CXS18 v Minister for Immigration

[2019] FCCA 2539

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXS18 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2539

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CC

Cases cited:

Singh v Minister for Home Affairs (2019) FCAFC 3

Minister for Immigration and Ethnic Affairs v Rajalingam [1999] FCA 719

First Applicant:

Second Applicant:

CXS18

DTF18

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 298 of 2018

Judgment of: Judge Vasta

Hearing date: 24 July 2019

Date of Last Submission: 24 July 2019

Delivered at: Perth

Delivered on: 25 July 2019

REPRESENTATION

Counsel for the Applicant: Mr K. Chong

Solicitors for the Applicant: Rothstein Lawyers

Counsel for the Respondent: Mr P. Knowles

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. That the Applications filed 5 June 2018 and Amended on 19 June 2019 are dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 298 of 2018

CXS18

First Applicant

DTF18

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 24 May 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant the Applicant, CSX18, a protection visa.  On 5 June 2018 the Applicant has filed this application.  On 19 June 2019 the son of the Applicant, DTF18, joined this application.  His contention is that he is a member of the family unit of the Applicant CSX18 and so, therefore, his claims rise or fall on that of his father.

2. Those claims, in summary, are this.  The Applicant, as a single man, was part of a family group that fled from Najaf, Iraq to Qom, Iran in 1993.  This was done to escape the regime of Saddam Hussein.  Although the family were living in Iran illegally, the Applicant was able to complete the final year of intermediate school and was able to study computing for four years in Qom.  He then worked for an IT company and established his own company providing IT services in Iran.

3. His parents and sibling returned to Iraq in 2003 after the fall of the regime of Saddam Hussein.  The Applicant, who was now married, and his wife returned to Najaf in Iraq in January 2004 after the birth of their first child.  The brother of the Applicant obtained employment in the Iraq army and, with his brother’s assistance, in 2004 the Applicant claims to have obtained a sensitive role in the Iraq Army reporting directly to the multinational forces in the Iraq US forces in Iraq. He claims that his role was to approve, reject or provide intelligence on potential Iraqi Army recruits.

4. He claims that he was careful to keep his work secret.  However, his father in Najaf received threats over the period 2006 to 2009, stating that the family would be killed unless the Applicant and his brother ceased working with the Iraqi Army and working with the Americans.  Notwithstanding this, the Applicant said that he and his brother continued working for the Iraqi Army and, in 2010, his father was murdered because of the work that the Applicant did, it is claimed.

5. The Applicant said that he felt his family were not safe, so his wife and two eldest children fled Iraq arriving in Australia in December 2011.  In January 2012 the Applicant’s house in Hillah, Hillah being partway between Baghdad and Najaf and being a place where he used to meet his wife and children when he was on leave, was bombed while it was unoccupied.  The Applicant claims that his relatives alerted him to a letter published on the internet by the Islamic Army in Iraq.  The Islamic Army is a precursor of ISIS.  That letter on the internet allegedly claimed responsibility for the bombing of the house of the Applicant. 

6. In June 2012, the Applicant departed Iraq.  He deserted his position in the Iraqi Army because he said it takes too long to resign.  He said that, if he returns to Iraq, he feels he will be persecuted because of his membership of the particular social groups of:

   ·    being a former member of the ISF;

   ·    being a former member of the ISF who had been working with the multinational forces;  and

   ·    an ISF deserter.

7. The IAA went through those claims very thoroughly.  Without wanting to go through the whole of the judgment, it would seem, in the end, that the IAA did not accept much of what the Applicant had claimed regarding his employment and the danger that he faced.  The IAA also had trouble with the chronology that had been given by the Applicant who, at one stage had claimed that the house in Hillah was bombed and because of that, his wife and children left Iraq; which means that the bombing occurred in 2010, and on other occasions claiming the bombing occurred in 2012, which was after the wife and children had left Iraq.

8. The IAA considered that the Applicant had exaggerated his role in the army.  The IAA said this at paragraph 40:

   On the totality of the information before me, I find the applicant’s claims to have worked directly for the MNF-I/USF-I, rather than reporting to the ISF, and to have been responsible for deciding who would, and would not be recruited, and to have provided intelligence on potential Army recruits to be implausible and I do not accept these claims.  His description of his role checking potential recruits against a database seems inconsistent with country information indicating that records in Iraq are generally kept manually.  His own evidence that he made a recommendation about the suitability of potential recruits to the US Forces suggests he did not have any decisive role in the recruitment process.  That he would have had the power to make such decisions also seems inconsistent with country information that suggests that the Americans were aware of the challenges involved in screening of recruits and Coalition Forces sought input from local tribal leaders, political leaders, and other elites to nominate volunteers to be considered for recruitment as soldiers.  The applicant’s description of who was excluded from recruitment – he indicates it was a wide ranging group including those who had a criminal history, Baath Party supporters or former Baath regime workers and those with violent backgrounds – is also at odds with country information.  While country information suggests that top Baath Party members, intelligence personnel and Special Republican Guard troops were barred from joining the new Army, some lower level former soldiers from Saddam’s Army were able to join the new Army as, at a societal level in Iraq it is broadly agreed that what applies to the Baath Party should not apply to Baathists as individuals given the pressures that forced millions of Iraqis to join the Party… 

9. Significantly, the IAA then also said:

   … It also seems fanciful that an individual employed in a relatively junior administrative position in the Army, who had only returned to Iraq in 2004, following over a decade of absence from the country, would be considered a useful and reliable source of intelligence by the Americans.

10. The IAA then said:

    I find that any involvement the applicant had in the Iraqi Army recruitment process was highly likely to have involved him applying policies designed and overseen by others.  Additionally, apart from his assertion, there is no other evidence that the applicant worked directly to the MNF-I/USF-I. 

11. The IAA, having come to the conclusion that the Applicant had exaggerated his role and his role being that as I have just noted in paragraph 40, then looked at the religion of the Applicant and the security situation in Najaf.  The IAA also looked at the Applicant being a failed asylum seeker and a returnee from a western country.

12. In the end, the IAA, at paragraph 53, said:

    On the information before me I am not satisfied there is a real chance that the applicant will suffer harm as an asylum seeker or a returnee from a Western country now or in the reasonably foreseeable future.  I am also not satisfied there is a real chance that the applicant will suffer harm now or in the reasonably foreseeable future returning to his home in Najaf.

13. Therefore, the Applicant did not meet the requirements of the definition of refugee.

14. The IAA then looked at the complementary protection criteria and, after analysing that aspect, said, at paragraph 60, that:

    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant would suffer significant harm. The applicant does not meet s.36(2)(aa).

15. The IAA looked at the situation of DTF18.  DTF18 is a child that was born to the Applicant and his wife after their re-uniting in Australia.  Because he was a member of the family unit, his claims also did not fulfil the criteria.

16. There are three grounds to this application.  The first ground is:

    The decision of the Immigration Assessment Authority was vitiated by a constructive failure to exercise jurisdiction, being the ‘review’ required under subsection 473CC(1) of the Migration Act 1958 (Cth), in that the Authority did not give proper, genuine and realistic consideration to a substantial, clearly-articulated argument based upon material provided to the delegate.

17. To understand this argument, one has to go to the submission that the Applicant’s representative made to the delegate, which ended up being a claim that the IAA had to look at and engage with.  That is found at page 225 of the Court Book in a letter that is dated 3 October 2017.  On the front page, there is a summary of claim.  Relevantly, the claim, at paragraph 2 of that summary, is this:

    CXS18 has well-founded fear of persecution in Iraq, in the form of a threat to his life and liberty, and is of real risk of suffering significant physical harassment or ill treatment, on account of his political opinion or imputed political opinion and membership of the following social groups: 

    (i) ‘Former member of the Iraqi Security Forces (ISF)’

    (ii) ‘Former member of the ISF working with the Multi-National Forces in Iraq/US Forces in Iraq (MNF-I/USF-I)’; and/or

    (iii) ‘ISF deserter’.

18. Those matters were particularised further on in the submission.  At paragraph 45 of the submission, the Applicant has said:

    Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion.

19. At the end of that is a footnote numbered 25.  When one goes to the bottom of the page, that footnote referenced the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq.

20. The argument is that the IAA has not engaged in an active intellectual process or given proper, genuine and realistic consideration to a substantial, clearly articulated argument relying on established facts. 

21. The argument is that the Applicant claimed that, because he was a former member of the ISF, working with the multi-national forces in Iraq or the US forces in Iraq, he has a well-founded fear of persecution in the form of a threat to his life and liberty.  He claims that he had evidence, in the form of country information that supported his claim.  He claims that the IAA simply did not engage in that argument.

22. Both the Applicant and the Minister seem to agree upon the principles involved.  They are neatly summarised in paragraphs 34 to 37 of Singh v Minister for Home Affairs (2019) FCAFC 3. In that authority, at paragraph 34, the Court says this:

    The principle is directed to the question whether the jurisdiction reposed in the decision-maker is, in fact, exercised and exercised in a way which is authorised by the statute. If the decision-maker does not actively consider a mandatory consideration, the decision-maker has not exercised the jurisdiction the statute contemplated the decision-maker would exercise.  Likewise, a tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if, for example, it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:

    ·a substantial, clearly articulated argument relying upon established facts.  See Dranichnikov v Minister for Immigration and Multicultural Affairs;

    ·a claim raised by the evidence and contentions before it which, if resolved in one way, would or could be dispositive of the review.  See NABE v Minister for Immigration and Multicultural and Indigenous Affairs;

    ·            a matter that is an essential integer to an applicant’s claim or that would be dispositive of the review.  See ETA067 v The Republic of Nauru.

23. Paragraph 35:

    However, it is important to recognise that the ultimate concern is with the identification of jurisdictional error: the tribunal not performing the function entrusted to it or not performing it in an authorised way.  The Full Court in Carrascalao, at paragraph 32, cautioned against allowing this ground for judicial review to slide into merits review.

24. It then quoted paragraph 32:

    The Court is mindful of the necessity to avoid straying into a review of the merits of the Minister’s decisions.  (See the frequently cited statements of Brennan J in Attorney-General (New South Wales) v Quin.)  The Court acknowledges that an expression such as “proper, genuine and realistic consideration” can, if taken out of context, encourage a slide into an impermissible merits review.  (See the observation of the High Court in Minister for Immigration and Citizenship v SZJSS.)

25. Paragraph 36:

    The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made.  However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

26. Paragraph 37:

    In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:  (1) first, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed;  (2) secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:  (a) the reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error;  (b) it is necessary to read the reasons in light of the whole case as it was before the tribunal, which might have involved more issues than are raised, and more evidence than is, before the Courts on judicial review and subsequent appeal.  The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the tribunal;  and (c) a conclusion that the decision-maker has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof.

27. It is instructive, then, to look at the UNHCR report that was footnoted.  This is contained in the affidavit of Sophie Manera sworn on 20 June 2019.  That affidavit annexes the report.  At page 14 of the report, it is headed Risk Profiles.  The subheading is Individuals Associated with or Perceived to be Supporting the Iraqi Authorities and the Former Multinational Forces/US Forces.  It then says:

    Specific groups that may be associated with or perceived to be supporting the Iraqi authorities include the following:  (a) government officials and employees;  (b) former members of the Iraqi Security Forces (ISF);  (c) Shawa members, traditional tribal, religious and community members;  (d) members of political parties;  (e) individuals affiliated with the US forces, foreign governments, NGOs or international companies.

28. When one reads the section about former members of the Iraqi security forces, there does not seem to be any actual reference to former members of the ISF.  Rather, it talks of current members of the ISF.  In many ways the heading is somewhat misleading but it is the only part of the report that actually talks about persons who were in the ISF notwithstanding that it does not talk about what has happened to them after they have left the ISF.

29. When one goes to the heading Individuals Affiliated with the USF, foreign governments, NGOs or international companies, what is said here is:

    Civilians formerly employed or otherwise affiliated with the former MNF/USF or foreign governments, NGOs or international companies as well as their families are at risk of being targeted by non-state actors for their imputed political opinion.

30. Those words are exactly what is written in paragraph 45 of the submissions that the applicant gave to the delegate.  However, what is written after that is this:

    Since 2003 both Sunni and Shiite armed groups are known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, contractors and others affiliated with multinational forces/US forces, foreign  governments, international companies or organisations reportedly to deter others from working for them.

31. If one goes back to the claim that the applicant made in the summary, it was predicated upon him being a former member of the ISF, and a former member of the ISF working with the multinational forces.  The report itself that is footnoted does not cover the persons in his position; that is, even though there is a heading “Former Members of the ISF”, it simply talks about what is happening to current members of the ISF.

32. The category headed ”Individuals Affiliated…” does not cover his position of being a former member of the ISF working with the multinational forces because that category, when one looks at it, is covering persons who were civilians who were working with the multinational forces and gives examples of that being embassy officials, interpreters and the like.

33. The applicant was not a civilian who had some contact with the multinational forces.  He was a member of the ISF.  At paragraph 46 of the reasons the IAA have said this:

    I have also considered whether the applicant being a former member of the ISF more generally gives rise to a real chance of harm.  I accept the country information supports there is a real chance that current members of the ISF may suffer serious harm although I note it is reported that it is senior ISF members of Sunni background who are mostly targeted individually and that the risk increases significantly in ISIS-controlled areas which Najaf is not. 

    However, apart from the applicant and his representative’s assertions, there is no information before me to suggest that former members of the ISF are targeted by the Islamic Army in Iraq, ISIL, or any other Sunni or Shia militias years after they have completed their military service.  Given the large volume of media and human rights reporting on Iraq, I consider there would be country information available documenting such a trend if it were occurring.  While the heading in the 2012 UNHCR Eligibility Guidelines refers to “former members of the Iraqi security forces” the discussion beneath that heading concerns attacks on current on-duty and off-duty members of the ISF.

    I also note that the applicant’s brother who was also a former member of the ISF has continued to reside in Najaf for the six or so years the applicant has been absent from Iraq without being targeted. 

    Given these circumstances and, as it is now many years since the applicant ceased that employment, I am satisfied that the chance is remote that if he returns to Iraq the applicant will suffer harm because he is a former member of the ISF now or in the reasonably foreseeable future.

1. The applicant submits that the information under the heading Former Members of the ISF and the finding, as I have noted, that it does not talk about actually what happens to former members of the ISF means that the IAA was duty-bound to go to paragraph (e) and talk about the information in paragraph (e) about individuals affiliated because this is a situation that would fit the applicant’s situation far more than paragraph (b) and it is the substance of the argument that had been made in the submissions that had been provided to the delegate.

2. It seems to me, though, that the IAA has actually engaged with the argument that the applicant has put forward because the IAA has looked at what the applicant’s situation was with the ISF and has made a specific finding at the end of paragraph 40 to which I have already referred.  The argument that the IAA should have looked at what was in paragraph (e), in my view, cannot be sustained because the applicant could never have fitted into that category because he was not a civilian who had been working with the forces or NGOs or other entities.

3. He was, at all times when performing duties with the ISF, a person who, according to the IAA, was applying policies designed and overseen by others. When one looks the principles that were contained in paragraphs 34 to 37 of Singh, it was unnecessary for the IAA to look at every little piece of evidence that the applicant had claimed supported his case when, clearly, on the evidence of the applicant the particular paragraph in that report could not have suited his particular circumstances.

4. In my view, that means that there has been no jurisdictional error established for this ground and therefore this ground fails. 

5. Ground 2 of the application is that the decision of the Authority was vitiated by a constructive failure to exercise jurisdiction, being the review required under subsection 473CC(2)(a) of the Migration Act 1958 (Cth) (Migration Act), or made a material finding of fact for which there was no intelligible foundation in that the Authority adopted matters of impression expressed by the delegate which the Authority could not have independently formed.

6. Again, there is no real dispute that the principles relating to this ground are that the IAA must reach its own state of satisfaction as to whether or not the criteria for refugee or complementary protection has been satisfied.  The Authority is engaged in a de novo consideration of the merits of the decision that has been referred to it.  In the second sentence of paragraph 39, the Authority says this:

   When asked by the delegate about the part of the army he worked in, the applicant seemed to have difficulty naming his unit without referring to the supporting documents he provided. 

7. The applicant points out that the IAA had an audio recording of the interview with the delegate but there was no video recording at all.  Without actually seeing what had occurred during the interview with the delegate, the applicant rhetorically asked “how does the IAA know that the applicant seemed to have difficulty naming his unit without referring to the supporting documents”.  At Court Book 243 the decision of the delegate notes this:

   At the interview the applicant was asked to describe his role in detail.  The applicant stated that he worked for G1.  When pressed on the precise name of his division as per his written application, the applicant was unable to answer. When the name was put to him as per his certificates, the applicant stated he did not know what 30 Iraq Brigade, Eighth Division meant.  The applicant maintained that he worked for G1 and stated that he provided administrative support.  He stated that his position required him to work with sensitive information, where he would collect the details of people in the Iraqi army and the information was provided to the Americans.  The applicant claimed he would check the suitability of new recruits to the army.

8. Obviously, the IAA cannot rely on opinion that are formed by others.  If the IAA had simply parroted the opinion of the delegate, then there would be a jurisdictional error.  The applicant suggests that what the IAA has done is  read this part of the delegate’s decision, especially these two sentences:

   When pressed on the precise name of his division, as per his written application, the applicant was unable to answer.  When the name was put to him as per his certificates, the applicant stated he did not know what 30 of the Iraq Brigade, Eighth Division meant.

9. The applicant suggests that the IAA has simply reworked what the delegate has said into the statement that appears in the second sentence of paragraph 39.  However, when I look at this paragraph, it is clear that the delegate did not talk about the applicant having difficulty; he simply said the applicant was unable to answer. 

10. I have been helpfully provided a transcript of the interview with the delegate.  This appears in the affidavit of Ken Xing Chong, affirmed on 19 June 2019, the transcript being annexed to it.

11. If one goes to pages 36 and 37, one can read the transcript.  It starts like this on page 36:

    The Delegate:  So who were you collecting the information about?  Which people were you collecting?  Um, so, yeah, you said that it’s a database.

    The Applicant:   Database, yes.  So if you’re coming to army, I need your name, so same interview now, your name, what history you have that - - -

    The Delegate:  So it’s for the army people.  Is that - - -

    The Applicant:   Yeah.  Yeah.

    The Delegate:  Is it the American army?

    The Applicant:  No, Iraqi.  But, because I speak, like,  Arabic, I understand what any of the – you need work with the American.  Okay.  Must you do in this one, this one, this one, this one, this one.  If everything is correct, we have a lot of the question that the system, if everything is right.  I tell for the American.  American, he say, “Okay.  We apply this one.”  “Adele, what do you think?  I say, “Very good.”  He apply for any person.  I work with one American.  His name Sergeant Budget, which is he – very great.  I remember he very great person.  This time he tell how the dentist they in Iraq.  “Is Iraq very not safe for you?”  I say, “No.  I don’t care.  I never care for anything.”  But the bigger problem when he left – I found the bigger problem – bigger problem, my other family, like, my – near to me, big, big, big, big, big, a huge …..

    The Delegate:  So does your family have any – other than your brother, where – does your family have any other association?  Were they in the army?  Anyone else?

    The Applicant:  No, just me and my brother.

    The Delegate:   Just you and your brother?

    The Applicant:   Yes.

    The Delegate:   Okay.  So you said that your father was doing something to do with – yeah?

    The Applicant:   He’s an engineer who worked for the mill factory, big, big factory in Najaf. He also worked in ..... every time he changed it, every time – because he – big Minister – he was high ranking officer.

    The Delegate:  An officer in what?

    The Applicant:  For flour.  Flour.  He was working for the main mill company.  He has been dismissed from his work during the Saddam’s regime and then he has been returned back to his position.

    The Delegate:  Okay.  So you said the division that you worked for was called G1.  What was the particular name?  Because in your application, you provided more details about the names of that, so can you tell me more about the name of that.

    The Applicant: I have here the certificate.  Do you have it? 

    The Delegate:  So this one?  You’ve got teen? 

    Yes. 

    So you’ve got here the 30^th Iraqi Brigade, 8^th Iraqi Division, G1 –

    and then there is an indistinct.

    Do you know what that means? 

    The Applicant:  No. 

    The Delegate:  No?

    The Applicant:  No.  This one is a practice for me.  He give me four months offsite, like, near to Jordan.  When I’m ready, he bring it back.

12. I have read that to put it all in context, but the real aspect here is this question by the delegate:

    Okay.  So you said the division that you worked for was called G1.  What was the particular name?

    What? 

    Because in your application, you provided more details about the names of that, so can you tell me more about the name of that?

    And then the applicant says:

    I have here the certificate.  You have it.

13. In reading the transcript, the applicant points out that there is nothing in the transcript which would in any way suggest that there was any difficulty as the IAA had talked about.  But just in exactly the same way, there is nothing in the transcript that would lend me to be able to corroborate this this statement by the delegate:

    When pressed on the precise name of his division as per his written application, the applicant was unable to answer.  When the name was put to him as per his certificates, the applicant stated he did not know what 30^th Iraqi Brigade, 8^th Division meant.

14. It seems to me that the transcript is not a full answer, because the transcript does not seem to suggest what the delegate has said either.  But both the delegate and the IAA have said in their respective reasons that there was at the very least some sort of equivocation by the applicant when asked what would seem to be a fairly straightforward question for someone who had been in the position that the applicant claimed to have been in. 

15. Neither counsel had listened to the audio.  I have not listened to the audio, and I have not been asked to listen to the audio.  I cannot say whether there are pauses, or whether there are other aspects of the hearing such as shuffling the papers or the like that can be heard on the audio.  But it does seem to me that if one listens to the audio, it may be that one could discern what it is that causes an inability to answer the question without reference to the document simply by what has been said and the context of what it is that can be heard. 

16. This may be speculation by me, but it seems to me that to take the view of the applicant is also quite speculative.  Even though the affidavit of Mr Chong and then a subsequent affidavit from the Minister from Ms Ellis simply say that they have listened to the tape and they have come up with this transcript, neither one of them talks of what it is that they heard at the time that this particular exchange took place. 

17. The IAA, one must assume, has listened to the audio.  The IAA have made a conclusion that – using the words of the second sentence in paragraph 39, when asked by the delegate about the part of the army he worked in, the applicant seemed to have difficulty naming his unit without referring to the supporting documents he had provided.  That conclusion seems to me could not have been made simply by reading the reasons of the delegate.  It is a conclusion that is made by the IAA rather than anyone else. 

18. There has not been shown to me that the conclusion reached by the IAA could not have been gleaned simply by listening to the audio.  It is obvious to me that there is something else that has happened that is not reflective in the transcript for the delegate to have written what he has, and therefore also for what the IAA has written.  They are two different conclusions, though obviously there is quite a deal of similarity in the conclusion, but it seems to me that such could easily have occurred by the IAA listening to the audio and the delegate actually being present to justify the conclusions that have been made.  In these circumstances, I cannot see that any jurisdictional error has been made.  Therefore, ground 2 also fails. 

19. Ground 3 is that the decision of the Authority was vitiated by a constructive failure to exercise jurisdiction, being the review required under subsection 473CC(1) of the Migration Act, misapplied or misconstrued the assessment of future risk required under section 36, subsection (2).

20. The submissions for the applicant are based on a principle that both the applicant and the Minister agree upon.  That is, that in fulfilling the speculative task required under subsection 36(2)(a) and (aa), where the Authority finds that it is only slightly more probable than not that an alleged event has not occurred, the Authority must take into account the possibility that it did occur.  On the other hand, where there is no real doubt, there is no need to consider the possibility. These principles were decided in Minister for Immigration and Ethnic Affairs v Rajalingam [1999] FCA 719.

21. This test has been referred to as the “what if I am wrong” test.  The applicant submitted that the Authority’s findings as to the precise role of the first applicant in the Iraqi Army would be pregnant with doubt.  The Authority (1) noted the consistency in the applicant’s claim as to recruit role in the Iraqi Army,  (2) thought that they were undermined by an alleged difficulty in naming his unit without referring to the supporting documents he had provided, (3) attached some weight, but not much, to the Iraqi National Guard basic training Court certificate, (4) attached no weight to the Team Renegades certificate, (5) but was nevertheless willing to accept that between 2004 and 2012, the first applicant served in the Iraqi Army in a low level administrative role associated with recruitment, (6) and was also willing to accept the role involved some contact with the multinational force/US force, (7) but that he had exaggerated his role in the Iraqi Army.

22. The applicant submitted that the Authority’s findings were non-committal.  It was for this reason that the applicant says that the Authority purported to address a compromise position, that is, risk of harm to the first applicant, as the former member of the Iraqi Army albeit in a low level administrative role.  The applicant submitted that in being willing to accept some claims, the Authority in terms neither accepted, nor rejected, them.  Other claims were said to have been exaggerated.  This, the applicant contends, is the language of compromise, therefore, it implies doubt and where there is that sort of level of doubt, the Authority should have applied the “what if I am wrong” test.

23. I have already read into the record the last sentence of paragraph 39, and the whole of paragraph 40.  When one reads that, it cannot be said that what the IAA has concluded were findings of a non-committal nature.  The IAA has looked at all of the evidence and explains why they have come to the conclusion that they have.  I do not consider that the IAA addressed a compromise position when they gave their reasons at paragraph 46.  The findings of the IAA made were not findings that were findings that just tipped the scale.  They were findings of certainty and cannot be said to be ones that were pregnant with doubt.

24. When one looks at what is said at the last part of paragraph 40, there is no room to say that this was a finding that was somewhat non-committal.  In the case that applies here, there is no obligation on the IAA to undertake the “what if I am wrong” test.  For that reason, ground 3 fails.

25. I, therefore, dismiss application.

26. I order that the Applicant pay the costs, including the reserve costs of the Minister, fixed in the sum of $7,467.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  10 September 2019