CDH16 v Minister for Immigration and Border Protection - [2018] FCA 668

FEDERAL COURT OF AUSTRALIA
CDH16 v Minister for Immigration and Border Protection [2018] FCA 668

Appeal from: CDH16 v Minister for Immigration & Anor [2017] FCCA 1063

File number: NSD 934 of 2017

Judge: KERR J

Date of judgment: 14 May 2018

Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – where appellant is a Shia and claims to fear persecution on the basis of his having a name which would identify him as being a Sunni – whether primary judge erred in finding the appellant gave evidence he had tribal ties to a particular place in Iraq – whether primary judge erred in failing to find the IAA had not considered relevant submissions made by appellant – whether primary judge erred in failing to find the IAA ought to have considered new information – whether primary judge failed to give sufficient reasons in dismissing the application for review – appeal allowed

Legislation:
Migration Act 1958 (Cth) ss 5, 46A, 473DA, 473DB

Migration Regulations 1994 (Cth)

Cases cited:
Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309

Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277

Date of hearing: 3 May 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 104

Counsel for the Appellant: Mr B Mostafa

Solicitor for the Appellant: Fragomen

Counsel for the First Respondent: Mr BD Kaplan

Solicitor for the First Respondent: DLA Piper

Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs

ORDERS

NSD 934 of 2017

BETWEEN:
CDH16

Appellant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

KERR J

DATE OF ORDER:

14 MAY 2018

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The First Respondent pay the Appellant’s costs of the appeal as agreed or assessed.
3.The orders made by the Federal Circuit Court of Australia on 22 May 2017 be set aside and in their place:
(a)Order absolute in the first instance for a writ of certiorari to remove into the Court for the purpose of its being quashed, the decision of the Immigration Assessment Authority dated 8 July 2016 to affirm the decision of a delegate of the First Respondent to grant a protection visa to the Applicant;
(b)Order absolute in the first instance for a writ directed to the Immigration Assessment Authority commanding the Authority to review according to law the decision of a delegate of the Minister to refuse to grant a protection visa to the Applicant;
(c)The First Respondent pay the Applicant’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
KERR J:

The Appellant is a citizen of Iraq. He has no entitlement to reside in any other country. He departed Iraq in 2012 and after travelling through the UAE and Indonesia he boarded a boat which transported him to Christmas Island.
As an unauthorised maritime arrival who arrived in Australia at an excised offshore place, the Appellant was barred from making a valid application for a visa onshore by s 46A of the Migration Act 1958 (Cth) (the Migration Act). However on 13 August 2015 the Minister for Immigration and Border Protection (the Minister) lifted the s 46A bar. On 21 August 2015 the Appellant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV).
It is uncontentious that the Appellant then made an application which complied with the validity requirements for a SHEV under the Migration Act and the Migration Regulations 1994 (Cth). His application for a SHEV was received by the Department on 22 September 2015. He was therefore to be dealt with as a fast track applicant under s 5(1) of the Migration Act.
The first stage of that process involved a delegate of the Minister giving consideration to the Appellant’s application.
RELEVANT SUBMISSIONS AND EVIDENCE BEFORE THE DELEGATE
The Appellant was then represented by D’Ambra Murphy Lawyers.
The Appellant’s application was sent together with a covering letter from that firm dated 22 September 2015. The letter is at CB 45-56. The covering letter identified a number of issues that D’Ambra Murphy Lawyers submitted bore on the Appellant’s claims for protection. In respect of the issue which is central to these proceedings they submitted as follows (at CB 47):
Religion
The applicant is Shia, but his name is a Sunni name, and that means that he may be imputed as being Sunni, and that makes him vulnerable to persecution by Shia groups that operate in Iraq.
The letter quoted from a report of the Finnish Immigration Service dated 29 April 2015 in support of that submission. That Finnish report included the following in respect of problems that had arisen in Baghdad because of illegal checkpoints run by armed militias, particularly in areas with mixed Sunni-Shia populations:
… [I]t is difficult to know whether a person is Sunni or Shiite simply on the basis of their name. In Iraq there are Sunnis called Ali and Hussein and Shia called Omar, even though some sources suggest that even secular Shia parents would not name their children Omar, Abu Bakri, Othman or Aisha. Traditionally names such as Omar, Abu Bakr and Yazid are Sunni names…
… In July 2006 the police found 14 young men dead in Baghdad. They were all Sunnis who had been shot in the head. All of them had the same first name, Omar.
The covering letter referred to an article that had appeared in the Australian Newspaper on 28 June 2014 entitled “Curse of Omar: the Sunni name that signs a death warrant”. It included the following:
It’s a dangerous name to have in Baghdad at the moment: Omar.
At least eight men with the name Omar have been found dead around the Iraqi capital during the past week as death squads have reappeared.
For historical reasons within Islam, Omar is a name given almost exclusively to Sunni Muslims. In the new climate of fear in Baghdad, it stamps someone as “the enemy” – a Sunni rather than a Shi’ite. The number of deaths of men with the name Omar confirms the re-emergence at street level of a brutal religious war between Sunnis and Shi’ites.
In Baghdad, the Shi’ites are in the vast majority, as well as in control of the national government and the police and army. With the return of paramilitary groups to Baghdad’s daily life, Sunnis are being targeted by Shi’ites in revenge for what the Sunni group ISIS – the Islamic State of Iraq and al-Sham – is doing to Shi’ites in other parts of the country.
Iraq’s Baghdad Channel Network reported that in the past week, eight Omars had been “liquidated”. The network said the Omars were killed in the suburbs of Rusafa and Karkh.
The letter then drew the decision maker’s attention to a DFAT Country Report on Iraq dated 13 February 2015 which indicated that execution style killing had mainly occurred in central Iraq but there had been instances in southern provinces. The report continued:
3.57 Overall, DFAT assesses that Sunnis in Shia-dominated and mixed provinces face a high risk of violence from Shia armed opposition groups. Sunnis in Sunni-dominated provinces face a moderate risk of violence due to insurgent activity that is aimed at destabilising the government, promoting sectarian conflict and destabilising communities.
3.58 The ISF lacks the capacity to provide specific protection for Sunnis because of the large size and disparate settlement of the Sunni community. Neither Sunni nor Shia provincial governments nor the ISF are able to provide protection from violence (see also ‘State Protection’, below).
…
Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence, whereas Shia in Baghdad province face a moderate risk of generalised violence.
(Emphasis added by D’Ambra Murphy Lawyers.)
D'Ambra Murphy Lawyers submitted that the Appellant could not relocate to the south of Iraq where Shia were in the majority because, in his case, although a Shia, his name identified him (erroneously) as Sunni.
The covering letter cited an article published in Al-Monitor of 24 September 2013 in which an Iraqi journalist cited a comment that “[m]ere names have become a pretext for killing people”. The article contained the statement that “Shiite militias have emerged in southern Iraq, claiming to seek vengeance from the Sunni residents there”.
The covering letter quoted the DFAT Country Report of 13 February 2015 as follows:
5.26 Overall, DFAT assesses internal relocation to southern Iraq might be a reasonable and practical option for Shia. However in practice it would be difficult for Sunnis or other minorities fleeing violence elsewhere in Iraq.
(Emphasis added by D’Ambra Murphy Lawyers.)
The Appellant supported his application with a statutory declaration dated 26 July 2013 (CB 92-98)
As is relevant to these proceedings he declared:
21.In the middle of 2010, there was an attempt to rob me in a Shiite area called Washash which was close to Al Mansour where I lived. I had a day off and was shopping in the market in Washash. I was going back to my car, which was my company car, and I found the young men sitting on my car.
22. They told me in our colloquial language that they had caught me. They asked me for my ID, so I gave it to them. My name Omar is a Sunni name, so they thought I was Sunni, so they started to use bad language towards [me]. They dragged me to a nearby street, intending to take me to a place where they would kill me. One of the men carried a gun, and another one carried a stick. They started hitting me. I started screaming, saying my surname Al [Y] is known to be Shi’a.
23.As I was being dragged to the street, the fishmonger from whom I had bought some fish from saw me and came over He confirmed that I was Shi’a, and said that he knew my father, and my father was well-known in that area because he used to teach in that area and used to shop in that area.
24. The men claimed to belong to Al Mahdi Army. They took me to an Al Mahdi Army base upon the request of the fishmonger. It was known that Al Mahdi Army does not kill Shiites. The fishmonger asked for me to be taken to the Al Mahdi Army base to confirm that I was really Shia so that I could be released.
25 A religious person wearing a black turban, who was the leader of the Al Mahdi Army in that area, appeared wanting to interrogate me to determine if I was really Shi’a. I maintained that I am Shi’a, and explained that my father is Kareem and that my father used to teach in a school in this area. The man asked where I was from, and I said my father was from Al Nasiriya. He asked me to call my father, which I did. My father came to the Al Mahdi office. When they were satisfied that I was really Shi’a, I was released.
26.After the incident, the fishmonger told my father that the men were from a gang who had been intending to steal my car after killing me. He explained that about 10 days before what happened to me, another stranger had been killed and his car taken from him in similar circumstances in the area where we were.
…
43.I also fear harm because my name, Omar, is a Sunni name, and the Shiites perceive me to be Sunni. Moreover, tens of people named Omar have been killed by the Al Mahdi Army.
(Emphasis added.)
The Appellant subsequently submitted a further statutory declaration dated 21 September 2015 (CB 100-102). In that second statutory declaration the Appellant updated his family information. He advised that his surviving brother as well as his parents had left Iraq and were living in Romania.
He gave an account of why his father had named him Omar and the consequences of having that name:
11.My name, Omar, is an almost exclusively Sunni name. However, I am Shia. My father is open minded and he was a teacher of Arabic language. He named me after a poet that he liked called Omar Alkhaiam (I am unsure if that spelling of the surname is correct). My father thought that Omar was just a nice name and he was secular minded.
…
13.In 2014, after Daesh (ISIS/ISIL) came to Iraq, the situation for people with the name Omar became even more dangerous. The Shia militias are targeting people with the name Omar because Omar is a name that Sunnis are usually called.
…
15. I could be targeted anywhere because of my name.
He then declared:
18.I cannot relocate to the South of Iraq because even though I am Shia, my name, Omar, imputes me as being Sunni, and Sunni people are harmed by Shias. It would be unreasonable for me to relocate there because the security situation/criminality there is also not good.
Interview with Delegate
On 23 November 2015 the Appellant was interviewed by the Minister’s delegate. His interview was recorded but not then transcribed. It was later transcribed for the purposes of the Appellant’s unsuccessful application in the Federal Circuit Court of Australia. The transcript is at CB 580-642.
Having had regard to counsel’s submissions in this appeal, the relevant passages of the transcript are those as follows:
DELEGATE: ... the difference between a Shia and a Sunni, you’d be ab-able to answer those questions, so why would you be at risk?
INTERPRETER: So um.
Yes, as you know in Iraq, you know, it-it doesn’t happen, very rarely that what happened, um, um, Shia person will be named as Omar. Very rare.
Yeah, even though there is, but it’s very rare.
Very rare.
And you know honestly, if, e-even here in Australia, if you tell anybody like my name is Omar but yet I’m Shia, they’re not gonna believe you.
Yeah, I mean as I said there is some people whose name the same, but very little, very little, yeah.
Very few.
DELEGATE: So did anybody ever ask you, any Shia militia ever ask you, question you about your name?
INTERPRETER: No, but in Iraq and that’s very well-known actually, any, any time you hear a person’s name, Omar, you will automatically assume it’s Sunni.
Yeah, but you know, we’re talking about radical people, we’re talking about these radical people, because as you know we have the Imam Ali, his son’s name is Omar.
DELEGATE: Yep. But what I’m saying is, if you’ve never had a problem with Shia militias being stopped and questioned about your name, then why would you have a problem in the future? If you managed to live your whole life in Iraq with that name, if you went back, which is one of the tests I have to assess your application by, what happens to you in the future? If nothing’s happened to you in the past because of your name, you lived almost your whole life there, why would it, why would it be any different?
INTERPRETER: But in two-thousand-ten I w-, I almost was killed because of this.
DELEGATE: Yep. And what h-happened there that allowed you to survive?
INTERPRETER: Okay. ___ [inaudible] please.
Um, because that person actually, where I went to buy, we went to buy the fish, like this person actually knew my, my father very well, and, and um, as I said to you before, like, as I said, or as I have mentioned actually um, this, this group, they, they’re like gang.
They, they are gang actually, they are follower of Al-Mehdi Army.
After I have bought from that person, came back to get into my car, I found three persons sitting on my car.
They recognised me that I’m not one of the area, I’m not one of the area, of that area.
They asked me for my ID.
As soon as they saw my name, they dragged me actually to, a, to s-somewhere, where they’re going actually to-to kill me and get my, my ID.
Um, and you now, um, ten days before that, this person that we bought the fish from actually have told my, my, um, er ...
APPLICANT: Father.
INTERPRETER: .. .father, that um, another person was dragged to the Al-Mehdi um, quarter, and he was killed, like ten days before I was dragged myself. So that’s what he told my father.
DELEGATE: He was what? Kidnapped, sorry?
INTERPRETER: Dragged.
DELEGATE: Yeah.
INTERPRETER: Dragged. To be ...
DELEGATE: Ten days before? Yep?
INTERPRETER: Ten days before, he was dragged to Al-Mehdi Army quarter, and he was killed.
DELEGATE: Killed?
INTERPRETER: Yeah.
Yeah, they killed him actually and they took his car, yeah. Those people.
DELEGATE: Yeah.
INTERPRETER: Yeah.
DELEGATE: So that, why did they kill him?
INTERPRETER: Because, er, you know once they say that we are followers of AI-Mehdi Army, that means they are gang, that’s the, you know, they are gang. That’s why.
DELEGATE: And so what happened that day when ...
... they, they, they tried to, tried to kill you?
INTERPRETER: They’re dragging me actually to take me to the um, to that place, the quarter, their quarter, in order to kill me, because but I kept screaming and I kept saying to them I’m a Shia, I’m a Shia, I’m a Shia, and that time like, this was all actually not far from where we bought the fish from, this person from his place, from his shop ...
DELEGATE: Mm.
INTERPRETER: ... so he came as well, and he kept saying to them that “he, he’s a Shia, this person is a Shia.”
Mm, because as I said before they were going actually to drag me to take me to a place ...
DELEGATE: Mm.
INTERPRETER: ... where they can kill me ...
DELEGATE: Yep.
INTERPRETER: ... and take my car.
So when he came actually, start saying to them “this person they are Shia and I know his father,” like in -initially they said to him, “don't talk, don't get involved,” because as you know, Mehdi Army, they've got the control, they’ve got the er, er, they control.
So he said to them if you are really from the Al-Mehdi Army, or Al-Mehdi group, why don’t we take him to Al-Mehdi office and find out then if he is really Shia or not, why, why do you want to kill him now, why can’t you find our first?
And that’s exactly what happened, they took me to the office.
And, and [their] Captain actually, he was a religion person, like he, you can see that he was act-, one of the Shia religious person. So um, he started actually question me if I’m really a Shia.
So I told him I’m one of the [Y], al, al, [Y], an Al-[Y], is, does actually symbolise the Shia, and I told him that my father used to be a teacher at this school.
So, and I told him that my father used to work, like, used to work as a teacher in this school, this school at Washash, um, a school next to it, like most of the people from this area used to study in that.
So my father is well known in that area.
Um, o-of course that person didn’t know my father personally, but you know, in Iraq they will ask you first where are you originally from, like where you from.
So I told him like, my, my father originally from Al-Nasiriyah.
And then he said, we w-, we have to contact your father to find out whether you are telling the truth or not.
And that’s exactly what happened, I contacted my father and he came to the office, or to the er, quarter and told him.
And that’s when they released me.
(CB 629 line 1-CB 632 line 5)
…
DELEGATE: Okay. So that same report form DFAT says violence against Shia is more prevalent in Baghdad than the rest of Iraq and relocation to other Shia dominated provinces, in the south, um, would mean yo-, the Shias would be less likely to become victims of sectarian based violence.
INTERPRETER: You know, forgive me for saying this, but we’re gonna go back to the same what I’ve said before.
DELEGATE: I-I, ne-, yeah.
INTERPRETER: My name is, my name is a _____ [inaudible].
DELEGATE: I need to put this information to you so you can comment. So, if...
INTERPRETER: Yeah, I know.
DELEGATE: ... if it sounds repetitive, um ...
APPLICANT: Yes.
DELEGATE: ... that’s, that’s the way it is.
APPLICANT: Yes, sorry, but, yeah.
INTERPRETER: Yes, um, as I said to you before like um, because of my name Omar and many people whose name was Omar was killed.
DELEGATE: Because of your name?
INTERPRETER: Yes.
DELEGATE: So you don’t think you could be um, able to avoid trouble, because of your name, by convincing them that, you’re Shia?
As I said before?
INTERPRETER: I can’t guarantee.
(CB 633 line 24 to CB 634 line 14)
…
REPRESENTATIVE: This is page five, I, I’m presuming.
DELEGATE: Yeah, so, u-unless I read it, I read the whole, I found the whole report, yeah. Maybe it’s not here, um, just let me. It may not be this. I might have to. Oh maybe, maybe down the bottom, “there were already problems with the name Omar during the Civil war during two-thousand-and-six, the police found fourteen young men dead in Baghdad, they were all Sunnis.”
And, and Omar appears to be one of the names that causes troubles for Sunnis.
So unless I’m mistaken, this report seems to, seems to refer to Sunnis called Omar.
So in other words, why, again, I’ve already asked the question, but I’ll give you another opportunity, why would you be at risk, in a Shia area, if you’re called Omar?
INTERPRETER: Because as I said to you before, even if I tell people here in Australia my name is Omar and yet I’m Shia, they are not going to, to, to er, believe me.
Um, even though, as I said to you before, like my um, er, my tribe is Al-[Y], Al-[Y] means with majority are Shia, but yeah there is some people actually, the name [Y], and a few, like er, only a ce-, a certain amount of people Al-[Y], and they are Sunni.
You because um, if I say to people like, my name is Omar, and um, I’m Shia, like if he’s going to, to er, to see Omar, if he's going to read Omar, and he’s going to say Omar Al-[Y], automatically going to assume Omar Al-[Y] and that’s Sunni, not Shia.
(CB 636 line 26 to CB 637 line 10)
Post interview submission

On 30 November D’Ambra Murphy Lawyers made post interview submissions on the Appellant’s behalf. Those submissions appear at CB 198-205. It was submitted that:
The Department suggested words to the effect that it had doubts about whether a Shia with the name Omar would be killed when the country information seemed to refer to the death of Sunnis with the name Omar. There was also a suggestion by the Department to the effect that the applicant, because he is Shia, could ‘explain’ his way out of situations where he was imputed as being Sunni because of his name (That, in our submission, erroneously assumes that the applicant would indeed be given a chance to ‘explain’).
By way of reply, first, from [21] of the applicant’s original detailed statutory declaration, dated 26 July 2013, the applicant refers to the 2010 incident in which he was targeted for his name. At [22], the applicant declares “They started hitting me”. At [24], the applicant declares “They took me to an Al Mahdi Army base…”. At [25], the applicant declares that “When they were satisfied that I was really Shia, I was released”. Prior to being released, the applicant had suffered significant physical harassment of the person, significant physical ill treatment of the person and there was a threat to the person’s life or liberty (see [s] 5J(5) (a), (b) & (c) [of the Migration Act]). That is, even if the applicant could ‘explain’ his way out of being killed, there is still a real chance that he would suffer other forms of persecution.
Second, the applicant’s claim at [45] of his detailed statutory declaration, dated 26 July 2013, is “I fear I may be harmed and/or killed by the Shiite Al Mahdi Army because they perceive me to be Sunni because of my name Omar”. Even if the country information only showed that it was only Sunnis with the name Omar who were killed, the applicant’s claim is that he may be erroneously imputed as Sunni: see also [21] of updated statutory declaration dated 21 September 2015. That the applicant may be imputed as Sunni is objectively supported by the fact that: “For historical reasons within Islam, Omar is a name given almost exclusively to Sunni Muslims”. Country information provided shortly hereafter in these submissions establishes, inter alia, the following… [Shiites believe the title of the prophet should have passed to Muhammad’s relative Ali and regard Omar as a usurper].
(CB 199-120)
Refusal of application
On 6 June 2016 the Appellant was notified that his application for a SHEV had been refused (CB 235).
The Appellant was provided with a copy of the delegate’s reasons. The delegate’s reasons necessarily addressed all of the claims the Appellant had made.
In so far as context is necessary to understand the background of the appeal now before this Court, it is sufficient to note that at [124] to [126] the delegate found that as a Shia there was a real chance of persecution if the Appellant returned to Baghdad. However that risk did not extend to all parts of Iraq. At [140] the delegate found that “the applicant would not face any real chance of harm on account of his Shia religion if he relocated to southern Iraq”.
In respect of the specific claim the Appellant had made that, notwithstanding his Shia religion, because his name was Omar he might be mistaken as a Sunni and for that reason he would be at risk of harm from Shia militias in the south, the delegate had earlier addressed the Appellant’s evidence as follows:
71.When asked why he cannot relocate to a Shia-dominated area in the south of Iraq as DFAT considers violence against Shia is more prevalent in Baghdad, he said he cannot live anywhere in Iraq because he has a Sunni name. He said he cannot guarantee that he could convince Shia militia that he is Shia as he knows how they think. He said he knows of some Shia people who relocated to the south who are considered to be strangers there and were killed or kidnapped. In Iraq if someone leaves their home area where they are known and moves to an area where they are not known then it is a big problem…
…
83.The applicant’s account of the attempted robbery in 2010 was plausible. While his name may have been a factor in attempting to abduct and possibly kill him, I consider the main motive the gang had in initially targeting him was to steal his car….
The Court infers that was a reference to the Appellant’s statutory declaration dated 26 July 2013 at [21] to [26].
With respect to whether such fears might be relevant were he to be required to relocate to the south of Iraq, the delegate’s reasoning then was as follows:
Fear of harm from Shia militias due to his name
148.As stated above at Part 2 in Findings of Fact, I accept the applicant was named Omar since his birth and his identity documents record his given name as Omar.
149.According to a report from June 2014, the name Omar is a name given almost exclusively to Sunni Muslims. In 2014 eight men named Omar were found dead in Baghdad during one week, which occurred in the suburbs of Rusafa and Karkh. All victims were Sunnis who were targeted by Shia death squads to revenge the atrocities committed by Daeshin other parts of Iraq. One of the groups responsible is called Asaib al-Haq which operates from military checkpoints. When a car is stopped by the army, Asaib al-Haq questions its occupants to establish their religion and sometimes they take people away who are identified as Sunni.
150. An Iraqi journalist named Omar al-Jaffal stated on his Facebook page that he can be killed owing to his name. Country reports support the claim that persons with the name ‘Omar’ in Central Iraq, particularly Baghdad, may face particular problems due to the name’s easy identifiability with the Sunni sect of Islam.
151. In southern Iraq, a report by Al Monitor states that “…there is seemingly a veto on these names in the Shiite central and southern cities.” Shia militias have appeared in southern Iraq exacting revenge from the Sunnis who reside there, killing a number in Basra and displacing others from Dhi Qar. Many Iraqis have stopped giving their offspring names with sectarian connotations since 2003.Three thousand Iraqis named Omar requested that their names be changed out of fear of being killed, resulting in a columnist writing that such people "have been pushed by sectarian conflict to essentially “abandon their origins”.
152. I note that the applicant is a Shia Muslim and the reports refer to Sunni Muslims named Omar being killed rather than Shia Muslims bearing Sunni names such as Omar. I also note that, according to Al Monitor, people have sought to change their names when they relocate to an area where they are in the minority. The applicant, if he did relocate to southern Iraq, would be a Shia relocating to a Shia majority area. While I accept that in 2010 the applicant was stopped and threatened in Baghdad by a group of Shia youth claiming to be from the Mahdi Army, I am satisfied that the incident was isolated and the overriding motive for the actions of the youth was criminal. The applicant has not claimed any other incidents which caused him to fear harm for reasons of his name despite having had that same name since he was born. According to an Al Monitor article, the practice of changing one's name in Iraq is common especially following a change of regime. Some three thousand Iraqis named Omar requested that there name be changed out of fear of being killed. An author and columnist named Ali Hussein considered that such people were “pushed by sectarian conflict to essentially ‘abandon their origins’”.
…
183. I also note that the applicant stated at the PV interview that his father originates from Nasiriyah, which is located in Dhi Qar Governorate in southern Iraq, where Shia constitutes the majority. He also stated that his brothers were born in Dhi Qar Governorate. At interview he claimed that he belonged to the [AK] tribe. Country information shows that the [K] tribe, the spelling of which I consider to be a version of [AK], is one of the tribes of Nasiriyah [cited from “Arab Tribes in Iraq”, Wikipedia, 22 February 2016, CIS38A8012280]. DFAT was told by some groups that without tribal or political affiliations, state protection is difficult to access. While the applicant’s father is currently living in Romania with the applicant’s mother and brother, I consider that the applicant would continue to have familial or tribal connections in Nasiriyah that would benefit his relocation to southern Iraq.
184. Considering the above, I find that it would be reasonable for the applicant to relocate within the receiving country, as outlined in paragraph 36(2B)(a) of the Act. Therefore, there is taken not to be a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.
(Emphasis added.)
REFERRAL TO THE IMMIGRATION ASSESSMENT AUTHORITY
Consistently with the Fast Track provisions inserted into the Migration Act as Part 7AA, the delegate’s refusal decision was referred automatically to the Immigration Assessment Authority (the IAA) for review. Such a review is, save in certain limited circumstances provided for in Part 7AA, conducted on the papers and without a hearing.
On 9 June 2016 the IAA acknowledged the referral and provided the Appellant with a copy of the IAA’s Practice Direction. The Practice Direction explained how a referred applicant could make submissions and make a request to provide new information. The Practice Direction limited the length of a referred applicant’s written submissions to no more than five pages.
By that time D’Ambra Murphy Lawyers was no longer acting for the Appellant. His new solicitor Ali Alkafaji sent a long submission to the IAA. It exceeded the five page length limit and was returned for resubmission.
The Appellant’s submissions to the IAA
On 23 June 2016, the Appellant’s new solicitor provided a revised submission. The terms of that submission appear at CB 552-556. It is not a model of written advocacy. It is replete with grammatical and spelling errors. However it is far from unintelligible. From its terms and context it is clear that the word “Par” followed by a number was to be read as a submission directed specifically to the equivalently numbered paragraph in the delegate’s reasons for the decision as had been referred to the IAA for review.
As relevant to this appeal the critical passages of the submissions made to the IAA were as follows:
Par 45, 46, 47 …….applicant stated that his father was born in nasiryah , while the rest of the family were born in Baghdad , he stated that in his interview with the department , all his family lived in Baghdad and in Baghdad only , he has no relatives anywhere else in Iraq apart from his grandparents' home in khan bani saad in Diyala which is one of the most dangerous places in Iraq, as it witnessed fierce battlefields between the Iraqi army and ISIL terrorists ,his brother Mohammed, his father and mother and his paternal uncles live in Romania due to the fact that Mohammed is on student visa , Mohammed was not sent by the Iraqi government on a scholarship as the delegate understood the matter ,
…
… The name” omer ’ is unique Sunni name , the majority Shiite population have hatred to this name because it is connected to one of the controversial disputes in the religious history , I here refer to the dispute between omer (the second khalifat ) and Ali (the fourth khalifat ) in Islam, this dispute resulted in the greatest division in Islam between shia and Sunnis , therefore you will find the name “ali ” is very wide spread among shia population while the name “ omer ” is very wide spread among the Sunni population , the question hence will be ? how can the applicant prove that he is a shia ?
There is no ID in Iraq that refer to the persons religious sect , hence the names generally is considered reasonable indication as to the religious background of the person , having said that my client will be at great risk of being persecuted for this specific element "religious believes " because he is perceived as sunni ….
Changing name in iraq is not allowed, the following report stated that only people who can change their names are the people with the name of “ saddam ” , Niqash refer to the following : It isn't easy changing your name in Iraq. Any person wishing to do must first file a request at a court where personal status cases are heard and then get the approval of a number of different government departments. This doesn't seem to have stopped people though and dozens still try to change their names every month. Iraq's Ministry of the Interior issued an order two months ago stating that only those who have the name "Saddam" - as in the former, much despised leader of Iraq, Saddam Hussein - would be allowed to change their names. People with this name are often harassed and suffer all kinds of discrimination and even potential violence because of their names. The Ministry of the Interior explained that they were doing this so that criminals couldn't change their names and escape justice.
Having said that article 20 of the law number 65 (Iraqi civil status legislation 1972) prohibit name changing unless it was a name that can bring shame to the holder , in the light of the above restrictions imposed by the ministry of interior then we cannot expect that to happen to the applicant .
Par 51 - the delegate erred completely in suggesting that the shia militia will distinguish shia from sunnis based on their answers to questions of faith , the above mentioned reports explain that Iraqis killed just because they have name , more importantly some of [AL Y] tribe are Sunnis especially in diyala , also the civil status id does not refer to whether this person is Shia or Sunni , so there is an assumption that the holder of specific name belongs to the specific sect , in the case the Sunni sect , the applicant refer to the incident occurred to him Alwashash area in 2010 where he was requested by the militia to show his ID , when he showed them his ID he was beaten , and humiliated because of his name , he was grabbed to a nearby alleyway with the intention to harm or kill the applicant , one of them was holding a gun , he told them that he is a Shia but they did not believe him , he was only released after other people intervened to verify that he was Shia , so how can we predict that he will be safe and sound every time he will be arrested because of his name ? Who will support him or intervene in his case in the Shia dominant south? , the applicant has no familial or tribal connections in the south of Iraq, he and his family lived all of their life in Baghdad.
…
P54, p 55, the applicant does not agree that the incident was a robbery incident , he was beaten because they discovered that his name is omer , as we stated above , the applicant was only released after some people intervened in his case , they are not a gang , the belong to the mehdi army , therefore they are not a criminal gang , they are religiously motivated group who singled out the applicant based on his name , the applicant maintain that the interpreter might conveyed what he said incorrectly .
I have listened to the audio recording , the applicant stated that these mehdi army followers persecuted him because he was stranger (not from the local area) , then they discovered his name is omer , they started beating him afterwards , that give us a hint as to what will happen to a stranger in any other part of Iraq , he will be recognized as stranger whether he will go to basra or nasirya or kerkuk ,he will be investigated by the militia about his reasons for moving to any area in Iraq , then if they find that his name is omer , they will perceive that he is a sunni , he then will be dealt with according to how the treat sunni's in the south of Iraq , it is well evidenced that there is a persecution to the sunni minority in the south , how the applicant will go through the check points which is manned by shia militias , how he will deal with the government in the south which is a Shia government , how and how and how ?
…
As we stated above the applicant has no familial or tribal connections anywhere in iraq apart from baghdad, that will add more problems as to how he will defend himself in the south , who will protect him and who will stand for him if there is any problem , the UNHCR UNHCR assessed in 2012 that existing tribal and family ties and common religious and ethnic backgrounds in the area of relocation are crucial when assessing the availability of relocation, as they generally ensure a certain level of community protection and access to services, both in towns and rural areas.
…
Par 84 … We would like to concentrate on the fact that the name “omer ” is rarely used by shia population , it is very unlikely to find the name omer in the south of Iraq, more important is the fact if someone with the name “omer ” and he is a shia he will be more vulnerable to persecution than someone who is Sunni , they will perceive this person and his family as having views that challenge the local community in their religion and culture .
Par 150 , The delegate in par 150 commented on the targeting of omar aljafal due to his Sunni faith , the question is how they knew that this person was sunni ? of course through the use of the name “omer” , on the other hand and as we stated above , how can the applicant prove to the militia that he is shia in a country where you the militia rule the society and not the government ? do we really expect that they will follow the rule of law when dealing with someone with the name of “ omer” ? Do we really expect that they will give him a chance to prove that he is a shia ? he did not have any ID to prove that he is a shia , he does not have familial or tribal protection , he father who intervened and protected him in alwashash incident now lives in Romania.
(Spelling and grammar unchanged, emphasis added.)
The IAA’s decision
On 8 July 2016 the IAA affirmed the delegate’s decision not to grant the Appellant a protection visa. The IAA’s reasons are at CB 560-572.
At [3] to [6] the IAA referred to the information before it as follows:
3.I have had regard to the material referred by the Secretary under s.473CB of the Act.
4.On 23 June 2016, the IAA received an eleven page submission from the applicant’s authorised representative. This submission was returned to the authorised representative the same day with a covering letter drawing attention to the requirements of IAA Practice Direction 1 regarding submissions and provision of new information. A revised submission conforming generally with IAA Practice Direction 1 was received by the IAA on 24 June 2016.
5.The revised submission contained discussion around areas of disagreement with the delegate’s decision, as well as items of new information regarding: (1) changing names in Iraq; (2) country information regarding the ability of the Iraqi Security Forces to maintain control; (3) a CNN report about a raid on a Sunni lawmaker's house in Baghdad; (4) arrests of ISIS terrorists in Najaf; and (5) security in Basra.
6.The new information appears to pre-date the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the assessment. I am not satisfied in relation to the matters set out in s.437DD(b) of the Act and am prevented from considering the new information.
It is uncontentious that the IAA thus excluded from its consideration those aspects of the Appellant’s submissions as are highlighted in italics set out at [31] above. Nothing material in this appeal turns on that point. It is uncontentious that, save for the five items the IAA expressly excised as new information, the Appellant’s revised submission was received by and was before the IAA.

Beyond the IAA’s statement at [5] that the Appellant’s submissions “contained discussion around areas of disagreement with the delegate’s decision” there was no other express reference to those submissions in the IAA’s reasons.
The IAA’s reasoning
In respect of the considerations relevant to this appeal the IAA stated its reasons as follows:
Mahdi Army incident in 2010
14. At the SHEV interview the applicant described an incident in 2010 where members of a Shia militia, the Mahdi Army, accused him of being a Sunni after seeing his given name, Omar, on his identity document. After being taken to the local Mahdi Army office, the applicant was released after his father convinced the local Mahdi Army leader that the applicant was Shia and not Sunni. The applicant had no further encounters with Shia militia groups after the 2010 incident.
15. At the SHEV interview the applicant stated that he stopped working for the Anwar Soura construction company in January 2012, around six months before his departure from Iraq. From January 2012 until just prior to his departure from Iraq, he remained in Baghdad where he searched for a job at a government department as well as operated his car as a taxi. At the SHEV interview he stated that he lived at the same Baghdad address until a few weeks prior to his departure from Iraq in July 2012.
16. Country information3 from 2015 notes Baghdad streets had approximately 200 checkpoints (as well as several illegal checkpoints), often manned by Shia militia, to check vehicles and peoples’ identities. Had the applicant been of any interest to Shia militia, they would have had ample opportunity to threaten or harm him, given his work as a taxi driver and the fact that he continued residing at the same Baghdad address. As he remained in Baghdad until July 2012 and had no further issues with Shia militia, I consider the 2010 incident to be an isolated event and find that the applicant was not of interest to Shia militia groups, including the Mahdi Army. I am not satisfied that he has a well-founded fear as a result of the 2010 incident.
…
31. Based on the most recent country information, I accept that there is a risk that the applicant could be killed or seriously harmed in a mass casualty attack targeting Shia in Baghdad. While DFAT has described the violence threatening Baghdad’s Shia population as ‘generalised’, the report makes it clear that Shia are being specifically targeted in these attacks. In these circumstances, the violence is appropriately considered to be targeted against Shia members of the community on the basis of their religion. I am satisfied that if the applicant were to return to Baghdad he would in the reasonably foreseeable future, face a real chance of being killed, or seriously harmed, in a mass casualty attack perpetrated against the Shia community by Daesh or a similar Sunni militant group.
Security situation in southern Iraq
32. Section 5J(1)(c) of the Act states that the real chance of persecution must relate to all areas of a receiving country. At the protection visa interview the applicant stated that he has tribal ties in Nasiriyah, a city in Thi-Qar governorate, from where his father originates and where his two brothers were born.
33. Country information indicates that Thi-Qar is located in southern Iraq and its population is predominantly Shia. DFAT assesses that Shias in the Shia-dominated provinces of southern Iraq are at a low risk of generalised violence. Available reporting indicates that Thi-Qar has seen very few instances of insurgent violence in recent years. After having regard to the overall security situation in the area, I am not satisfied that there is a real chance of the applicant being killed or otherwise harmed as a consequence of violent crime or from a bomb attack resulting from generalised violence if he returned to Nasiriyah. On this basis I am satisfied that the applicant would not face a real chance of persecution as a Shia Muslim if he relocated to Nasiriyah.
Harm arising from given name
34. The applicant claims to fear harm in Iraq because his given name, Omar, is a Sunni name and Shia militia such as the Mahdi Army, will perceive him to be Sunni. The applicant claims Shia militias are targeting people with the name Omar. There are many checkpoints where people are stopped and asked to show their identity documents, especially in Shia areas. Persons named Omar have been taken away and killed by the Shia militias and the applicant is afraid of the same thing happening to him.
35.I accept that there are country information reports of instances of harm occurring to persons in Iraq named Omar, however the available evidence indicates that this is a particular issue in Baghdad, reflecting the high level of Sunni-Shia sectarian tension there. I note that the applicant claimed that the 2010 incident resulted from Shia militia attention to his given name, however as discussed above, I found this to be an isolated incident. It is of note that despite living at the same Baghdad address since 2010, the applicant experienced no further attention because of his given name, even when operating his vehicle in Baghdad as a taxi service.
36. At the SHEV interview the applicant stated that the majority of people bearing his family name, Al [Y], are Shia. However he asserted that a small proportion of Al [Y]s are Sunni and that from the combination of his given name and family name, people will automatically impute him (wrongly) as Sunni. I do not accept this to be the case and consider it to be speculation on the part of the applicant. The applicant’s father originates from Nasiriyah and if the applicant relocates to Nasiriyah, his tribal family name would be known there as Shia, so I do not accept that he would automatically be perceived by local Shia as being a Sunni and persecuted on that basis. The applicant’s family name identifies him as Shia and his tribal ties in Nasiriyah through his father afford him a level of protection to the extent that I find the risk of the applicant being harmed as a result of his name is remote and there is not a real chance that the applicant would be targeted for any s.5J(1)(a) reason.
…
Complimentary Protection assessment
42. I do not accept that the applicant would, if he returned to Nasiriyah, face a real risk of significant harm. I have found the 2006 bus incident to be a random, isolated event. The passage of around ten years since this event coupled with the fact that between at least April 2008 and February 2009 the applicant travelled by road between an Iraqi military base in Wasit and Baghdad without incident, despite taking no particular security precautions, is a strong indication that he was not of interest to Sunni armed opposition groups as a result of the 2006 incident, his Shia beliefs or his work history at the Numaniyah base. I have found the 2010 incident with the Mahdi Army to be an isolated event and that the applicant was not of interest to Shia militia groups, including the Mahdi Army. I do not accept that the applicant would now be of interest to Shia militia, when as outlined previously, the attention of Shia militia groups, including the Mahdi Army, is now focussed on the much larger objective of the fight against Daesh. I am not satisfied that the applicant would upon return to Nasiriyah face a real chance of harm from the Mahdi Army, any other Shia armed group or member of the Shia community, from Daesh or any other Sunni militant group.
…
45. The applicant claims he is unable to relocate anywhere in Iraq due to fear that his given name imputes him as a Sunni. The applicant’s father originates from Nasiriyah and if the applicant relocates to Nasiriyah, his family name would be known there as Shia, so I do not accept that he would automatically be perceived by local Shia as being a Sunni and subjected to harm on that basis. The applicant’s family name identifies him as Shia and while there may be a small proportion of people named Al [Y] who are Sunni, his tribal ties in Nasiriyah through his father afford him a level of protection to the extent that I find the risk of the applicant being harmed as a result of his given name is remote. On the available evidence I am not satisfied the applicant would face a real risk of significant harm in Nasiriyah for reason of his given name now or in in the reasonably foreseeable future.
46. As to whether it is reasonable for the applicant to relocate to Nasiriyah, I note that DFAT has reported that internal relocation to southern Iraq can be a reasonable and practical option for Shia Iraqis. UNHCR has noted that tribal connections in Iraq generally ensure a certain level of community protection. As noted above, the applicant has tribal connections in Nasiriyah, from where his father originates and his two brothers were born. Moreover, Nasiriyah can be accessed through southern Iraq via Basra, which remains a reasonably secure area.
47. While the southern areas of Iraq have experienced the arrival, of a large number of internally displaced persons in recent years, the applicant would not be arriving as an unconnected displaced person. He is tertiary educated and has engineering skills and significant employment experience. DFAT reports that many Iraqis who had sought asylum overseas have now returned to southern Iraq, and taken up senior and middle level jobs in the government and public sector. While the applicant has never lived in Nasiriyah, I am satisfied that his engineering experience on civil infrastructure projects will offset any initial difficulties that may be experienced and that he will be able to find accommodation and earn a livelihood in Nasiriyah. I am satisfied that it would be reasonable for the applicant to relocate to Nasiriyah, an area of the country where there would not be a real risk that he will suffer significant harm.
(Emphasis added.)
JUDICIAL REVIEW OF THE IAA’S DECISION APPLIED FOR
Following the IAA’s decision to affirm the delegate’s decision the Appellant sought judicial review of that decision in the Federal Circuit Court of Australia
The grounds of his application were as follows:
1.The Authority erred in holding that the applicant had stated in his protection interview that he had tribal connections in Nasiriyah, and in relying on this holding to reject claims made by the applicant or to conclude that it was reasonable for the applicant to relocate to Nasiriyah.
2.The Authority erred in failing to consider statements made on the applicant’s behalf that he had no tribal connections in the south of Iraq.
Each ground was accompanied by lengthy particulars. Their recitation is unnecessary.
A written transcript of the interview the delegate conducted with CDH16 was put into evidence before the primary judge.
The accuracy of the transcription was not disputed. Those parts of the written transcript which counsel referred to in the proceedings before the primary judge (and later before this Court) are included at [19] above.
Submissions of the parties before the primary judge
In oral submissions made before the primary judge, counsel for CDH16 submitted that two issues arose in respect of the IAA’s finding at [32] that “[a]t the protection visa interview the applicant stated he has tribal ties in Nasiriyah”:
The first one is the point raised by the Minister: is this statement by the IAA accurate. The answer to that is plainly not. The second point is if it's inaccurate, does the applicant make out a case of jurisdictional error.
(P 3 lines 42-44)
Mr Mostafa, counsel for the then applicant, submitted that the IAA had fundamentally misunderstood the evidence that had been given by the applicant to the delegate and had misrepresented his evidence. That misunderstanding had been material to the IAA’s ultimate rejection of the applicant’s claim that it would not be safe for him to relocate to Nasiriyah and as such was a case of jurisdictional error. It was uncontentious that his mother had been born in Baghdad and that she and his father had lived in Baghdad since their marriage, but his parents had since relocated to Romania with his surviving brother.
Discussion then took place between the bench and counsel for CDH16 regarding where CDH16’s grandparents had lived. A transcript of the proceedings in the court below is in evidence in this appeal as Exhibit FV1 to the affidavit of Farid Varess affirmed on 22 March 2018. Having regard to that transcript I am satisfied that the primary judge accepted Mr Mostafa’s submission that the evidence before the IAA was that the Appellant’s paternal grandparents had lived in Baghdad, and his maternal grandparents in Diyala; neither were in 'the south' (P 5 lines 38-40).
The primary judge then raised with counsel the passages of the transcript between CDH16 and the delegate in which CDH16 had referred to his belonging to the Al [Y] tribe; the majority of which were Shia. Those passages have been set out at [19] above.
His Honour queried whether that was a tribe “at the Al Nasiriyah?” (P 6 line 39). In response, Mr Mostafa submitted that the delegate had found that it was one of the tribes of that area, but submitted that to say one is from a tribe and to say one has tribal ties to a particular area was quite a different thing (P 6 line 41-43).
Counsel submitted that the applicant had made submissions to the IAA referring to the misunderstanding of the delegate (P-11 lines 15-P-12 line 15). Counsel submitted that the fact the applicant’s father had been born in Nasiriyah was not evidence of CDH16 having any connection to that place (P 14 lines 23-28). Mr Mostafa further submitted that it was plain the IAA had not had regard to CDH16’s submissions (P 18 lines16-43).
Counsel for the Minister Mr Kaplan responded to Ground 1 on two bases. The first was that the IAA’s statement in the second sentence of [32] had played no part in the Authority’s reasoning; if it was a factual error it was of no moment.
His Honour was sceptical of that proposition. His Honour responded:
I think that would be a difficult submission to succeed on, Mr Kaplan, for the reason that the issue of relocation and capacity to relocate, the only rational and logical ground advanced is the tribal connection. So it seems to me it falls into a category in that regard where if it is an error, it may or may not be a material error when read as a whole with the balance of the decision.
(P 20 lines 32-36)
Mr Kaplan then advanced the alternative submission that the IAA’s operative reasoning was not subject to error because of the then applicant’s father’s birth at that location, and, critically, the delegate’s reference to the Wikipedia source that supplied a connection between the applicant’s tribe and the applicant’s father’s place of birth (P 22 lines 29-34). Mr Kaplan submitted that to say one has a tribe and on the other hand to say one has no connection to that tribe was to assert a distinction without substance (P 25 lines 22-35).
In respect of Ground 1, counsel for the Minister submitted that the IAA had not failed to have regard to the applicant’s submissions. CDH16’s submission that he had no familial or tribal links in Iraq other than Baghdad was inconsistent with the record that he had grandparents in Diyala (P 26 lines 25-47). CDH16’s submissions had not responded in any meaningful way to the factual finding of the delegate.
The submissions added nothing to what the applicant had already put to the decision maker by reference to the DFAT country report that in respect of Nasiriyah “DFAT was told by some groups that without tribal or political affiliations, state protection is difficult to access” as had been submitted by the applicant by his migration lawyers in his original application (P 29 lines 1-22).
His Honour delivered ex tempore reasons. As are relevant to the grounds of appeal the primary judge held as follows:
44.In relation to ground 1, Mr Mostafa of counsel submitted that the reference in paragraph 32 of the Authority's reasons, which say that the applicant stated that he has tribal ties in Nasiriya at the protection visa interview was wrong in fact and was a material error. Mr Mostafa took the Court to the evidence in relation to the applicant having lived in Baghdad and the balance of his family in terms of parents and another being in Romania, and also the incident that occurred in 2010, in which his father was able to intervene.
45.Mr Mostafa took the Court to the transcript of the interview with the delegate and submitted that nowhere did the applicant expressly say that he has tribal ties in Nasiriyah. Mr Mostafa submitted that the error was a material error in relation to the Authority’s reasoning that the applicant could reasonably relocate and that the applicant did not have a well-founded fear of persecution in the whole of Iraq. Mr Mostafa submitted that the evidence that the applicant had given at the interview in which he had made reference to his father being originally from Nasiriyah was not a statement that the applicant had tribal ties in Nasiriyah.
46.In relation to the applicant’s evidence in the transcript at paragraph 59, “My tribe is Al-[Y],” Mr Mostafa accepted that the tribe with the applicant’s family name was a tribe with connections in Nasiriyah. Mr Mostafa sought to argue that there was a difference between the concept of “my tribe is” and “a connection between my tribe”. That is a distinction without substance. The applicant at the protection visa interview clearly identified that his father was born in Nasiriyah and clearly identified that he had a tribe that he identified with. It is in those circumstances that the Court comes to consider whether or not there is an error by the Authority of fact in paragraph 32.
47.The Authority’s reasons are not to be read with a keen eye for error and are to be read as a whole. The second sentence at paragraph 32 is clearly a summary by the Authority of a combination or propositions. The description of where Nasiriyah is and the observation that that is from where the applicant originates would not reasonably be read as something that the applicant had stated, nor that his two brothers were born in that city, as being something that the applicant had expressly stated. On a fair reading of the Authority’s reasons as a whole, the Authority was summarising the effect of the applicant’s evidence, and the statement that the applicant has tribal ties in Nasiriyah was a statement derivable from and referable to the evidence of the applicant in the interview, that his father was born in Nasiriyah, and that he has a tribe that has a name that is identified by the applicant and that that tribe is one in respect of which there is a connection with the city in which the applicant’s father was born.
48.That it is the applicant’s father’s name is also of significance in relation to that finding being open to the Authority on the evidence before the tribunal. There was no error in paragraph 32 on a fair reading of the Authority's reasons as a whole. In that regard, it is of importance that the Authority expressly referred further in its reasons to Nasiriyah being a place where the applicant’s family name is known as Shia and made express reference to the applicant having tribal connections in Nasiriyah from where his father originates and his two brothers were born. I accept the first respondent’s submission that if there was an error in relation to paragraph 32 as a literal statement of quotation, it was not a material error.
49.The Authority’s reasons in relation to relocation correctly identify the applicant’s father's place of birth and that the applicant’s father's name was connected with that city, and the applicant himself had accepted that he had an existing tribe. It was open to the Authority to make the adverse findings in relation to relocation. On a fair reading, those adverse findings were not based on an error as to what the applicant had stated but were based upon where his father had come from and the applicant having admitted a tribal connection with that city through his father. Accordingly, no jurisdictional error as alleged in ground 1 is made out.
Ground two
50.In relation to ground 2, on a fair reading of the Authority’s reasons, it is apparent that the Authority had regard to the submissions provided by the applicant’s migration agent.
51.The issue taken in those submissions as to whether the applicant had familial or tribal ties with a particular city was not a material submission of substance with which the Authority had to expressly refer, and I accept the submissions of the first respondent that the assertion in those submissions that the applicant had no familial ties with the city was inconsistent with that part of the submission that identified the applicant’s father was born there. The submission was also contrary to the applicant’s admission of a tribe. There is no substance in the proposition that the Authority failed to have regard to the submissions in relation to the familial ties, or that that constituted new information that the Authority disregarded under s.473DD. The limited information excluded under s.473DD was clearly identified by the Authority. No jurisdictional error was made out as alleged in ground 2.
APPEAL TO THIS COURT

On 14 June 2017 the Appellant filed an appeal from the primary judge’s decision in the Federal Court of Australia. The grounds of that appeal subsequently have been amended by consent. The Minister has also filed a notice of contention.
The Court has set out the background to this appeal in greater length than usual because otherwise the somewhat complex grounds of appeal now before the Court would make little sense. As amended the appellant’s grounds of appeal are as follows:
Grounds of Appeal
1.The Federal Circuit Court (FCC) erred in failing to find that the decision of the Immigration Assessment Authority (Authority) was affected by jurisdictional error as a result of the Authority’s unreasonable or irrational finding that the applicant had stated in his protection visa interview (Interview) that he had tribal ties in Nasiriyah, or as a result of the Authority fundamentally misunderstanding the appellant’s evidence in the interview.
Particulars
a.At [32] of the Authority's decision (Decision), the Authority stated that at “the protection visa interview the applicant stated that he has tribal ties in Nasiriyah, a city in Thi-Qar governorate, from where his father originates and where his two brothers were born”.
b.In concluding that it would be reasonable for the applicant to relocate to Nasiriyah on return to Iraq, the Authority stated that “the applicant has tribal ties (connections) in Nasiriyah”: Decision [46].
c.The appellant did not state in the Interview that he had tribal ties in Nasiriyah.
d.In the Interview, the appellant stated that his tribe was “Al-[Y]”, with “Al-[Y]” being the applicant’s last name: see CDH16 v Minister for Immigration and Border Protection [2017] FCCA 1063 (CDH16) at [25], [46]. The Delegate held that the tribe “Al-[Y]” was a tribe of Nasiriyah, but did not discuss with the applicant whether the applicant had tribal connections in Nasiriyah.
e.        The FCC erred in holding that:
i.the appellant’s statement that his tribe was “Al-[Y]” was no different to the applicant stating that he had a connection with the “Al-[Y]” tribe:
ii.the Authority's statement at Decision [32] was an accurate summary of the effect of the applicant's evidence: CDH16 at [47];
iii.if there was an error in Decision [32], the error was not a material error: CDH16 at [48].
f.The FCC should have found that Decision [32] reflected that the Authority had fundamentally misunderstood the appellant’s evidence in the Interview, that there was no basis for finding that the appellant had stated that he had tribal ties in Nasiriyah, and that the Authority’s ultimate finding that it was reasonable for the appellant to relocate to Nasiriyah was affected by jurisdictional error as a result.
2.The FCC erred in failing to hold that the Authority had erred in failing to consider and determine relevant submissions of substance made by the appellant.
Particulars
a. On 23 June 2016, the appellant provided a submission to the Authority (the Submission).
b.        The Submission included submissions that:
i.“the applicant has no familial or tribal connections in the south of Iraq, he and his family lived all of their life in Baghdad”;
ii.“the applicant has no familial or tribal connections anywhere in iraq apart from Baghdad”;
iii.the applicant “does not have familial or tribal protection , he [sic] father who intervened and protected him in alwashash incident now lives in Romania”.
c.The Authority found that it would be reasonable for the appellant to relocate to Nasiriyah, and in doing so relied upon the appellant having tribal connections in Nasiriyah: Decision [46].
d.The Authority made no reference to any of the submissions referred to at (b) above, other than an overarching statement that the Submission (which contained submissions other than those outlined above at (b)) “contained discussion around areas of disagreement with the delegate's decision”: Decision [5].
e.In holding that the Authority had not erred in failing to consider and determine relevant submissions of substance made by the appellant, the FCC erred in:
i.holding that the submissions referred to at (b) above were not material submissions of substance: CDH16 at [51];
ii.holding that it was inconsistent for the applicant to submit that he had no familial ties in Nasiriyah when his father had been born there (CDH16 at [51]) in circumstances where:
A.the appellant’s father, mother and remaining living brother lived in Romania (CDH16 at [8]);
B.the appellant’s paternal uncle had also been granted a visa to Romania (CDH16 at [8]);
C.the appellant’s paternal grandparents lived in Baghdad;
iii.holding that the appellant’s submissions were “contrary to the applicant’s admission of a tribe”: CDH16 at [51].
f.The FCC should have held that the appellant’s submissions were material submissions of substance, and that the Authority had failed to consider and determine them, thereby falling into jurisdictional error: SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [95].
3.In the alternative to ground 2 above, the FCC erred in failing to hold that the Authority had erred in failing to consider new information placed before it by the appellant without considering whether the new information satisfied s 473DD.
Particulars
a. In rejecting the appellant’s application for a Safe Haven Enterprise visa, the delegate of the first respondent (Minister) found that the applicant “would continue to have familial or tribal connections in Nasiriyah that would benefit his relocation to southern Iraq”: AB 272 [183].
b. On 23 June 2016, the appellant provided a submission to the Authority (the Submission).
c.        The Submission included statements that (the Statements):
i.“the applicant has no familial or tribal connections in the south of Iraq, he and his family lived all of their life in Baghdad”;
ii.“the applicant has no familial or tribal connections anywhere in iraq apart from Baghdad”: AB 541[1].
d. The Authority did not consider whether the Statements met the test set out in s 473DD of the Act, and did not consider those statements in conducting its review under s 473CC(1) of the Act.
e. In holding that the Authority had not erred in failing to consider the Statements without considering whether the Statements met the test set out in s 473DD, the FCC erred in holding that the Statements did not constitute new information: CDH16 at [51].
f. The FCC should have held that the Statements were new information that the Authority had failed to consider without considering whether the Statements met the test set out in s 473DD.
4. The FCC constructively failed to exercise its jurisdiction in relation to, or erred in failing to give sufficient reasons for dismissing, the second ground of the application that was before it.
Particulars
a.The FCC’s reasons for dismissing the second ground of the application before it (CHD16 [50]-[51]) suffer from one or more of the following deficiencies that show that the FCC failed to address the case that was put to it, or that the reasons of the FCC were insufficient:
i.stating significant conclusions for which no, or insufficient, reasoning is provided;
ii.        mischaracterising submissions that were put to the FCC;
iii.        failing to respond to submissions that were put to the FCC;
iv.being so brief as to suggest a failure to discharge the FCC's duty.
(Emphasis omitted.)
The Minister's notice of contention (as appears as an annexure to the Minister’s written submissions of 30 October 2017) is as follows:
Ground relied on
The primary judge ought to have rejected ground 1 in the amended application filed on 31 January 2017 on the basis that the statement made by the second respondent in the second sentence in [32] of its reasons for decision played no part in its consideration and determination of the appellant's claim that it was not reasonable for him to relocate within his receiving country.
Grounds 1 and 2 of this appeal thus essentially rearticulate (albeit in slightly differently expressed terms and particulars) the same two grounds the Appellant advanced before the primary judge. The Minister’s notice of contention essentially rearticulates an aspect of the oral submissions the Minister made in response in the court below.
Grounds 3 and 4 of this appeal are advanced for the first time before this Court.
It is convenient first to address the two grounds of the appeal (and the notice of contention which also arises) that were, in substance, before the primary judge.
The Appellant’s submissions on Grounds 1 and 2
The Appellant filed written submissions and provided a summary of CDH16’s contentions as follows:
3. Ground 1 relates to errors made by the FCC in dealing with the appellant’s case below insofar as that case alleged that the IAA had fundamentally misunderstood the appellant’s evidence. In short, the IAA attributed to the appellant a statement that he “has tribal ties in Nasiriyah”, said to have been made by the appellant in his interview with the Delegate. Yet the transcript of the appellant’s interview with the Delegate (see CB 580-642) shows that the appellant made no such statement. The IAA then relied on the supposed fact that the appellant had tribal ties in Nasiriyah when concluding that it would be reasonable for the appellant to relocate to Nasiriyah. That being so, the IAA’s ultimate finding, that s 36(2B)(a) of the Act applied so as to prevent the appellant satisfying s 36(2)(aa), is affected by jurisdictional error. The IAA engaged in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds: cf Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [64]-[65], [71]-[72], [82]. The FCC erred in holding otherwise.
4.Ground 2 relates to errors made by the FCC in dealing with the appellant’s case below that the IAA failed to evaluate relevant submissions of substance that had been made to the IAA. Those submissions were to the effect that the appellant lacked tribal connections outside of Baghdad. Despite these submissions having been made, as the facts set out below show, the IAA simply assumed that, rather than giving consideration to whether, the appellant had such tribal connections in Nasiriyah. The failure to engage with the appellant’s submissions on this point involved an error: SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 at [95]…
CDH16’s submissions then referred to the evidence which had been before the Delegate, the IAA and the FCCA.
The Appellant’s submissions continued:
Ground 1
21.As is stated in the NoA at [1.f], the FCC should have found that [32] of the Decision reflected that the IAA had fundamentally misunderstood the appellant’s evidence in the Interview, that there was no basis for finding that the appellant had stated that he had tribal ties in Nasiriyah, and that the Authority’s ultimate finding that it was reasonable for the appellant to relocate to Nasiriyah was affected by jurisdictional error as a result.
22.There are three errors that were made by the FCC that prevented it from reaching this conclusion. The first (NoA [1(e)(i)]) is the FCC’s holding (Judgment [46]) that there was no difference between the statement that “my tribe is Al-[Y]” (which the appellant said - see [19] above) and the appellant having a connection with the Al-[Y] tribe. In this respect, it should be noted that Al-[Y] is the appellant's surname: see, eg, CB 560. It is one thing to accept that one’s tribe is the tribal name that one carries. It is quite another to identify oneself as having any connection with that tribe (and yet another to identify oneself as having tribal ties in a particular city). The appellant did not state that he has such ties.
23.The second error of the FCC was to treat the statement in [32] of the Decision, that the appellant “stated that he has tribal ties in Nasiriyah”, as an accurate summary of the appellant’s evidence: Judgment [47]; NoA [1(e)(ii)]. In this respect, the FCC treated the IAA’s statement as a being the IAA’s conclusion based on a number of pieces of evidence: see the last sentence of Judgment [47]. But the IAA did not, in making the relevant statement at Decision [32], purport to have concluded, based on all the evidence before it, that the appellant had tribal ties in Nasiriyah. The IAA simply said that the appellant had said that he had such ties. That is how the Decision should be read. The IAA was incorrect at Decision [32], and the FCC erred in holding otherwise.
24.Thirdly, the FCC erred in holding that, if there was an error in Decision [32], the error was “not a material error”: Judgment [48]; NoA [1(e)(iii)]. The FCC referred to matters such as the appellant's father and brothers having been born in Nasiriyah, and Nasiriyah being a place where the applicant's family name was known as Shia: Judgment [48]. It is not clear for what point the FCC was relying upon those matters, but given that the matters are referred to in the lead up to the holding that any error at Decision [32] was not material, it appears that the FCC was of the view that, even if the IAA had misunderstood the appellant’s evidence (as alleged), no jurisdictional error would be made out.
25.The preferable view is that the IAA fundamentally misunderstood the appellant's evidence: cf Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 (Gill) at [71]-[72]. Once it is accepted that the appellant did not say that he had tribal ties in Nasiriyah, it must be accepted that there was no logical basis or probative evidence to support the IAA’s conclusion that the applicant had said that he had such ties. The next step is to enquire as to whether the IAA’s error in this respect was of sufficient significance to the IAA’s conclusion that s 36(2B)(a) applied so as to warrant a finding of jurisdictional error.
26.In this respect, the approach of Griffiths and Moshinsky JJ in Gill is instructive. There, the Administrative Appeals Tribunal (Tribunal) had perceived Gill to have referred to making “Risottos”, whereas Gill had actually referred to “rizolos” (which, in context, meant “rissoles”): Gill [22]-[23], [31], [69]-[70]. The plurality stated that the “Tribunal’s misunderstanding that the appellant was referring to ‘risotto’ was an important part of the Tribunal’s reasoning for concluding that the work experience letter was not genuine and the appellant was not a credible witness”: at [70].
27.The plurality referred to other findings by the Tribunal, some of which were, and some of which were not, properly characterised as illogical or lacking probative evidence: at [73]- [77]. Their Honours noted that there were a number of other matters, not impugned by Gill, that the Tribunal had relied upon in concluding that the relevant letter was not genuine and that Gill’s evidence was not credible: at [79]. The Minister submitted that those matters showed that the erroneous fact-finding by the Tribunal on matters such as the risotto matter were immaterial: at [79]. At [82], the plurality rejected that submission on the basis that it could not be said that the Tribunal's weighing up of all the relevant factors “would have produced the same outcome if the Tribunal had not taken into account its illogical and erroneous findings of fact… In other words, this is not a case where illogical findings of fact were not material to the Tribunal’s ultimate conclusions”.
28. In the present case, as noted above at, a necessary step in the IAA’s reasoning that the appellant did not satisfy s 36(2)(aa) was that the appellant could reasonably relocate to Nasiriyah. As set out above at [13] and [15], the IAA’s finding on the question of relocation relied upon the finding that the appellant had tribal connections in Nasiriyah, which was a fact that the IAA perceived that the appellant had stated was the case during the Interview. But the appellant never said any such thing. The finding that he had said that he had such ties was irrational or illogical, because there was no evidence to support it.
29.Absent the IAA’s illogical and irrational finding, it cannot be said that the IAA would have concluded that the appellant had tribal ties in Nasiriyah: cf Gill at [82]. Put another way, this is not a case where the illogical and irrational finding was “not material to the Tribunal's ultimate conclusions”: Gill at [82]. Plainly enough, the appellant’s purported statement that he had the relevant tribal ties would have carried great weight insofar as the IAA’s finding that he had such ties was concerned. The finding that the appellant had those ties led the IAA to conclude that it was reasonable for the appellant to relocate, which led the IAA to conclude that he did not satisfy s 36(2)(aa). The case may be contrasted with cases such as Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577, where the Tribunal drew upon a number of matters “singularly and cumulatively” in support of a finding that SZOCT was not a credible witness: at [83]. Because the Tribunal’s conclusion on credibility (which was ultimately fatal to SZCOT’s visa application) was supported by a number of matters independently of one another (as well as cumulatively), the fact that there had been illogical or irrational reasoning in relation to one of those matters was insufficient to demonstrate jurisdictional error: at [83]-[84]. That is not what occurred in the present case.
30.For the reasons outlined above, the FCC erred as outlined in ground 1 of the NoA.
Ground 2
31.Ground 2 relates to the FCC’s failure to hold that the IAA failed to evaluate submissions of substance that were made to it. In particular, as outlined above at [12], submissions were made to the IAA that the appellant had no tribal connections in southern Iraq, or anywhere in Iraq apart from Baghdad, that he and his family had lived all their life in Baghdad, and that he did not have familial or tribal protection in light of his father now living in Romania.
32.Failure to evaluate “relevant submissions of substance which were clearly articulated and were made by or on behalf of” an applicant constitutes jurisdictional error: SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 (SZSSC) at [82]. The error is a constructive failure to exercise jurisdiction: SZSSC at [80], [81(d)].
33.The principles to be applied in determining whether a jurisdictional error of this nature has been made include that:
a.the submission should be one of substance and that is clearly articulated. Substantiality may be established, for example, where the submissions is [sic] made in response to an important issue that the decision maker has raised: SZSSC at [81(a)];
b.it is appropriate to “pay careful attention to the structure” of the decision maker’s reasons, including the manner in which the reasons describe and deal with the submissions made by the applicant: SZSSC at [81(e)];
c.in determining whether the submission is one that the decision maker was obliged to consider, regard should be had to its place in the assessment of the applicant's claims: SZSSC at [81(f)];
d.if the submission is a contention which, if accepted, might have established that the applicant “had a well-founded fear of persecution for a Convention reason”, it is more likely to be a submission to which consideration had to be given: SZSSC at [81(c)]; MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425 at [57]. The same must be true if the submission is one which, if accepted, might have established that the applicant satisfied the criterion in s 36(2)(aa).
34.In the context of the IAA, some further matters should be added to this list. In determining whether a submission is a submission of substance that was clearly articulated, one must have regard to the facts that:
a. there will usually not be a hearing before the IAA: s 473DB(1)(b). The applicant thus will usually have no opportunity to make submissions to the IAA orally;
b.the IAA’s practice direction (AB 525-8) places a very short page limit (five pages) on the length of written submissions that may be provided to it. The application of this rule is well illustrated in the present case, where the appellant’s initial submission to the IAA was rejected on the basis that it was more than five pages: see [11] above. Thus not only was the appellant in the present case unable to make oral submissions to the IAA, he was significantly constrained in how far he could develop his submissions in writing because of the IAA’s five page rule.
35.The Statements were a clearly articulated submission on the question of whether the appellant had tribal ties in Nasiriyah. As outlined at [12] above, the point that the appellant did not have such ties was made a number of times in the Submission, despite the short page limit applied by the IAA. The submission was one of substance. It responded to an issue that, as outlined above at [10], was first raised in the Delegate's decision and which the appellant could not have made submissions on prior to the Submission. The issue was a critical one in the Delegate's decision, and in the Decision of the IAA on review. The submission thus had an important place in the assessment of the appellant's claims. It was a submission that, if accepted, could well have resulted in a finding that the appellant satisfied s 36(2)(aa). In light of these matters the IAA had an obligation to evaluate the submission.
36.The IAA failed to discharge that obligation. The facts are set out above. As noted at [16] above, the relevant submissions are not even mentioned by the IAA, and, leaving aside the question of new information, the IAA said nothing in relation to the Submission except that it “contained discussion around areas of disagreement with the delegate's decision”.
37.The IAA’s failure to refer to the submissions outlined at [12] above at all is stark in light of the significance that the issue of whether the applicant had tribal ties in Nasiriyah played in the IAA's holding under s 36(2B)(a). It is simply not tenable that the submissions were evaluated when, despite their being made on an issue that was ultimately critical to the IAA’s decision, there is no mention of them by the IAA. Indeed, the IAA’s approach at Decision [32] confirms that the IAA simply did not consider the relevant submissions. If the IAA had had regard to those submissions, it would be strange indeed for the IAA to state that the applicant himself had stated that he had “tribal ties in Nasiriyah” without adverting to the fact that his submissions said quite the opposite. One would expect that incongruity to have been explored by the IAA.
38.The absence of any such exploration, the failure to refer to the relevant submissions at all, and the fact that the IAA's statement that the Submission “contained discussion around areas of disagreement with the delegate’s decision” is the only possible reference to the submissions, all support the view that the IAA failed to evaluate the appellant's submissions on the question of tribal ties in Nasiriyah.
39.That being so, the IAA left its jurisdiction constructively unexercised. The FCC should have so held: NoA [2(f)]. Instead, the FCC’s reasoning, which, with respect, is extremely brief, appears at Judgment [50]-[51]. The holding that the relevant submissions were not “material submissions of substance” (at [51]) is merely a statement of conclusion, not supported with any reasoning. For the reasons outlined above, it is incorrect. The statement (at [51]) that the appellant's submissions were inconsistent with his father having been born in Nasiriyah overlooked that the evidence suggested that none of the appellant’s family or appellant’s father’s family lived in Nasiriyah anymore: Judgment [8]; AB 593.20-4. And the statement (at [51]) that the applicant’s submissions were “contrary to the applicant’s admission of a tribe” just highlights that the FCC mischaracterised the significance of the appellant having said, in the Interview, that his tribe was Al-[Y]. Plainly enough, the fact that the submissions were being made showed that this statement by the appellant was not conclusive of the quite different question of whether the appellant had any tribal ties in a particular city in the south of Iraq. The FCC's reasons in Judgment [51] did not provide a compelling basis for holding that the IAA had not erred in failing to consider and determine relevant submissions of substance.
The Minister’s submissions on Grounds 1 and 2 and Notice of Contention

The Minister’s written submissions joined issue with those propositions as follows:
Ground 1
7.        There are three responses to ground 1.
8.First, the observation made by the Authority at AB 568 [32] that “[a]t the protection visa interview the applicant stated that he has tribal ties in Nasiriyah, a city in Thi-Qar governorate, from where his father originates and where his two brothers were born” was an accurate statement read fairly in the light of the appellant’s evidence before the delegate and, importantly, the delegate's reasons for decision.
9.The appellant’s evidence before the delegate relevantly comprised the following:
•In his visa application form, the appellant stated that his father and two brothers were born in Nasiriyah, Iraq: AB 72.
•In his first statutory declaration made on 26 July 2013 (AB 92-98), the appellant described, from AB 94 [21], an alleged robbery that he says occurred in the middle of 2010 in a Shia area in Iraq. At AB 94 [25], he says that he was interrogated by the Al Mahdi Army to see if he was really a Shia. He says that he maintained that he is Shia and explained that his father used to teach in the area. The interrogator then asked him from where the appellant came, to which he responded that “[his] father was from Al Nasiriyah.” That the appellant considered the place from whence he came to be his father's hometown of Nasiriyah is telling, as it confirms the impugned observation at AB 568 [32].
•In the transcript of the hearing before the delegate, the appellant variously said the following: he was “one of the [Al Y]”; that that “symbolise[d] the Shia”; that his father “used to be a teacher at [a] school [in Washash]” and was “well known in that area”; that his father was from Al Nasiriyah (in response to a question from a captor as to the appellant’s place of birth); and that, once it was confirmed that his father was from Al Nasiriyah, his captors released him: AB 631(23)-632(5).
•Later in the interview, the appellant said that “[his] tribe is [Al Y]”: AB 637(5).
10.In his reasons for decision, the delegate, having referred to country information on the security situation in southern Iraq, said the following (at AB 272 [183]):
I also note that the applicant stated at the PV interview that his father originates from Nasiriyah, which is located in Dhi Qar Governorate in southern Iraq, where Shia constitutes the majority. He also stated that his brothers were born in Dhi Qar Governorate. At interview he claimed that he belonged to the [Al Y] tribe. Country information shows that the [Y] tribe, the spelling of which I consider to be a version of [Al Y], is one of the tribes of Nasiriyah. DFAT was told by some groups that without tribal or political affiliations, state protection is difficult to access. While the applicant's father is currently living in Romania with the applicant's mother and brother, I consider that the applicant would continue to have familial or tribal connections in Nasiriyah that would benefit his relocation to southern Iraq.
11.The delegate’s reasoning in this paragraph may be said to comprise the following steps:
a)        The appellant’s father originated from Nasiriyah in southern Iraq.
b)        Shias comprise the majority in that city.
c)In the interview, the appellant stated that he belonged to the [Al Y] tribe.
d)Country information indicated that [Al Y] is one of the tribes of Nasiriyah.
e)The appellant would continue to have familial or tribal connections in Nasiriyah that would be a factor in favour of his relocating to that place.
12.Thus, the Authority’s observation, not factual finding, at AB 568 [32] needs to be read in the light of the delegate’s reasons for decision and the country information cited by him (which, by reason of s 473CB(1), was before the Authority). It is true that the appellant did not state at the interview, in so many words, that he “has tribal ties in Nasiriyah”. However, contrary to what appears to be suggested by the appellant at [22]-[23] of his submissions, the Authority was not purporting to attribute a direct quote to him in that paragraph (as it did elsewhere in its reasons at AB 563-564 [12], 565 [20] and 566 [23], [24]). When the appellant's evidence given at the hearing is viewed in context, especially in the light of the delegate's reasons at AB 272 [183], it is clear that the Authority’s observation was a fair one and accurately stated the effect of the appellant’s evidence. The primary judge was correct so to hold at AB 657-658 [46]-[49]. The Full Court's judgment in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51, therefore, is inapposite in the present context.
13.Secondly, as the primary judge observed at AB 658 [48], even if the Authority incorrectly described the appellant’s evidence during the hearing before the delegate at AB 568 [32], and relied upon that description when it came to make its findings at AB 571 [45]-[46] that the appellant had tribal links to Nasiriyah in the light of his father’s background and could reasonably relocate to that city, the result is not jurisdictional error. This was not a case where there was reasonably open to the Authority only one conclusion. Another reviewer, acting reasonably, could have comfortably made the same findings on the basis of the same material. That material included the appellant’s father’s background, the appellant’s evidence that he was a member of the [Al Y] tribe and the country information that referred to that tribe as one of the tribes of Nasiriyah.
14.Thirdly, and relatedly, even if the Authority incorrectly described the appellant’s evidence during the hearing before the delegate at AB 568 [32], the result cannot be jurisdictional error for the reason that the impugned statement played no part in the Authority’s assessment of internal relocation. The following parts of the Authority’s reasons bear this out.
15. At AB 569 [36], the Authority found that the appellant’s “family name identifies him as Shia and his tribal ties in Nasiriyah through his father afford him a level of protection to the extent that [it] find[s] the risk of the [appellant] being harmed as a result of his name is remote and there is not a real chance that the [appellant] would be targeted for any s 5J(1)(a) reason.” This finding was based on the appellant’s oral and documentary evidence, which the Authority correctly summarised earlier in that paragraph. Almost identical findings were made at AB 571 [45]. Later, at AB 571 [46], the Authority said, “[a]s noted above, the [appellant] has tribal connections in Nasiriyah, from where his father originates and his two brothers were born.”
16.In none of these paragraphs did the Authority rely on the fact that the appellant said that he had tribal connections to Nasiriyah at the hearing before the delegate. No reference was made in any of those paragraphs to the Authority’s earlier statement at AB 568 [32]. Instead, the Authority relied upon the fact that the appellant had tribal links to Nasiriyah. That was a conclusion reached not on the basis of the statement at AB 568 [32], but, rather, on matters that included the fact of the appellant's father originating from Nasiriyah, his family name being recognised there as Shia, and his tribe being [Al-Y].
17.For these reasons, the statement at AB 568 [32] played no part in the Authority’s fact- finding process and its conclusion that it was reasonable for the appellant to relocate to Nasiriyah. Any error made by the Authority at AB 568 [32], therefore, was not jurisdictional, as its exercise of power under s 473CC(2)(a) to affirm the delegate’s decision was unaffected by that statement.
18.Given the primary judge’s conclusion in the final sentence in AB 658 [48], it is unnecessary for the Minister to file a notice of contention in order to advance the argument made at [14]-[17] above. Out of abundant caution, however, the Minister will seek leave at the hearing of the appeal to file, and rely upon, the draft notice of contention annexed to these submissions. In so far as a notice of contention is required, the Minister submits that leave ought to be granted for the following reasons:
•The argument is, in substance, the same as that which is advanced at [13] above. It differs only in detail and emphasis.
•The argument raises a pure question of law. It will be unnecessary, therefore, for the appellant to adduce evidence to meet the argument. Nor would the appellant have had to adduce evidence before the primary judge to meet the argument.
•It is desirable for the Court to reach the correct outcome in this case. It has the power, under s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), to uphold the primary judge's orders “even if it does not embrace the reasons for those orders”.
•It would be consistent with the overarching purpose of the civil practice and procedure provisions to grant leave: see s 37M of the Federal Court Act.
Ground 2
19.In this ground, the appellant contends that the primary judge made an appealable error by holding that the Authority did not fail to take into account the submissions which the appellant’s then representative made on his behalf. Those submissions were to the effect that the appellant did not have tribal connections outside of Baghdad. They relevantly provided as follows:
•The appellant “stated that his father was born in Nasiriyah, while the rest of the family were born in Baghdad, he stated that in his interview with the department, all his family lived in Baghdad and in Baghdad only, he has no relatives anywhere else in Iraq apart from his grandparents home in Khan Bani Saad in Diyala which is one of the most dangerous places in Iraq”: AB 552.
•The appellant “has no familial or tribal connections in the south of Iraq, he and his family lived all of their life in Baghdad”: AB 553.
•The appellant “has no familial or tribal connections anywhere in Iraq apart from Baghdad, that will add more problems as to how he will defend himself in the South”: AB 553.
20.      There are two responses to this ground.
21.First, the appellant cannot demonstrate, as he must, that the Authority overlooked those parts of his submissions to the Authority where he said that he has no tribal links in the south of Iraq.
22.The Authority referred to the appellant's submissions at AB 561 [4] (final sentence) and [5]. It can reasonably be inferred from the Authority’s having listed those parts of the submissions that it excluded from consideration that it had regard to the balance of the submissions (which it accurately described as “discussion around areas of disagreement with the delegate's decision”). The fact that those parts of the submissions upon which the appellant presently relies were not referred to expressly in the Authority’s reasons does not mean that they were overlooked, contrary to [36]-[37] of the appellant’s submissions; rather, in the light of the Authority’s limited obligation to give reasons and make findings of fact in s 473EA(1) of the Act (read with s 25D of the Acts Interpretation Act 1901 (Cth)), like the limited obligation imposed on the Administrative Appeals Tribunal by s 430(1) of the Act, the proper inference to draw from this is that the Authority considered the submissions to be immaterial.
23.Contrary to [35] of the appellant’s submissions, the submissions to the Authority were not ones of substance. They did not respond, in any meaningful way, to the delegate’s reasons, unlike the submissions in question in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365, which sought to respond directly to the decision-maker’s stated concerns (see at [87] per Griffiths J). They were not submissions of substance that advanced a point that was substantial, clearly articulated and relied upon established facts; rather, they made baseless assertions of fact.
24.Moreover, the submissions were contradictory, thereby contributing to their immateriality and lack of substance. At AB 553, for example, the appellant said that he “has no familial or tribal connections anywhere in Iraq apart from Baghdad”. On the previous page, however, at AB 552, the appellant referred to his grandparents residing in Khan Bani Saad in Diyala. There was, therefore, acknowledgment by the appellant that he had ties to other parts of Iraq. Indeed, the delegate said as much at AB 247 [48]. There, the delegate noted the appellant’s evidence that his maternal uncles resided in Khan Bani Saad, a city located approximately 100 kilometres from Baghdad. It follows, therefore, that the submissions did not seek to correct any factual finding made by the delegate; on the contrary, they confirmed that he had familial connections outside of Baghdad despite what he said in his submissions to the Authority.
25.      For these reasons, the primary judge's conclusion at AB 659 [51] is correct.
26.Secondly, even if it were assumed that the Authority overlooked the submissions (which the Minister does not concede), the result is not jurisdictional error.
27.The issue to which those parts of the submissions upon which the appellant relies went, namely, whether he had tribal and/or familial ties outside of Baghdad, was addressed by the Authority. In the face of this, it cannot be said that the submissions to the Authority played an important part in the resolution of the appellant’s claim that it would not be reasonable for him to relocate to the south of Iraq.
28.The appellant’s submissions also did not add anything of substance to the written submissions that he had made to the delegate, both at the time that he applied for a visa (AB 53-54) and after the hearing (AB 205), as well as his oral submissions at the hearing: AB 635, 637. In those submissions, the appellant claimed that he could not relocate to the south of Iraq because his name identified him as a Sunni and he would not, therefore, be seen to be a Shia. The Authority considered this material, as it was required to do by reason of s 473DB(1) of the Act: AB 561 [3].
(Footnotes and emphasis omitted.)
It is also convenient at this juncture to set out the Minister’s supplementary submissions on his notice of contention to summarise the position the Minister took in relation to that question:
24. It has never been a part of the appellant’s case that the Authority misstated his evidence given during the hearing before the delegate by referring to Nasiriyah as “a city in Thi- Qar governorate, from where his father originates and where his two brothers were born”; rather, it has only been that the appellant did not say, in so many words, that he “has tribal ties in Nasiriyah”. Accordingly, the fact that there is a reference, at AB 571 [46], to Nasiriyah being a city “from where [the appellant's] father originates and his two brothers were born” does not hinder the Minister’s contention. The fact remains that the Authority’s unchallenged finding, at AB 569 [36], that the applicant’s “tribal ties in Nasiriyah through his father afford him a level of protection to the extent that I find the risk of the [appellant] being harmed as a result of his name is remote” was based on his evidence and submissions summarised elsewhere in that paragraph. As submitted previously, relevantly identical findings were made by the Authority at AB 571 [45]-[46]. There is nothing in any of those paragraphs to suggest that the Authority's findings as to the appellant having tribal “ties” or “connections” to Nasiriyah was based on what the Appellant had said during the interview and not the result of the Authority’s assessment of the whole of the evidence. Put another way, it is open to this Court to infer from [36] and [45] to [46] of the Authority’s reasons that it concluded that the appellant has tribal ties or connections to Nasiriyah in the light of the evidence that his father originated from that city, Shias comprise the majority in that city, his evidence that he belonged to the [Al-Y] tribe, and the country information before the Authority which established that it was one of the tribes of Nasiriyah.
CONSIDERATION
Ground 1
Given the structure and order of the IAA’s reasons I am satisfied that what is stated by the IAA at [32] cannot be read as summarising a conclusion it had reached after the process of reasoning referred to by the respondent in the Minister’s written submissions at [11]. The IAA’s statement at [32] that “at the protection visa interview the applicant stated that he has tribal ties in Nasiriyah” precedes rather than follows the IAA’s reference to his father’s place of birth, and occurs prior to the Authority considering any of the other matters which the Minister refers to.
In context, it stands as a statement of fact upon which the IAA’s further reasoning was then built and structured.
It is well accepted that a tribunal’s decision, including a decision of the IAA, is not to be read with an eye finely attuned to error. However, in my opinion the primary judge was wrong to conclude that a fair reading of the IAA’s reasons at [32] was that it summarised the effect of the total of the Appellant’s evidence. To so construe it would be to turn the reasons of the Authority on their head, not to read them fairly.
I am satisfied that his Honour erred in concluding at [46] that, in the context of the Appellant’s claims for protection, his membership of a particular tribe and his connection with it (in Nasiriyah) was relevantly a distinction without substance.
What was relevant to the statutory question the IAA had to address was the practicality and reasonableness or otherwise of the Appellant’s relocation to the south of Iraq where the Shia were in majority. That did not involve an abstract genealogical issue regarding CDH16’s heritage. The legal issue the IAA was required to address was whether, having regard to the evidence and notwithstanding the Appellant being a Shia, the IAA could conclude it to be a practical and reasonable option for the Appellant to relocate to Nasiriyah in light of his claim that his birth name (as recorded in his identity documents) might lead him to be suspected (wrongly) of being a Sunni. In turn that depended on whether or not in reality he would have someone other than his father he could turn to to vouch for him if he were wrongly accused of being Sunni. That was a practical not an abstract genealogical issue.
The error was in respect of a centrally material matter. A conclusion that it was not could only be made if the IAA misapprehended its legal duty.
It was uncontentious before the IAA that a Sunni could not safely relocate to southern Iraq. D’Ambra Murphy had drawn attention to that circumstance in its original submission on CDH16’s behalf where it had drawn attention to DFAT’s conclusion (CB 54):
5.26 Overall, DFAT assesses that internal relocation to southern Iraq might be a reasonable and practical option for Shia. However in practice it would be difficult for Sunnis or other minorities fleeing violence elsewhere in Iraq.
The IAA quoted the first sentence of that assessment at [46] of its reasons. It is impossible to suggest the second sentence would have escaped the IAA’s attention given that that reference was followed by the IAA’s observing that the United Nations High Commissioner for Refugees had noted that tribal connections in Iraq generally ensured a certain level of community protection. Moreover, the reasons of the delegate recorded at [183] that country information supplied by DFAT relevant to the Appellant’s potential relocation to southern Iraq was to the effect that, without tribal or political affiliations, state protection was difficult to access.

How the need for practical assistance through ‘tribal ties’ in the Appellant’s instance might arise was evident. The evidence before the IAA established that the majority of the Al [Y] tribe were Shia but a minority were Sunni. His given name might mark him out as a Sunni. The risk of mistaken identity was not a merely theoretical possibility. The IAA had not rejected the Appellant’s account that in 2010 members of a Shia militia, the Mahdi Army, had accused him of being a Sunni after having seen his given name, Omar, on his identity documents. The IAA did not express doubt as to the credibility of that account, as he had given both in his statutory declaration and his interview with the delegate, or his assertion that he had avoided being killed only after he had been able to obtain assistance from his father to prove the contrary.
I accept the Appellant’s submission that, by premising its reasoning on a misapprehension of what he had stated in his interview with the delegate, the IAA engaged in a process of reasoning that was illogical, irrational and not based on findings of fact supported by logical grounds: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 (Gill) at [64] to [65], [71] to [72] and [82]. The primary judge erred in not so finding.
In Gill the plurality of the Full Court (Griffiths and Moshinsky JJ) accepted at [65] that where jurisdictional error is established in relation to a decision-maker’s fact finding it must also be demonstrated that the error is material to the decision actually made. However their Honours’ reasoning at [82] makes clear that what is required is not that the Court be satisfied that a different outcome would have been reached; it would be sufficient if that that possibility was realistically open:
82Having regard to the weighing exercise conducted by the Tribunal in these critical paragraphs of its reasons, it cannot be said that the weighing exercise would have produced the same outcome if the Tribunal had not taken into account its illogical and erroneous findings of fact relating to risottos, the crumbing of chicken schnitzels and the appellant’s identification of the most popular dishes. In other words, this is not a case where illogical findings of fact were not material to the Tribunal’s ultimate conclusions (see Wigney J’s helpful analysis in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [60] to [67], relating to inter alia adverse credibility findings which are based on a range of matters, only some of which are illogical or irrational).
For that reason, in my opinion, the primary judge was correct in his initial scepticism of the Minister’s submission that the statement in the second sentence of [32] played no part in the Authority's reasoning; if a factual error it was of no moment.
In my opinion, shorn of the jurisdictional error in relation to the IAA’s fact finding, it is quite impossible to conclude that no other decision was open to the Authority. I reject the Minister’s submission that the findings of the IAA at [36], [45] and [46] in which the Authority refers to the Appellant’s tribal ties, on a fair reading, were independent of the IAA’s mistaken finding earlier recorded at [32] that the Appellant had asserted that he had such ties.
I uphold Ground 1.
Notice of contention
For the same reasons I also reject the Minister’s notice of contention. The notice of contention does not posit that on the evidence before the IAA, absent the erroneous fact finding to the decision, the IAA necessarily would have reached the same decision. It simply asserts there were other relevant materials which the Authority was entitled to rely upon. Given I have found the Authority’s erroneous fact finding was material to its decision, having regard to the reasoning of the plurality in Gill, cited above, what the Minister puts by way of contention is insufficient as an alternative basis to affirm the primary judge’s decision.
Ground 2
Mr Mostafa submits that the Appellant was put on notice for the first time that it was asserted against him that although his father was currently living in Romania with the Appellant’s mother and brother, he would continue to have “familial or tribal connections in Nasiriyah that would benefit his relocation to southern Iraq” when he became aware of [183] of the delegate’s decision.
The Minister’s submissions do not identify anything to suggest the contrary. I accept Mr Mostafa’s submissions.
I reject as entirely implausible the Minister’s submission that the Appellant’s submissions to the IAA were open to be dismissed as not having responded in any meaningful way to the factual finding of the delegate.
The submissions made on behalf of the Appellant included those set out at [31] above.
It is self-evidently clear that those submissions were directly responsive to the delegate’s findings. They explicitly put in issue the logic of the delegate’s finding that the Appellant’s membership of a tribe and his father’s place of birth would provide him with an adequate degree of practical and effective protection in southern Iraq.
The Minister does not contend that the provisions of Part 7AA of the Migration Act permit the IAA to disregard a submission responsive to the delegate’s findings made consistently with the IAA’s Practice Direction. In any event, I would reject such a proposition; unless the right of a person to make submissions is been removed explicitly by the Parliament it is inherent that a decision-maker on review must have regard to any submission on fact and law as is responsive to the decision under review. Neither s 473DA nor s 473DB of the Migration Act removed CDH16’s right to make such submissions.
In my opinion the primary judge erred in his conclusion that it was “apparent that the Authority had regard to the submissions provided by the applicant’s migration agent”. To the contrary, I am satisfied that the absence of any mention of those submissions going beyond the fact of their receipt required the primary judge to infer that material submissions advanced on his behalf were given no substantive consideration.
Findings of fact made by an administrative decision maker and their conclusions as to merits are generally binding upon a reviewing court. That is a consequence of constitutional implications regarding the separations of power.
Yet the way a decision-maker sets out his or her findings of fact may reveal that he or she has misconceived his or her statutory function. As Gleeson CJ, McHugh, Gummow and Hayne JJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [69] (applied by the Full Court of the Federal Court of Australia in Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 (Marshall, North and Flick JJ) at [54]):
…The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration…
An omission may reveal that a decision maker on review has made an error of law amounting to jurisdictional error: Yusuf at [10]. Scrutiny enables the courts to supervise the work of a body such as the Authority and ensure it acts according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 at 388:
Hence, the importance the courts have placed on the absence from the written statement … of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal’s exercise of a power conferred on it by the Parliament. This transparency is essential … to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error.
In Yusuf their Honours also held at [69] that where a Tribunal has a duty to give reasons a reviewing court is entitled to infer “that any matter not mentioned … was not considered by the Tribunal to be material”.
The primary judge erred in failing to draw that inference in the present appeal. In the absence of any reasoning or findings responsive to those submissions his Honour’s conclusion that the IAA had considered them was not open to him. Given the materiality of the matters raised by those submissions to the Authority’s overall conclusion with respect to relocation, the absence of such findings is a matter of substance, not the form of the Authority’s decision record.
I reject the Minister’s submission that it had been open to the Authority to give no weight at all to those submissions, and not refer to them in any substantive way, because of their internal inconsistency.
That submission unfairly represents what the Appellant put by way of submission to the IAA. His submission expressly acknowledged at the commencement that his grandparents lived in Diyala. It was uncontentious that Diyala is approximately 100 km from Baghdad and was not part of southern Iraq. The Appellant’s later statement that he had no links other than to Baghdad was merely introductory to his substantive submission that he had no family or tribal links in southern Iraq he could call on as he had been previously able to do when he had fallen into the hands of Shia militia in Baghdad and they had mistaken him for a Sunni because of his name.
I uphold Ground 2.
Ground 3
In my opinion Ground 3 lacks merit.
Mr Ali Alkafaji sent “the revised [submissions] in relation to my client” to the Authority by email on 23 June 2016 (CB 551-556). The document he refers to was entitled “Submission in relation to [CDH16]”.
It is not contentious that the Authority concluded that five aspects of what Mr Alkafaji went beyond submissions. It rejected those aspects as “new information”.
It cannot be an error for the Authority to reject a proposition not advanced. Neither in terms, nor by necessary implication, did his migration agent request the Authority to have regard to “new information”.
The Authority’s Practice Direction provided the means for such a request to be made. No such request was made. In my opinion the Authority was not in error in treating the document submitted to it by the Appellant’s solicitor migration agent titled “Submission in relation to [CHD16]” as a submission and not as a request to adduce new information.
I would reject Ground 3.
Ground 4
The primary judge’s reasons in so far as they addressed the two grounds of review advanced by the then applicant were brief, but in both instances, in my opinion, they adequately identified and disclosed the rationale for his Honour’s decision.
I have concluded that his Honour erred. However, that is not a reason to conclude that the brevity of his Honour’s reasoning constitutes an independent basis for review. Had the legal basis underlying the primary judge’s dismissal of the judicial review proceeding before him been sound, the short reasons the primary judge gave would have been entirely adequate to explain his reasoning. Honour’s decision is not to be set aside for want of greater length.
I would reject Ground 4 as a separate and distinct reason for setting aside the decision at first instance.
CONCLUSION
Having regard to the Appellant’s success on Grounds 1 and 2, I would make the following orders:
(1)The appeal is allowed.
(2)The First Respondent pay the Appellant’s costs of the appeal as agreed or assessed.
(3)The orders made by the Federal Circuit Court of Australia on 22 May 2017 be set aside and in their place:
(a)Order absolute in the first instance for a writ of certiorari to remove into the Court for the purpose of its being quashed, the decision of the Immigration Assessment Authority dated 8 July 2016 to affirm the decision of a delegate of the First Respondent to refuse to grant a protection visa to the Applicant;
(b)Order absolute in the first instance for a writ directed to the Immigration Assessment Authority commanding the Authority to review according to law the decision of a delegate of the Minister to refuse to grant a protection visa to the Applicant;
(c)The First Respondent pay the Applicant’s costs.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.
Associate:
Dated: 14 May 2018

Appeal from:	CDH16 v Minister for Immigration & Anor [2017] FCCA 1063
File number:	NSD 934 of 2017
Judge:	KERR J
Date of judgment:	14 May 2018
Catchwords:	MIGRATION – appeal from the Federal Circuit Court of Australia – protection visa – where appellant is a Shia and claims to fear persecution on the basis of his having a name which would identify him as being a Sunni – whether primary judge erred in finding the appellant gave evidence he had tribal ties to a particular place in Iraq – whether primary judge erred in failing to find the IAA had not considered relevant submissions made by appellant – whether primary judge erred in failing to find the IAA ought to have considered new information – whether primary judge failed to give sufficient reasons in dismissing the application for review – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 5, 46A, 473DA, 473DB Migration Regulations 1994 (Cth)
Cases cited:	Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277
Date of hearing:	3 May 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	104
Counsel for the Appellant:	Mr B Mostafa
Solicitor for the Appellant:	Fragomen
Counsel for the First Respondent:	Mr BD Kaplan
Solicitor for the First Respondent:	DLA Piper
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance, save as to costs