).

  6. Three, the principles enunciated in FSG17 (at [59]) and distilled from a number of other authorities as set out in the applicant’s submissions are:

    1. “As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate…”

    2. “However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant.”

  7. Four, examples of such circumstances as set out in the applicant’s submissions are:

    “An example is afforded by Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was necessary in order to complete the review: DGZ16 at [70].

Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicants demeanour at the interview and the delegates acceptance of certain claims by the applicant was based primarily on the delegates assessment of the appellants demeanour (DPI17 at [46]). Further, during the course of the delegate’s interview with the applicant, the delegate indicated that certain discrepancies in the applicants evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegates positive assessment of the applicants demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicants evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).”

[Errors in the Original.]

  1. The applicant’s submissions also referred to other exceptions as found in BJK17 (at [44]) and DYK16 (at [67]).

  2. What the applicant’s submissions drew from these authorities was that in determining whether the IAA’s conduct was legally unreasonable it was necessary to consider the IAA’s reasons for reaching a different conclusion to that of the delegate.

  3. As set out above, the applicant’s focus in submissions on this ground was in relation to the different findings made by the delegate and the IAA on the threat letter claim of 2011 and the 2012 threat claim.

  4. In relation to the 2011 threat claim, the applicant’s submissions directed attention to the IAA’s finding at [42]:

    “…the inconsistencies in the applicant’s evidence relating to the claimed threats received by his family leads me to conclude that they did not in fat [sic: fact] receive any written threat from a Shia militia group in 2011 or at any other point [in time]”.

[Items in square brackets were words added by the applicant.]

  1. The applicant’s submissions draw from what the IAA stated at [37]–[41] to submit that these reasons “suggest” that the IAA perceived there to be two inconsistencies.

  2. One, in his protection visa application of 14 August 2013, (which was found to be invalid) the applicant claimed that “on many instances” masked members of a militia group came to his house and threatened his family. The IAA found that the applicant did not repeat this claim in his subsequent (valid) protection visa application (with reference to [37]–[38] at CB 221–CB 222).

  3. The applicant submitted that the fact that the applicant did not repeat this claim is not an “inconsistency”.

  4. Two, in his interview with the delegate the applicant “…claimed that his family have been moving around the south of Iraq constantly [, largely around Basra,] out of fear of harm from the Shia militia” (see [39] at CB 222). [Sections of the quote from the IAA’s decision record which were omitted from the applicant’s written submissions have been added.]

  5. The applicant submitted that the IAA’s subsequent finding that he did not mention this in an interview on arrival, or in either of his protection visa applications (with reference to [40] at CB 222) must be seen in light of the fact that there was no “inconsistency” in the applicant’s evidence.

  6. In relation to the 2012 claim the applicant’s submissions directed attention to [36] of the IAA’s decision record (CB 221):

    “Having regard to the inconsistencies in the applicant’s evidence, I do not accept that the applicant was watched and followed for a period of time before leaving Iraq, that he was verbally abused and threatened by those who followed him, or that he received a threatening letter addressed to him from those who were following him or their associates telling him to leave Iraq or the south of Iraq.”

  1. The submissions then directed attention to [33]–[35] to “suggest” that the IAA perceived two “inconsistencies”.

  2. One, the applicant made the 2012 claim in his SHEV application of (13 April 2016) but: “This claim was not mentioned in the applicant’s invalid protection visa application dated 14 August 2013 or in his arrival or entry interviews” ([33] at CB 221). Again the complaint is that this is not an “inconsistency”.

  3. Two, in relation to the 2012 claim the applicant draws attention to the Tribunal’s decision record at [35] to again complain that no “inconsistency” existed:

    “…it is difficult to accept that, if this second written threat addressed to the applicant was in fact the trigger for his departure from Iraq as later claimed, he would not have mentioned it when asked why he left Iraq in his arrival interview of 24 September 2012 or in his invalid PV application dated 14 August 2013”.

  1. Although not entirely clear, in context, it would appear that given what is ultimately stated in the applicant’s submissions at ([57]) that the assertion of legal error is that it was unreasonable of the IAA not to consider the exercise of the discretion of the power in s.473DC of the Act, rather than an unreasonable exercise of the power itself.

Consideration: Ground Two

  1. There can be no doubt that legal reasonableness is a necessary element of lawful decision making (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4], [80], [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [26], [29], [63], [88] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53]).

  2. As set out above, the applicant’s counsel elected, despite opportunity to do so, not to make oral submissions on this ground. This presents a difficulty in that the written submissions do not align with the ground as actually stated.

  3. The ground asserts that it was legally unreasonable of the IAA not to exercise the discretion. Further, that the IAA did not even consider whether to exercise the discretion under s.473DC of the Act to invite the applicant to comment on the IAA’s consideration that it was minded to make different findings to those made by the delegate in relation to the two incidents. That was particularly necessary where those proposed findings were adverse to the applicant.

  4. The written submissions however, for the greater part  appear to argue that it was unreasonable, of itself, of the IAA to make findings of “inconsistency” in the applicant’s claims (with respect to the incidents of 2011 and 2012) where no such inconsistencies existed.

  1. At best, in an attempt to reconcile the submissions to the ground as pleaded, I took the view that the reference in the submissions to the various inconsistencies was an attempt to establish the factual foundation for the allegation of legal unreasonableness.

  2. That is, it was an attempt to explain how, and why, the IAA’s departure from the delegate’s findings rendered the failure to exercise the discretion in s.473DC of the Act as legally unreasonable.

  3. The applicant’s ground, and as the submissions are understood to relate to the ground, do not reveal jurisdictional error in the IAA’s decision. The following principles are relevant to this consideration.

  4. First, as with ground one, it must be said, the applicant has failed to fully appreciate the different statutory regime applicable to the IAA under Part 7AA of the Act, and that applicable to the Administrative Appeals Tribunal under Part 7 of the Act. As was, with respect, made clear in relevant authorities “reasonableness” is informed by the subject matter, scope and purpose of the legislation in question (BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71] and SZVFW at [11]–[12], [88]–[90]). In the current case that is Part 7AA of the Act.

  5. The statutory obligation of the IAA is to review a fast track reviewable decision that is referred to it pursuant to s.473CC of the Act. This imposes a duty to consider the application for the protection visa afresh. That is, it is for the IAA to determine, separately to the determination made by the delegate, whether the protection visa should be granted Plaintiff M174/2016 at [17].

  6. To the extent therefore that the applicant’s submissions, at least imply, to the contrary, that must be rejected.

  7. Second, of course that is separate to the question which sits at the heart of the ground as pleaded. That is, that what underlies the claimed unreasonableness of the IAA’s failure to consider exercising the power in s.473DC(3) of the Act, is the proposition that it was procedurally unfair of the IAA not to engage in such consideration because the applicant should have been given the opportunity (in the sense of providing procedural fairness) to comment on adverse findings of which, because it was contrary to the delegate’s findings, he did not have notice. This appears to be the point, at least in part, that the last paragraph of the applicant’s submissions ([57]) sought to make.

  8. Section s.473DC of the Act must be understood in light of s.473DB of the Act which establishes that the IAA is to conduct the review without accepting or requesting new information and without interviewing the applicant.

  9. This provides context for understanding the exercise of the power in s.473DC of the Act, which, as set out above, must be exercised reasonably. That is, whether the IAA has acted unreasonably in failing to consider the exercise of discretion in s.473DC of the Act depends upon the relevant circumstances of each particular case (see DZU16 at [80]–[81]), and when those circumstances are considered in the relevant statutory context.

  10. This is not a case where, for example as with reference to Part 7 of the Act, s.425 of the Act obliges the Administrative Appeals Tribunal in that circumstance to invite the applicant to a hearing and to provide a meaningful opportunity to the applicant to give evidence and make arguments in relation to the issues in the review.

  11. Third, further in this context, in determining whether the IAA has acted unreasonably proper regard must be had to the area of “decisional freedom”. It is within that concept that the IAA has a free discretion, and where, as it is said, reasonable minds may differ as to the “right” or correct outcome (Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [62] and Li at [28]).

  12. Fourth, as the Minister submitted, there may be circumstances in some cases that lead to a finding that it was legally unreasonable for the IAA “…not to consider getting documents or information from” the applicant (CRY16 at [82], DGZ16 at [70]). But this must be seen in the light that the test for legal unreasonableness is stringent (Li at [108] and SZVFW at [11]).

  13. Fifth, as set out above, the ground as pleaded asserts that the IAA acted unreasonably in not considering whether to exercise the power in s.473DC of the Act, and specifically s.473DC(3) of the Act.

  14. Relevant authorities emphasise that particular circumstances may require the IAA to engage in such consideration so as to fulfil its obligation of acting reasonably (for example DZU16 at [80]–[81]). However, this requires an analysis of these particular circumstances and the manner and fashion in which the applicant has presented his claims (CRY16; DGZ16 and DZU16).

  15. Sixth, the Minister’s submissions extract, relevantly, a number of principles from CCQ17 (Thawley, J) which provide direction for the disposition of the applicant’s ground. I agree with the Minister that the following is a fair and reasonable understanding of what, with respect, the Court stated in CCQ17:

    “(a) the appellant bears the onus of establishing the factual foundation for the conclusion that there was a failure to consider the exercise of the discretion and that this failure was a jurisdictional error: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67];

(b) s.473EA(1) does not require the IAA’s statement of decision to include a statement as to the exercise of a procedural decision: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45], 49];

(c) the absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered;

(d) there are no fixed categories of circumstances where it would be legally unreasonable to fail to consider the discretion in s.473DC(3). One example, in CRY16, turned on an issue not considered before the delegate that was dispositive before the IAA (the failure to consider exercising the discretion leading to the IAA disabling itself from considering what was reasonable for the purposes of relocation); and

(e) the discretion must be approached through the lens of the statutory scheme and not the principles of natural justice: BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. The discretion must be read with s.473DC(2) which provides that there is no duty on the IAA to get, request or accept new information. Other features of the statutory scheme that are relevant include that s.473DE(3)(a) can be used to affirm a decision without giving a referred applicant an opportunity to be heard and Part 7AA, pursuant to s473DB(1), contemplates that the default position is that there will be a limited review on the papers.”

  1. The applicant’s ground is not made out for the following reasons.

  2. The applicant’s submissions did not point to, nor can I otherwise see, that the terms of Part 7AA of the Act, themselves, oblige the IAA to put the applicant on notice that it would make findings (as identified above) contrary to those made by the delegate.

  3. As set out above, the applicant’s ground proceeds on the basis of asserting legal unreasonableness because the IAA was said not to have considered the exercise of the discretion in s.473DC of the Act.

  4. The difficulty for the applicant, as identified in the Minister’s “primary response” to the ground, is that the applicant’s submissions focused on challenging a number of factual findings made by the IAA, rather than seeking to demonstrate a failure to consider the exercise of the discretion.

  5. I do not accept, given what is set out above as the applicable principles, what is, at least implicit in the applicant’s ground, and for that matter his submissions, that the claimed failure to consider the exercise of discretion arises simply from the IAA’s intention to depart from findings made by the delegate.

  6. As the Minister submits, it is for the applicant to show, on the balance of probabilities, the basis to support a conclusion that the IAA fell into jurisdictional error (Minister for Immigration & Citizenship v SZGUR [2011] HCA 1 at [67]–[68], [91], [92] and Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [24]).

  7. As was said by the Full Court in BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (not disturbed on this point in the High Court) the applicant is required to establish “…the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion” (at [41]).

  8. This is particularly so, in context, in light of what the High Court said in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 at [16]:

    “Two further provisions of Pt 7AA are also appropriate to be mentioned. Section 473EA, which is located within Div 4, requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both "the decision of the Authority on the review" and "the reasons for the decision"[14]. The analysis in Minister for Immigration and Citizenship v SZGUR[15] of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).”

    [Footnotes Omitted.]

  9. In short, the applicant has not demonstrated that the IAA unreasonably failed to consider the exercise of the discretion in s.473DC of the Act.

  10. As set out above, the applicant’s submissions sought to challenge certain factual findings made by the IAA possibly as a basis for asserting legal unreasonableness. It would appear therefore, that the argument is that the unreasonableness arises, not necessarily from the claimed failure to consider the exercise of the discretion, but rather that that claimed failure was unreasonable in circumstances where the IAA made certain identified factual errors which were themselves said to be unreasonable.

  11. This was not therefore an argument that the decision, that is the outcome of the review, was legally unreasonable because of the failure to reasonably exercise a statutory discretion, but rather that certain findings were so unreasonable that they materially affected the outcome. That is, that whereas the ground asserts unreasonableness in the failure to exercise a statutory discretion, the submissions assert unreasonableness because of errant fact finding.

  12. The nature of the claimed factual errors is set out above. Although not entirely clear from the applicant’s submissions it would appear that the thrust of the complaint is that it was unreasonable, although given the nature of the explanation, more precisely illogical or irrational, of the IAA to find that the applicant’s evidence in relation to the claimed incidents of 2011 and 2012 revealed “inconsistencies”.

  13. It is the case that the IAA used the term “inconsistencies in the applicant’s evidence” in relation to the 2011 incident [42], and the 2012 incident [36].

  14. However, the applicant’s focus in his submissions on the word “inconsistencies” is misplaced. On a plain, let alone a fair reading of the totality of the IAA’s consideration relevant to these two incidents (see [37]–[42] and [33]–[36]) it is the case that what the IAA found was that the applicant was inconsistent in the totality of the presentation of his claims in the various opportunities that he had to explain why he feared harm if he were to return to Iraq.

  15. In his submissions the Minister has described the “inconsistencies” as “discrepancies” in the applicant’s various accounts of why he fears harm. However what the IAA reasoned in relation to these differences in the applicant’s various accounts or iterations of the same events he described, was that the applicant omitted to mention critical facts when presenting his claims on some of the occasions and opportunities presented to him for this purpose, but raised those claimed facts on other such occasions.

  16. For example, in relation to the 2012 incident the applicant claimed that in 2012 he received a second written threat which was the trigger for his leaving Iraq. The IAA reasoned that if this was so significant it would be expected that he would have mentioned it at his arrival interview and in his invalid protection visa application of 14 August 2013 ([35] at CB 221).

  17. Similarly in relation to his family, the IAA reviewed what the applicant had stated at each of the different iterations of his claims. It found differences, or omissions, in these accounts as compared to each other.

  18. It is clear therefore, in relation to both these matters what the IAA described as “inconsistencies in the applicant’s evidence” were inconsistencies in the sense of unreasonable omissions in the various iterations of his claims. 

  19. In any event, the findings referred to above were all reasonably open to the IAA on what was before it, and for which it gave cogent reasons probative of the evidence before it. Unreasonableness, or for that matter illogicality or irrationality, is not revealed simply because the applicant disagrees with such findings of fact, or even where the delegate made different findings of fact.

  20. The IAA’s reasoning in this regard, and the view I have taken of it, is expressly explained by the IAA at [17] of its decision record (CB 218):

    “17. I accept that the entry and arrival interviews provided a limited opportunity for the applicant to present his claims for protection. Nevertheless, as discussed further below, I do not consider that this represents an adequate explanation for the omission of central aspects of the applicant’s claims from his description of his reasons for leaving Iraq in the arrival interview of 24 September 2012, particularly given that when asked why he left Iraq during that interview, the applicant did mention other less central matters, including referring firstly to problems in his relationship with his step mother.”

[Emphasis Added.]

  1. The IAA’s findings in relation to the 2011 and 2012 incidents, however described, do not reveal unreasonable fact finding. In that light, the submissions, to the extent that they seek to explain, or expand, the ground as pleaded, do not reveal jurisdictional error. The applicant’s ground is not made out.

Conclusion

  1. The applicant has not established jurisdictional error in either of the two grounds of the application. It is appropriate to dismiss the application. I will make that order.

I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 13 July 2020

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