Deq17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 458
•9 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DEQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 458
File number(s): SYG 2238 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 9 April 2021 Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a protection visa – applicant returning to Iraq several times following visa grant – whether the applicant was denied procedural fairness, whether the Tribunal based finding on incorrect information, whether the Tribunal misapplied country information or erred in failing to get and consider the decision leading to the grant of the visa considered – jurisdictional error established. Legislation: Migration Act 1958 (Cth), ss 101, 109, 368, 424A, 425
Migration Regulations 1994 (Cth)
Cases cited: AOJ18 v Minister for Home Affairs [2018] FCAFC 220
BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1094
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1465
EKN17 v Minister and Border Protection [2019] FCA 1135
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Singh v Minster for Home Affairs [2019] FCAFC 3
STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 556
SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) (2013) 136 ALD 641
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568
Number of paragraphs: 126 Date of hearing: 10 March 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitors for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 2238 of 2017 BETWEEN: DEQ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
9 APRIL 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 14 June 2017 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine according to law the review before it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel the applicant’s protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 10 or 11 September 2010[1] the applicant arrived in Australian waters (at Christmas Island) by boat as an unauthorised maritime arrival.
[1] Court Book (CB) 11, 56.7
On 22 September 2010 the applicant was interviewed by an officer of the Minister’s Department.[2]
[2] CB 56.7
On 17 October 2010[3] the applicant made a request for Refugee Status Assessment (RSA).[4] The request was accompanied by a statutory declaration of the applicant dated 17 October 2010 which set out his claims.[5]
[3] CB 53
[4] CB 7-52
[5] CB 33-43
On 19 October 2010 the applicant was interviewed in relation to the RSA.[6]
[6] CB 56.8
On 16 March 2011 a delegate found that the applicant did not meet the definition of a refugee.[7] That delegate did not believe many of the applicant’s claims. For example, the delegate was “not satisfied that the claimant is a credible or truthful witness with regard to his claims”,[8] “discount[ed] all claims associated with the claimant’s military service”,[9] did not accept the applicant’s claim that he was kidnapped other than for a criminal intent,[10] and found that “there is no evidence to indicate that the claimant has suffered any discrimination or mistreatment as a Bidoon in Iraq which would give rise to a well-founded fear of persecution”.[11]
[7] CB 55-72
[8] CB 68.5
[9] CB 69.1
[10] CB 71.2
[11] CB 71.9
It appears that the applicant “requested independent merits review of the RSA”, which was an option referred to in the letter from the Minister’s Department to the applicant enclosing the RSA determination.[12] For example, the applicant referred in his subsequent protection visa application[13] to “my application for independent merits review and my independent merits review hearing”, and the Tribunal at [49] referred to the consideration of the applicant’s matter by the Independent Protection Assessment Office (IPAO). However, there are no documents in the court book, and therefore there must have been no documents before the Tribunal, in relation to the independent merits review (IMR), including the IMR decision.
[12] CB 53
[13] CB 91.5
It appears that by 5 January 2012 the applicant had obtained a favourable outcome from the IMR. Thus, on 5 January 2012 the Minister’s Department wrote to the applicant stating:[14]
You have previously been notified that in respect to your request for a Refugee Status Assessment you have been assessed to be a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The Minister for Immigration and Citizenship has now exercised his power under s 46A(2) of the Act to allow you to lodge a protection visa application.
Your migration agent has been asked to prepare your Protection visa application. The department will process this application and notify you of the outcome as quickly as possible.
[14] CB 74
On 6 January 2012 the applicant signed the protection visa application.[15]
[15] CB 75-103
On 11 January 2012 the Minister’s Department sent a letter to the applicant titled “Notification of grant of Protection (Class XA) Subclass 866 visa” which stated in part:[16]
I am pleased to advise that a decision has been made to grant you a Subclass 866 (Protection visa) and this decision comes into effect on 11/01/2012.
[16] CB 104
Between April 2012 and February 2016 the applicant returned to Iraq four or five times.[17]
[17] CB 124.9
On 20 June 2016 an officer of the Minister’s Department issued the applicant with a notice of intention to consider cancellation of his protection visa (NOICC).[18] The NOICC set out a summary of the claims the applicant had advanced in his protection visa application.[19] The NOICC stated that the applicant had returned to Iraq on five separate occasions between 2012 and 2016 for a total period of in excess of 23 months.[20] The NOICC stated:[21]
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. You claimed that you are of adverse interest to the Iraqi authorities and that you would be punished and tortured for disobeying military orders and deserting the army if you returned to Iraq. You also stated that a militia group would find you and kill you because of your religion. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations.
Since grant of your protection visa in 2012 you have returned to Iraq on five separate occasions and you had contact with the Iraq authorities in your identity, obtained a new identity card and remained in Iraq for a total period of approximately two years. This conduct strongly suggests that you are not of adverse interest to the Iraqi authorities and the militia as claimed in your Protection Visa application. It appears that you did not hold the claimed adverse profile with the Iraqi authorities as stated by you in your protection visa application.
[18] CB 122
[19] CB 123
[20] CB 124
[21] at CB 125
The NOICC identified the applicant’s protection visa the subject of consideration for cancellation because the applicant appeared to have breached s 101(b) of the Migration Act 1958 (Cth) (Migration Act) in having provided incorrect answers in his protection visa application. The incorrect answers put to the applicant in his NOICC were those referring to his protection claims as advanced to the RSA.[22]
[22] CB 125; see for instance at CB 91, Q 42
The applicant responded to the NOICC on 6 July 2016.[23]
[23] CB 137
On 11 July 2016 the applicant’s agent sent the Minister’s Department a submission and some documents.[24]
[24] CB 137-147
On 15 August 2016 the Minister’s Department sent the applicant a letter notifying him of the commencement of an International Treaties Obligations Assessment (ITOA) and inviting a response from him.[25]
[25] CB 156-160
On 29 August 2016 the applicant’s agent emailed to the Minister’s Department a submission in response to the ITOA.[26]
[26] CB 161-167
On 9 September 2016 the delegate undertaking the ITOA concluded that he was not satisfied that Australia had refoulement obligations to the applicant under the Refugees Convention.[27] (ITOA Decision)
[27] CB 181-194
On 9 September 2016 the Minister’s Department sent the applicant a letter stating:[28]
Your ITOA was finalized on 9 September 2016 with a finding that non-refoulement obligations are not engaged in your case.
[28] CB 179
The wording of the letter suggests that the ITOA Decision was not included with the letter.
On 28 October 2016 the delegate made a decision to cancel the applicant’s protection visa.[29]
[29] CB 199-217
On 21 November 2016 the applicant applied to the Tribunal for merits review of the cancellation decision.[30]
[30] CB 221-224
On 8 February 2017 the applicant’s agent provided a pre-hearing submission to the Tribunal.[31]
[31] CB 239-244
On 15 February 2017 the applicant attended a hearing before the Tribunal.[32]
[32] CB 230, 252
On 28 February 2017 the applicant’s agent provided to the Tribunal:[33]
(a)a document titled “Ruling Extract – Warrant of Commitment” dated 5 January 2011;
(b)a document titled “Arrest and Investigation Warrant” dated 10 February 2011; and
(c)a written submission.
[33] CB 260-267
On 14 June 2017 the Tribunal issued a decision affirming the delegate’s decision to cancel the applicant’s protection visa.[34]
[34] CB 271-293
THE CURRENT PROCEEDINGS
This matter has a long procedural history. The proceedings began with a show cause application filed on 17 July 2017. It was initially docketed to a former judge of this Court but on 14 March 2019 the matter was transferred to me for hearing. The matter was scheduled to be heard on 16 October 2020 but that hearing was vacated and the matter was heard on 10 March 2021.
At the trial the applicant, by leave, relied upon a further amended application filed on 9 February 2021. That application as amended contains five grounds:
1. The applicant provided to the Administrative Appeals Tribunal ("the Tribunal") documents titled "Ruling extract - Warrant of commitment" and "Arrest and investigation warrant". The Tribunal implicitly found that the two documents were not genuine. The Tribunal did not put its concern of fabrication to the applicant and give him an opportunity to comment. This involved a denial of procedural fairness, which was a jurisdictional error.
2. Reg 2.41(c) of the Migration Regulations 1994 required the Tribunal to consider, in deciding whether to cancel the applicant's visa, whether the decision to grant the applicant the visa in 2011 or 2012 was "based wholly or partly on incorrect information". The Tribunal at [75] found that "the claims which [the applicant] made in support of his application for a protection visa were the basis for the decision to grant him a protection visa and he would not have been granted a visa if it had been known that those claims were not in fact true". The relevant decision by which the applicant was assessed to be a person to whom Australia had protection obligations was a decision of an Independent Merits Reviewer (“IMR”). The IMR decision was not before the Tribunal. In the circumstances, the Tribunal's finding at [75] involved jurisdictional error for one or more of the following reasons:
a) The Tribunal failed to take steps to obtain a copy of the IMR decision. This was an obvious enquiry about a critical fact the existence of which is easily ascertained as explained in Minister v SZIAI (2009) 259 ALR 429.
b) The Tribunal misunderstood the evidence before it. Specifically, the Tribunal believed that the decision to grant the applicant a protection visa was, in fact, based on the incorrect information, when, in truth, the information before the Tribunal did not indicate whether or not the decision to grant the applicant a protection visa was based on the incorrect information.
c) The Tribunal's finding at [75] involved speculation which was irrational or illogical.
3.The Tribunal at [83]-[89], in deciding whether to exercise its discretion to cancel the applicant's visa, considered whether the cancellation would lead to the applicant's removal from Australia in breach of Australia's non-refoulement obligations under the Refugees Convention. The Tribunal had before it a DFAT country information report and two UK Home Office country information reports which included conflicting assessments of the risk of harm to Sunnis returning to Shia dominated provinces in southern Iraq. The Tribunal at [88] decided to give no weight to the DFAT report assessment because "that report dates from 13 February 2015 and I prefer the more recent information about the improved security situation in Basra province in particular". The Tribunal fell into jurisdictional error in giving no weight to the DFAT report for one of the following reasons:
a) The Tribunal decided at [88] to give no weight to DFAT’s assessment for a reason which was illogical or irrational.
b) The Tribunal failed to give proper and genuine consideration to paragraph 8.2.2 of the UK Home Office report. If the Tribunal had given proper and genuine consideration to paragraph 8.2.2. of the UK Home Office report, it would have realised the dated nature of the information in paragraph 8.2.2, and would not have given no weight to DFAT's assessment.
4. The Tribunal ought to have taken steps to obtain a copy of the decision of the Independent Merits Reviewer dated 25 November 2011. Its failure to do so involved a failure to make an obvious inquiry about a critical fact within the principle stated in Minister v SZIAI (2009) 259 ALR 429.
5. The Tribunal found at [68] that the applicant's "decision to return to Iraq not once but on a number of occasions logically supports the conclusion that his claim that he feared being arrested as an army deserter was not true" and that it did "not accept that if those claims were true ... he would have returned to Iraq through the airport in Basra as he has said he did". The Tribunal fell into jurisdictional error in making these findings. First, the Tribunal failed to give proper and genuine consideration to the applicant’s evidence (most of which the Tribunal accepted) that on three of the five occasions he attempted to visit his family in Iraq, he entered Iraq by alternative routes (and on one occasion remained in a different part of Iraq) at great inconvenience to the applicant and his family. Second, the Tribunal's finding was illogical and irrational in a manner which involved jurisdictional error.
In addition to the court book filed on 9 November 2017, I have before me as evidence two affidavits by the applicant’s solicitor made on 9 February 2021 and 8 September 2020. The earlier affidavit annexes part of a Department of Foreign Affairs and Trade (DFAT) country report on Iraq dated 13 February 2015 (DFAT Report) and extracts from UK Home Office reports in 2016. The more recent affidavit annexes email correspondence between the representatives of the parties and a copy of an IMR decision concerning the applicant dated 25 November 2011.
The parties filed extensive pre-hearing submissions and made helpful oral submissions through their counsel at the trial.
CONSIDERATION
Ground 1 – was there a denial of procedural fairness?
Applicant’s contentions
During the hearing before the Tribunal, the applicant stated that an arrest warrant had been issued for him. The Tribunal member at [48]-[49][35] recorded the following exchange between the applicant and Tribunal member:
He said that he had presented warrants for his arrest as a deserter to the Department of Immigration.
I put to [the applicant] that on the evidence before me he had not produced any arrest warrants to the Department. I noted that he might have produced such documents to the … IPAO. [The applicant] said that he had submitted a copy of a ruling. I put to him that I did not have a copy of any rulings before me … [The applicant] said … he still had the arrest warrant at his home …
[35] CB 283
Following the hearing, the applicant provided to the Tribunal:[36]
(a)a document titled “Ruling Extract – Warrant of Commitment” dated 5 January 2011 which, on its face, recorded a conviction and sentencing of the applicant by the Military Court in Basra; and
(b)a document titled “Arrest and Investigation Warrant” dated 10 February 2011.
[36] CB 264-267
The Tribunal found at [67]:[37]
I consider that [the applicant’s] decision to return to Iraq in these circumstances logically supports the conclusion that his claim in his application for a protection visa that he feared being arrested as an army deserter was not true and that he had not been sentenced to imprisonment in absentia for deserting the army nor had a warrant been issued for his arrest as indicated by the documents which were produced after the hearing.
[37] CB 287-288
The Tribunal thus implicitly found that the two documents were not genuine.
The Tribunal, prior to finding that the two documents were not genuine, did not put its concern of fabrication to the applicant and give him an opportunity to comment. Since the applicant did not produce the documents until after the hearing, it is not necessary for the applicant to tender a transcript of the hearing to prove this point.
In WACO v Minister for Immigration & Multicultural & Indigenous Affairs[38] an applicant provided documents to the Tribunal after a hearing. The Tribunal rejected the documents as not genuine in its decision without giving the applicant an opportunity to comment on the Tribunal’s concerns. The Full Federal Court considered whether there was a denial of procedural fairness. The Full Federal Court stated the question as follows at [42]:
The question raised here is whether the tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant’s comment: Abebe v Commonwealth (1999) 197 CLR 510 at 608 ; 55 ALD 1 at 76 ; 162 ALR 1 at 76 per Callinan J. However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant’s relationship with the Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.
[38] (2003) 131 FCR 511
Following a discussion, the Full Federal Court answered the question as follows at [53]-[54]:
In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries it is likewise inherently unfair that the decision-maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
On the basis of the principle explained in WACO, the applicant in the present matter contends that he was denied procedural fairness. The Tribunal’s error is said to have been material. If the Tribunal had put its concerns to the applicant, the applicant may have obtained evidence to prove that the documents were genuine.
Counsel for the applicant also observed that there is a connection between Grounds 1 and 2 in the amended application. As recorded in the Tribunal’s decision at [48]-[49], the applicant told the Tribunal that he had previously provided the “warrants for his arrest” and “a ruling” to the Minister’s Department, in response to which the Tribunal member noted that the applicant may have provided these documents to the IPAO. If the applicant had provided the documents to the IPAO and the IPAO had found the documents authentic, these matters may have affected the Tribunal’s assessment. This is not a separate ground of jurisdictional error, but an observation concerning the connection between the two grounds.
Minister’s contentions
First, the applicant contends that the Tribunal denied him procedural fairness in connection with its findings at [65]-[67] regarding the applicant’s claims that he feared harm in the form of arrest for being a deserter from the Iraqi army, and the Tribunal’s assessment of post-hearing material provided by the applicant in the form of arrest warrants.
The authorities cited by the applicant in support of the ground do not support the proposition that in all circumstances it is necessary for the Tribunal to put an applicant on notice that a particular document submitted in support of a claim might be found not to be genuine. In some cases, it will be necessary for the Tribunal in order to afford a fair hearing to an applicant to give such notice. The Minister submits that the present is not such a case.
The reasons for this are that the Tribunal raised with the applicant at [49]-[50] in clear terms at the hearing that it was sceptical about his claims to have been at risk of harm in the form of arrest or potential arrest from authorities in light of his decision to return to Iraq on a number of occasions, during which he was never detained, including at the border:. The Tribunal made clear to the applicant that it did not possess any arrest warrants that he said had been issued, which prompted the applicant to provide those documents to the Tribunal post-hearing. However, the applicant cannot have assumed that the production of these documents would overcome the Tribunal’s concerns. For instance, the Tribunal had put to the applicant at [49] at the hearing that he had made no mention of such arrest warrants at his interview for the RSA. As the Tribunal found at [65]:
I consider that these documents [the arrest warrants] merely reinforce the point I was making at the hearing before me in relation to his decision to return to Iraq despite claiming that he faced being arrested and imprisoned as a deserter from the army. I consider that if these documents were genuine [the applicant] would have been even less likely to have returned to Iraq since he would have known that he had already been sentenced in absentia to imprisonment for deserting the army.
The Tribunal needed to conduct a fair hearing under s 425 of the Migration Act, which is to say that it had to invite the applicant to give evidence and present arguments about the issues arising in relation to the decision under review. The applicant was on notice at the hearing of the Tribunal’s concerns with his claims that he feared harm of being arrested for being an army deserter, and that his claim (supported or not by documents) that he had in the past been arrested was not credible, as he had not mentioned these arrests when interviewed for the RSA.
Resolution
I find that Ground 1 has been established. The arrest and sentencing documents were critical to the applicant’s claims for protection and the Tribunal did not indicate that there was anything on the face of the documents to suggest that they were forgeries. The Tribunal made no finding of fabrication but rejected the documents simply on the basis that the applicant had returned to Iraq after the grant of the protection visa.
There was no obligation of disclosure under s 424A of the Migration Act because the documents supported the applicant’s claims. Further, the applicant was on notice that his credibility was in issue, both from the delegate’s decision and as a result of concerns raised by the Tribunal at the Tribunal hearing. The documents, however, were provided by the applicant to the Tribunal after the hearing in order to satisfy the Tribunal’s concerns. A critical issue in the review was thus whether the documents were genuine. If they were genuine it would tend to suggest that the applicant had genuine concerns for his safety in Iraq but returned there notwithstanding his fears. If they were not genuine then that would provide a further reason for the Tribunal to affirm the decision of the delegate.
It is also important to note that the applicant asserted that one or both of the documents had been provided to the Minister’s Department before the grant of the visa. The IMR decision confirms that the applicant had provided a copy of the arrest warrant to the Reviewer. That was not known to the Tribunal because it chose to conduct no further inquiry. Given the significance of the documents, however, if the Tribunal was minded to reject them without further inquiry, simply on the basis that they were inconsistent with the applicant’s visits to Iraq, the Tribunal did not afford a fair hearing opportunity to the applicant by putting him on notice that the authenticity, or lack thereof, of the documents was a critical issue in the review.
Further, by failing to invite further information from the applicant about the documents, the Tribunal deprived itself of the opportunity of determining with clarity whether the documents were genuine which, if they were not, would have provided a far more reliable basis for the Tribunal’s decision than simple reliance upon the applicant’s return visits to Iraq.
Ground 2 – did the Tribunal err in finding that the decision to grant a protection visa was based on incorrect information?
Applicant’s contentions
Section 109 of the Migration Act provides:
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
Section 368(1) of the Migration Act provides:
Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
Regulation 2.41 of the Regulations relevantly provides in part:
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
...
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
...
The Tribunal stated at [75] in response to regulation 2.41(c):
I consider that the claims which [the applicant] made in support of his application for a protection visa were the basis for the decision to grant him a protection visa and that he would not have been granted a visa if it had been known that those claims were not in fact true.
The relevant decision by which the applicant was “assessed to be a person to whom Australia has protection obligations” under the Refugees Convention was the IMR decision, but the IMR decision was not before the Tribunal and, based on a review of the documents in the court book, there was no document before the Tribunal which states the basis on which the IMR made its decision. For example:
(a)the Tribunal’s decision does not refer to the IMR decision, although the Tribunal member at [49][39] was aware that the applicant’s case had been considered by the IPAO;
[39] CB 283
(b)sometimes the NOICC contains relevant extracts of the decision by which an applicant was originally granted a protection visa. In the present case the NOICC states at CB 125.2:
Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention … It appears that you did not hold the claimed adverse profile with the Iraqi authorities as stated by you in your protection visa application.
However, two difficulties with these paragraphs are said to be, first, that the applicant did not satisfy the Minister that he engaged Australia’s protection obligations. He satisfied the IMR. Secondly, the adverse profile which the IMR accepted was not in the applicant’s “protection visa application” which was prepared in January 2012. It was in information the applicant provided to the IMR which preceded the applicant’s protection visa application. Accordingly, the paragraph in the NOICC is said to be unreliable;
(c)the delegate’s cancellation decision does not state the basis on which the IMR made its decision. Further, the delegate’s decision, in considering regulation 2.41(c),[40] states:
These claims were fundamental to the determination that [the applicant] was a person to whom Australia has protection obligations. I am satisfied that the delegate took into account the visa holder’s incorrect answers to questions in decision whether to grant the visa and that the decision to grant the view was based at least in part on the incorrect information.
However, as stated above, the applicant complains that it was not a delegate who decided that the applicant engaged Australia’s protection obligations. It was the IMR. Again, this paragraph is said to be unreliable.
[40] CB 209
One possibility is that the applicant persuaded the IMR that:
(a)his claims about desertion from the army were true; or
(b)his claims about threats he received because of his role as a caller in the mosque and his subsequent abduction were true.
However, the RSA comprehensively rejected the plausibility of these claims. The applicant contends that, subject to one idea, it is unlikely the applicant persuaded the IMR that these claims were credible. The idea is that, if the applicant provided the “Warrant of Commitment” and “Arrest Warrant” to the IPAO and the IPAO found that the documents were authentic, this may have persuaded the IPAO to accept this aspect of the applicant’s claims.
The applicant submits that an alternative possibility is that the IMR accepted that, even though the applicant did not have a profile beyond being a Bidoon born in Kuwait who came to Iraq, was granted Iraqi citizenship and resided in Basra (which was a predominantly Shia area) before coming to Australia, based on the country information available to the IMR at the time, the applicant was assessed to be a person to whom Australia had protection obligations.
The question posed by the applicant is whether the Tribunal’s finding in relation to regulation 2.41(c) involved jurisdictional error. The applicant contends that the Tribunal fell into jurisdictional error for one or more of the following reasons.
First, in light of regulation 2.41(c), the basis on which the IMR made its decision was of obvious significance to the exercise of the Tribunal’s discretion under s 109 of the Migration Act, it was within the power of the Tribunal to seek to obtain a copy of the IMR’s decision, and the IMR decision would have indicated the basis on which the IMR made its decision, whether it was:
(a)the basis guessed by the Tribunal; or
(b)the basis proposed by the applicant above.
In Minister for Immigration and Citizenship v SZIAI[41] at [25] the High Court stated:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[41] (2009) 259 ALR 429
In the present case, the Tribunal is said to have failed to make an obvious inquiry (obtaining a copy of the IMR’s decision) about a critical fact (the basis on which the IMR made its decision) the existence of which is easily ascertained.
Secondly, on one interpretation of the Tribunal’s decision, the Tribunal believed that the decision to grant the applicant a protection visa was, in fact, based on the incorrect information. However, in circumstances where the IMR’s decision was not before the Tribunal, the information before the Tribunal does not indicate whether or not the decision to grant the applicant a protection visa was based on the incorrect information. In the circumstances, the Tribunal misunderstood the evidence before it. Where a decision-maker misunderstands evidence before it, this may be a jurisdictional error. For example, in SZRHL v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection)[42] at [34]-[35] Logan J stated:
As I opined by reference to earlier authority in SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113; 112 ALD 501; [2009] FCA 1470 at [37], “the adjectives ‘ignorant’, ‘arbitrary’ and ‘perverse’ aptly apply to a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise”. That is this case. The process of reasoning that led to the damning of the first appellant’s credibility by the tribunal was premised upon the basis that a reference to a “false case” laid against him in the courts of Bangladesh had only emerged belatedly, as opposed to when the visa application was made. That premise was not peripheral.
One way of characterising the tribunal’s reasoning as to the first appellant’s absence of credibility is that it, based as it is upon a false premise, it is illogical or irrational. That is the alternative way in which the appellants grounded their challenge in the court below to the tribunal’s decision and, in this court, put their case that the Federal Magistrates Court had fallen into error. A decision so based is not “within the range of possible acceptable outcomes”: Li at [105] .
[42] (2013) 136 ALD 641
Although SZRHL involved the making of an adverse credibility finding premised on a misunderstanding of the evidence, the reasoning applies more broadly to any critical finding by a decision-maker based on a false factual premise. The applicant contends that the Tribunal’s finding in relation to regulation 2.41(c) was critical. If the IMR had not based its decision on the incorrect information, this would have been a weighty factor in favour of not cancelling the applicant’s visa.
Thirdly, an alternative interpretation of the Tribunal’s decision is that:
(a)the Tribunal was aware that it did not have before it the document (being the IMR decision) which recorded whether or not the decision to grant the applicant a visa was based on incorrect information; and
(b)the Tribunal’s finding in relation to regulation 2.41(c) involved the drawing of an inference.
If so, the Tribunal’s decision involved speculation concerning two equally plausible alternatives.[43] Perhaps the Tribunal was correct, but, as explained above, it was equally plausible that the IMR:
(a)rejected the applicant’s claims beyond being a Bidoon born in Kuwait who came to Iraq, was granted Iraqi citizenship and resided in Basra (which was a predominantly Shia area) before coming to Australia, but
(b)based on the country information available to the IMR at the time, considered that the applicant faced a real chance of serious harm on return to Basra.
[43] In oral submissions, counsel for the applicant put, with the benefit of [10]-[12] and [15] of the IMR’s reasons, that it could have affected the outcome
A decision will be infected by jurisdictional error if a finding of fact, which may be:
(a)a finding of fact “along the way to reaching a conclusion by the decision-maker”;[44]or
(b)a factual matter on which the decision-maker relied in reaching a conclusion;[45] or
(c)a finding of fact on which the decision-maker’s “determination is based”;[46] or
(d)a “central” matter,[47]
involves irrationality or illogicality.
[44] DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30(4)]; Minister for Immigration and Citizenship v SMZDS (2010) 240 CLR 611 at [132]
[45] FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 at [63]
[46] WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 568 at [22]
[47] Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423 at [45]-[47]
Such a finding of fact might be said to be illogical or irrational:
(a)“if there is no logical connection between the evidence and the inferences or conclusions drawn”;[48]
(b)if there is no “rational or probative evidence to support” the finding, or the finding is “made without any probative foundation” or “without any material to found” it;[49]
(c)if the finding of fact lacks an evident and intelligible justification;[50]
(d)if there was no evidence to support a necessary step or element for the finding of fact;[51]
(e)if the finding of fact is not “based upon facts having logical and probative weight”.[52]
[48] SZMDS at [135]
[49] Hands at [44]-[47]; DAO16 at [30(2)]; AOJ18 v Minister for Home Affairs [2018] FCAFC 220 at [31]
[50] Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [48]; Singh v Minster for Home Affairs [2019] FCAFC 3 at [61]
[51] FSG17 at [61]-[63]
[52] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [41]
In the present matter, the applicant submits that the Tribunal’s finding in relation to regulation 2.41(c) involved speculation concerning two equally plausible alternatives, without explaining why it preferred one alternative over the other. Such a finding is said to be illogical or irrational.
A question is whether the Tribunal’s error was material to its decision. As stated by the High Court in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection[53] at [45]:
Materiality … is … essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[53] (2019) 264 CLR 421
The relevant question is “whether there is a realistic possibility that [the Tribunal’s] decision could have been different”[54] if the Tribunal had not made the error it made. In relation to this question:
(a)if the Court decides the Tribunal failed to make an obvious inquiry, the question of materiality may involve consideration of the IMR decision;
(b)if the Court decides that the Tribunal misunderstood the evidence before it or made a finding which was illogical or irrational, the question of materiality does not appear to involve consideration of the IMR decision.
[54] SZMTA at [48], [49] and [50]
In anticipation of the possibility that the IMR decision is relevant to a determination of this matter, by email dated 24 July 2020 from the applicant’s solicitor to the Minister’s solicitor, the applicant requested a copy of the IMR decision.[55] The applicant understands that the IPAO was under the control of the Minister (Department of Immigration and Border Protection) at the time this proceeding commenced. A copy of the IMR decision was obtained.
[55] see email annexed to affidavit of Mr Alkafaji
Minister’s contentions
In the second ground the applicant asserts that the Tribunal failed to make an obvious inquiry about a critical fact, in that it failed to obtain a copy of the IMR decision. Further, he asserts error in the Tribunal having misunderstood the evidence before it, as he submits that the information before the Tribunal did not indicate whether or not the decision to grant the applicant a protection visa was based on incorrect information given by the applicant in his protection visa application. Further, he submits that the Tribunal’s finding at [75] was irrational and illogical.
In respect of the first aspect of the applicant’s argument, it is well-established that the Tribunal is under a duty to conduct a review, not an inquiry. The circumstances in which it will amount to jurisdictional error for the Tribunal to fail to make inquiries, or obtain documents that might support an applicant’s case, are so rare as to be non-existent. The Minister submits that the applicant does not identify any such case law. The fact that the IMR decision might have revealed additional details of general relevance to the applicant’s protection claims is said not to be a reason to create a duty in the Tribunal to obtain it.[56] The applicant was given notice by the Minister’s Department of its concerns about incorrect answers having been given on his protection visa application. The applicant had the benefit of a migration agent representing him. If the applicant wished for certain material to be before the Tribunal when it conducted its review, it was a matter for the applicant to provide that information to the Tribunal.
[56] DRY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1465 at [12]
In respect of the second aspect of the applicant’s argument, it was self-evident that the applicant’s claims given to the RSA were the claims upon which basis he was ultimately granted a protection visa. The applicant was granted the protection visa on 11 January 2012.[57] It is difficult to apprehend on what basis the applicant might have been granted the protection visa if not the very claims he made in his protection visa application, which were, broadly stated, claims to fear harm if he returned to Iraq including for having deserted the army, and for being a Sunni.
[57] CB 104
In respect of the third aspect of the applicant’s argument, and for the reasons given above, there was nothing illogical or irrational about the Tribunal’s observation at [75].
Resolution
I find that the second ground has not been established. The focus of the Tribunal’s attention was properly upon the application for the protection visa and the decision on that application, rather than on the antecedent administrative processes which ultimately permitted the applicant to make that visa application. While, in the absence of any record of the decision of the Departmental officer to grant the visa, it may be surmised that the report and recommendation of the IMR was a determinative factor in the decision to grant the visa, it was the applicant’s claims put to the decision maker once he was given that opportunity which was the relevant consideration.
The fact that the applicant was believed by the IMR is not the determinative factor. What was determinative was the question whether the applicant had made false claims following the IMR decision.
Ground 3 – did the Tribunal err in finding that cancellation of the visa would not lead to a breach of Australia’s non-refoulement obligations?
Applicant’s contentions
The Tribunal, in deciding whether to exercise its discretion to cancel the applicant’s visa, considered at [83]-[89] whether the cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations under the Refugees Convention.
The Tribunal, after considering country information in two UK Home Office reports published in August 2016 and the DFAT Report, found at [89]:
I find that on the basis of the UK Home Office report that there is not a consistent or systemic risk to Sunnis in the southern provinces and that in general a Sunni will not face a real risk of persecution or serious harm in the southern provinces. I do not accept on the evidence before me that there is a real chance or a real risk that [the applicant] will be harmed because he is a Sunni Muslim … I do not accept therefore that there are obligations under relevant international agreements which will be breached if his visa remains cancelled.
The DFAT Report on the one part, and the two UK Home Office reports on the other part, provided different assessments of the risk of harm to Sunnis in the Shia dominated southern governorates. Specifically:
(a)the DFAT Report stated at [3.52] and [3.53]:
DFAT assesses Sunnis living in Shia-dominated provinces generally face moderate levels of societal discrimination … Sunnis in Shia-dominated southern governorates have complained of unfavourable treatment, usually linked to perceived difficulties accessing employment. DFAT assesses that discrimination faced by Sunnis in the south is primarily societal and due to nepotism.
The DFAT report added at [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 destabilizing the government …
(b)the UK Home Office report on “Iraq: Security situation in … the south” (published in August 2016) stated at [8.2.2] in relation to Basra:
Despite sporadic terrorist attacks, the security situation in the province improved markedly during the last few years … As ISIL was stepping up its terror campaign against Shia targets in Baghdad, Basra city’s Sunni minority was targeted by a number of violent attacks. In January 2014 Basra’s provincial governor … announced the dismantling of some checkpoints in Basra city following the improved security situation …
(c)the UK Home Office report on “Iraq: Sunni Arab Muslims” (published in August 2016) stated at [2.2.8] in relation to the risk of harm to Sunnis from Shia militias:
However, it does not appear to form, part of a consistent or systemic risk to Sunnis. Whilst decision makers must consider each case on its merits, in general, a Sunni will not face a real risk of persecution or serious harm in the southern governorates.
The Tribunal considered this country information at [84] (last sentence), [86], [88] and [89].
At [88] the Tribunal noted the difference in assessment of risk between the two sets of reports and expressed a preference for the UK Home Office reports. The Tribunal explained:
I accept that [DFAT] said in its most recent report in relation to Iraq that it assessed that Sunnis in Shia-dominated provinces faced a high risk of violence from Shia armed opposition groups. However that report dates from 13 February 2015 and I prefer the more recent information about the improved security situation in Basra province in particular.
The applicant contends there is jurisdictional error in this finding at [88]. The error is said to be as follows. The sole reason the Tribunal preferred the UK Home Office reports over the DFAT report is that the Tribunal “prefer[s] the more recent information about the improved situation in Basra province in particular”. This appears to be a reference to the report titled “Iraq: Security situation in … the south” at [8.2.2]. However, first, although the UK Home Office report is dated August 2016, [8.2.2] is a quote from a report by another organisation dated 29 May 2015. Secondly, the quoted information refers to the marked improvement of the security situation in Basra province leading up to “the dismantling of some checkpoints in Basra city following the improved security situation” in January 2014. Thus, although the UK Home Office report is dated August 2016, the reference to an improved security situation is a reference to events up to, but not beyond, January 2014. In contrast, the DFAT Report contains an assessment as at February 2015. In short, the DFAT Report contains the more recent assessment.
The applicant accepts that, where there are conflicting country information reports or assessments before a decision-maker concerning past events, assessing present risks or forecasting future events, the decision-maker may prefer one report or assessment (Report A) over another (Report B) concerning the matter in issue, perhaps because Report A is from a more reliable source, or is more comprehensive, or is published more recently, or better addresses the matter in issue. However, the applicant contends that the decision-maker cannot prefer Report A over Report B for a reason which involves a misunderstanding of the reports or which is irrational or which lacks an evident and intelligible justification. For example in BIN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[58] at [9] Lee J stated:
It is uncontroversial that, as the primary judge noted (at [39]), the selection and weight to be afforded to information, such to country information, forms part of the fact-finding function of the authority: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11] per Gray, Tamberlin and Lander JJ). However, in executing such function, the authority must demonstrate, by its reasons, a discernible basis upon which the selection and weight to be afforded to such information is reached.
[58] [2020] FCA 1094
In the present case, the applicant submits that the Tribunal decided at [88] to give no weight to DFAT’s assessment “that Sunnis in Shia-dominated provinces faced a high risk of violence from Shia armed opposition groups” for a reason which was illogical or irrational.
Alternatively, the applicant submits that the Tribunal failed to give proper and genuine consideration to [8.2.2] of the UK Home Office report. In Singh at [30] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. 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.
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 be exercised … 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”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(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 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”: Carrascalao at [48].
The applicant submits that, if the Tribunal had given proper and genuine consideration to [8.2.2] of the UK Home Office report, it would have realised the dated nature of the information in [8.2.2].
The applicant acknowledges that the Tribunal at [88] and [89] also relies on the other UK Home Office report titled “Iraq: Sunni Arab Muslims” which was also published in August 2016. In particular, the Tribunal at [89] states:
I find that on the basis of the UK Home Office report that there is not a consistent or systemic risk to Sunnis in the southern provinces and that in general a Sunni will not face a real risk of persecution or serious harm in the southern provinces.
The Tribunal is quoting almost directly from the UK Home Office report at [2.2.8]. However, the applicant contends that by this point the Tribunal had decided to give no weight to the DFAT Report for the erroneous reason explained at [88].
The Tribunal’s error is said to have been obviously material. If the Tribunal had not “illegitimately” given no weight to the DFAT Report, it may have accepted DFAT’s assessment of the high risk of harm faced by Sunnis returning to Shia-dominated provinces.
Minister’s contentions
In the third ground the applicant asserts error in the manner in which the Tribunal assessed country information reports before it concerning the risk of harm to the applicant if he returned to Iraq. The relevant reports are annexed to the affidavit of Mr Alkafaji made on 8 September 2020.
The Minister submits that the DFAT Report was not more recent, and it did not contain more recent information, than the 2016 UK Home Office report.[59] The Tribunal did not misconstrue the reports, or the nature of the information they contained. There is no dispute between the parties that it was a matter for the Tribunal to select and to weigh the country reports before it.
[59] referred to at footnote 13 of the Tribunal’s reasons at CB 291
Having regard to [8.2.2] of the 2016 UK Home Office report, it made reference to a source that described the security situation in various governorates, including in Basra. It referred to the province not having been directly affected by ISIL’s offensive in June 2014, and the announcement in January 2014 of the dismantling of checkpoints. However, there is no information here to suggest that the source had limited by reference to any point in time the risk assessment that was provided to the UK Home Office, and relied upon by the Home Office in its 2016 report. By the same token, having regard to the DFAT Report at [3.55], which predated the Home Office report, it refers to kidnappings of Sunnis in 2013 and targeting of Sunnis in early 2014. It should also be noted by reference to the Tribunal’s reasoning at [88]-[89] that the Tribunal engaged closely with the material it identified.
The Minister submits that the Tribunal’s assessment of the information before it was not attended by any misapprehension or misunderstanding of the nature of the information. The challenge to the Tribunal’s consideration of the country information must fail.
Resolution
I also find that this ground has not been established.
In my view, the applicant’s submissions stray into an appeal for merits review. Further, the applicant’s attack on the preference for country information stated by the Tribunal is unwarranted. As the Minister points out, both pieces of country information in issue necessarily contained material collected prior to the publication of the relevant report. In that respect, the DFAT Report does not appear to be any more timely than the UK Home Office report. The Tribunal was entitled to have regard to the date of publication of the two reports and it was not necessary for the Tribunal to deconstruct the information in the reports. The Tribunal did need to engage in a meaningful way with the country information it chose to prefer or put to one side. That it did.
I find no error in the Tribunal’s approach.
Ground 4 – did the Tribunal err in failing to obtain the decision of the Independent Merits Reviewer?
Applicant’s contentions
In SZIAI at [25] the High Court stated:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
The applicant’s complaint is that the Tribunal ought to have taken steps, preferably prior to the hearing with the applicant in February 2017 or at least prior to making a decision, to obtain a copy of the IMR decision for the following reasons:
(a)a task of the Tribunal in 2017 was to determine whether, for the purpose of considering whether the applicant gave incorrect answers in his protection visa application, the claims the applicant made for protection in the months following his arrival in Australian waters in September 2010 were true. The applicant gave comparatively contemporaneous evidence (in September 2011) to the Reviewer which persuaded the Reviewer that the applicant’s claims for protection were true, despite the fact that in March 2011 the Minister’s delegate did not believe that the applicant’s claims were true. It is said to be obvious that the applicant gave important and persuasive evidence to the Reviewer which persuaded the Reviewer that the applicant’s claims were true. Just as the applicant’s evidence was probative in September 2011 to the Reviewer’s task, the applicant’s evidence given to the Reviewer in September 2011 is said to have been probative to the Tribunal’s task in 2017 in considering whether the evidence was true;
(b)where a decision-maker’s task in 2017 is to decide whether evidence the applicant gave in 2010 and 2011 was true, prima facie, the applicant submits that the decision-maker must either review the evidence or at least a summary of the evidence. The Tribunal reviewed the evidence the applicant gave to the Minister’s delegate in September and October 2010, but the Tribunal did not obtain (and it appears it did not take steps to obtain) the additional evidence which was before the Reviewer, or a summary of that evidence. Prima facie, where the Tribunal had the task of deciding whether evidence which the applicant gave which was before the Reviewer in September 2011 was true, the Tribunal must obtain a copy of the evidence or a summary of the evidence;
(c)it would have been common knowledge to the Tribunal that applicants usually give additional evidence during the process of the IMR and that the additional evidence is likely to be summarised in the reviewer’s decision;
(d)it would have been common knowledge to the Tribunal that applicants are usually interviewed by a Reviewer during the process of the IMR, and the Reviewer is likely to record his or her views of the applicant’s evidence by way of findings on demeanour and credibility. Such findings are likely to be relevant to a later assessment (eg a few years later) of whether the applicant was telling the truth at the time. For example, if an applicant in 2011 gave evidence spontaneously, in detail and consistently, this may rationally affect an assessment in 2017 of whether the applicant was telling the truth in 2011;
(e)in circumstances where the Tribunal decided that the applicant gave incorrect answers in his protection visa application, a task of the Tribunal was to determine whether the decision to grant the applicant a protection visa was based on the incorrect answers. Again, this is said to have required the Tribunal to obtain the IMR decision, rather than guess the answer;
(f)the applicant told the Tribunal at [48] that he provided a copy of the arrest warrant to the Minister’s Department, which the Tribunal noted at [49] might have been to the Reviewer . Whether or not the arrest warrant was genuine was a critical issue before the Tribunal. Whether or not the applicant provided a copy of the arrest warrant to the Reviewer was clearly relevant to an assessment of the truthfulness of that issue. For example, while country information indicates that the provision to the Department/Tribunal of fabricated documents are common in some classes of protection visa claims for applicants from specified countries in specified time periods, there was no evidence before the Tribunal that in 2011 there was a risk or concern that applicants from Iraq who were in immigration detention (and had been in immigration detention since arrival in Australian waters) were providing fabricated documents to the Minister’s Department. As recorded in the IMR decision at [10], on 1 September 2010 the applicant’s agent provided a copy of the arrest warrant to the Reviewer;
(g)if the Minister’s solicitor was able to locate and provide to the applicant’s solicitor in January 2021 a copy of the IMR decision, the Tribunal could have easily obtained a copy of the IMR decision in 2017. Further, the review before the Tribunal commenced in November 2016 and concluded in June 2017. Accordingly, the Tribunal had ample time to obtain the IMR decision.
The applicant contends that, if the Tribunal had obtained a copy of the IMR decision, “there is a realistic possibility that the Tribunal’s decision may have been different”.[60] Among other reasons, the Tribunal’s approach in relation to the arrest warrant would have been different. For example, any reasonable Tribunal member, if concerned that the arrest warrant might be fabricated, would have taken steps to obtain and then considered country information as at 2011 concerning the risk and ability of applicants from Iraq to obtain fabricated documents from Iraq.
[60] SZMTA at [48]
Minister’s contentions
In the fourth ground the applicant contends that the Tribunal fell into jurisdictional error in failing to exercise its power to obtain the IMR decision. The Minister submits that this ground adds nothing to what is asserted in the second ground. That is to say, the nature of the jurisdictional error (a duty to inquire or obtain documents) is virtually unknown.
It must be kept in mind that as compelled as the IMR decision-maker might have been in determining on the information it had that the applicant was owed protection obligations, the Tribunal had before it different and relevant information concerning the nature of the applicant’s subjective (and objective) fear of harm. The fact that the applicant had travelled so frequently back to Iraq, and stayed on four of those occasions for such a long period, was inimical to the existence of the real risk of harm. The Minister contends that had the applicant wished to convince the Tribunal of the genuineness of his fear, he had every opportunity to do so. The Minister’s Department expressly provided that opportunity, as the Migration Act required. It was not for the Tribunal to scour for documents, even documents that might not have been difficult to obtain, in order to conduct its review.
Resolution
In dealing with this ground, it is necessary to have regard to the decision of Logan J in DRY16 at [12] where his Honour stated:
The core function of the Tribunal was that of review, not inquisition. The absence of the IPA did not, in my view (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, at [18], go to jurisdiction. The Tribunal was not under any obligation to seek out the IPA. All the more so, it was under no such obligation because it was not asked to do that.
It may be readily accepted that obtaining a copy of the IMR decision may well have been of assistance to the Tribunal. Among other things, the Tribunal would have been able to determine that at least one of the documents provided by the applicant to the Tribunal had been given to the IMR, and hence was not a recent invention. It was an inquiry that could have readily been made, and to the extent that the IMR decision drove the subsequent decision to grant the visa, it was an obvious inquiry.
It was not, however, an inquiry that was likely to be determinative. The IMR decision would throw some light on the administrative decision to grant the visa but it obviously could not provide any explanation for the applicant’s return visits to Iraq after the grant of the visa. It was those return visits which stimulated the NOICC and the decision of the delegate. Obviously, where a decision to cancel a visa is made because of facts and circumstances arising after the grant of the visa, any reasons for the decision to grant the visa (or to make recommendations in anticipation of an application for the visa) is most unlikely to be determinative of the cancellation decision under review.
Ground 5 – did the Tribunal otherwise err in finding that the applicant’s decision to return to Iraq on a number of occasions logically supported its conclusion that his claim that he feared being arrested as an Army deserter was not true?
Applicant’s contentions
The Tribunal found at [66]:
I consider that his decision to return to Iraq not once but on a number of occasions logically supports the conclusion that his claim that he feared being arrested as an army deserter was not true. I do not accept that if those claims were true – and if as indicated by the documents which his representatives produced after the hearing, he had been sentenced to imprisonment in absentia for deserting the army and a warrant had been issued for his arrest – he would have returned to Iraq through the airport in Basra as he has said he did.
For the following reasons, this finding is said to have been infected by jurisdictional error.
First, the applicant’s evidence, which the Tribunal accepted at [29] and [65], was that his first attempted return to Iraq (in April 2012) involved entry via Erbil in Iraqi Kurdistan. Erbil is at the opposite end of Iraq to Basra where the applicant’s family lived.
Next, the applicant claimed that his second (this time successful) return to Iraq in May 2012 was again to Erbil, on which occasion he spent eight months in Erbil and “his family – his wife and child and his parents – had come to Erbil and ... stayed with him for the whole time he had been there”.[61] The Tribunal expressly accepted at [65] that “on the second occasion (in May 2012) he went to Erbil in Iraqi Kurdistan”. On a fair reading of the Tribunal’s finding at [65], the Tribunal accepted that the applicant remained in Erbil and did not travel to Basra. Alternatively, “the failure of the tribunal to criticise this account ... suggest that the tribunal made implicit findings that this account was correct”.[62]
[61] at [29] and [30]
[62] STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 556 at [23]
Next, the applicant claimed that his fifth return to Iraq in 2016 was via a border crossing from Iran at Shalamcheh.[63] The Tribunal appeared to accept this evidence at [65].
[63] CB 280 at [39]
The nub of the Tribunal’s concern at [66] was that the applicant “returned to Iraq through the airport at Basra”. Thus the Tribunal stated at [66], as part of its reasons for rejecting the authenticity of the arrest warrant:
I do not accept that if those claims were true – and if as indicated by the documents which his representatives produced after the hearing, he had been sentenced to imprisonment in absentia for deserting the army and a warrant had been issued for his arrest – he would have returned to Iraq through the airport in Basra as he has said he did.
However, the applicant only arrived in Iraq through Basra airport on two of the five occasions. In relation to the remaining three occasions, in the absence of an explanation to the contrary (and none was evident on the materials before the Tribunal or from the Tribunal’s findings) the manner in which the applicant returned to Iraq is said to have been clearly consistent with a fear of persecution. In relation to the first two occasions in 2012, why else would he enter or try to enter Erbil and then remain in Erbil, which is so obviously inconvenient when his family lived in Basra at the opposite end of the country? And, in relation to the fifth occasions in 2016, why else would he enter Iraq through a border crossing from Iran, rather than again fly into Basra?
The applicant contends that the Tribunal did not give proper and genuine consideration to the applicant’s evidence (most or all of which the Tribunal accepted) concerning the first, second and fifth trips.
In Singh at [30] the Full Federal Court stated:
If a statute requires a decision-maker to consider a matter, the decision-maker must give that matter ‘proper, genuine and realistic consideration’; that is, the decision-maker must engage in an ‘active intellectual process’ directed at the matter: Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
The Full Federal Court added at [36]-[37]:
The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. 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.
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 be exercised … 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”: Carrascalao at [45], quoting Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(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 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”: Carrascalao at [48].
In EKN17 v Minister and Border Protection[64] Thawley J stated:
The jurisdiction to conduct a review under Part 7AA is not properly exercised by simply identifying one matter which tells against a particular conclusion and failing to give real consideration to the other matters which tell in favour of that conclusion.
[64] [2019] FCA 1135
In the present matter, the Tribunal, in relation to the five occasions on which the applicant returned or attempted to return to Iraq, placed singular reliance on the two occasions that he flew into Basra airport, and is said to have given no consideration to the remaining three occasions, which involved obvious and significant inconvenience to the applicant and his family and were clearly consistent with a genuine fear of persecution.
Secondly, in the alternative, the applicant contends that the Tribunal’s finding was illogical or irrational in a manner which involved jurisdictional error.
Minister’s contentions
In the fifth ground the applicant contends that the Tribunal failed to give proper and genuine consideration to the applicant’s evidence about his visits to his family in Iraq, and that the Tribunal’s findings in this regard were illogical and irrational. The Minister submits that the argument cannot be accepted.
First, the applicant states that he gave evidence his first attempted return to Iraq in April 2012 was through Erbil in Iraqi Kurdistan, described as being at the “opposite end” of Iraq from Basra where his family lived. He also successfully entered Iraq through this border on the second occasion in May 2012. Further, his fifth return in 2016 was from Iran at Shalamcheh. The applicant submits that the applicant’s entry through border points that were not Basra supported his fear of persecution in Iraq and were not taken into account by the Tribunal in its findings at [66].
The Minister submits that that argument cannot be accepted for the following reasons. First, as the applicant must accept, the applicant still passed through Basra airport on two occasions. Having done so the applicant acted contrary to his claimed fear of harm, and the Tribunal was entitled to draw the conclusions it did about this, including at [66]. Secondly, and in any event, it is quite clear that the Tribunal was aware at [29]-[30] that the applicant had not travelled through Basra on each occasion. Thirdly, the applicant’s claims to fear harm in Iraq were broader than simply being detected passing through Basra airport. For instance, at [50], the applicant told the Tribunal “his name was going to be sent to all border checkpoints and that all the government authorities in Iraq would be looking for him because he was an army deserter”.
The Minister submits that the Tribunal did not fail to address, or properly consider, the applicant’s evidence in this respect. Its findings were logical and rational, and explained in its decision record.
Resolution
This ground is also an invitation to the Court to embark upon merits review. It was open to the Tribunal to conclude that the applicant’s return visits to Iraq, and in particular his two visits through Basra airport, supported a conclusion that his claims to fear harm in Basra were incorrect. As I have stated in relation to the first ground, that decision would have been better informed if the Tribunal had sought more information from the applicant about the documents he furnished to the Tribunal after the Tribunal hearing. The decision would probably have also been better informed if the Tribunal had obtained and considered the IMR decision. The first point, however, is a question of procedural fairness, not of the reliability of the Tribunal decision. The second goes to the quality of the decision, not the legality of it.
I find that the fifth ground has not been established.
CONCLUSION
The applicant has succeeded in establishing Ground 1 in his application. He should therefore receive the relief he seeks. I will make orders for relief in the form of the writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 9 April 2021
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