DFS17 v Minister for Immigration - [2019] FCCA 1912

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFS17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1912

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – applicant originally granted protection visa on basis of imputed political views – Ministerial Delegate accepted applicant had been associated with US military in Najaf and was subject to real chance of suffering as a consequence of being targeted by extremist militias – applicant subsequently returned to Iraq on two occasions – given notice that the Department considered he had provided incorrect answers in original protection visa application – visa cancelled on this basis – AAT found applicant had given incorrect answers in his protection visa application form – AAT considered applicant’s fear of execution inconsistent with him travelling back to Iraq on two separate occasions – no jurisdictional error established – AAT decision was not legally unreasonable – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2), 65, 101(b), 109

Cases cited:
Chan v Minister for Immigration (1989) 169 CLR 379
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473

Applicant:

DFS17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 294 of 2017

Judgment of:

Judge Brown

Hearing date:

7 June 2019

Date of Last Submission:

7 June 2019

Delivered at:

Adelaide

Delivered on:

17 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr Jones

Solicitors for the Applicant:

Parish Patience Legal and Migration

Counsel for the Respondents:

Mr Ellison

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for review filed 19 July 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in an amount of six thousand dollars ($6,000.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 294 of 2017

DFS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons relate to a judicial review of an administrative decision to refuse a protection visa. The applicant is a citizen of Iraq. He was born in Basra and is a Shia Muslim by religion and Arab by ethnicity.
He joined the Iraqi army in 2004, after the fall of the Saddam Hussein regime. He claimed that his army unit worked closely with the United States led Coalition troops, which occupied Iraq between 2007 and 2012.
In 2012, the Coalition troops began to withdraw from Iraq. This period coincided with the rise of various insurgent groups, who targeted and killed individuals, whom the insurgents associated with the Coalition’s occupation of Iraq.
The applicant claims to have left the Iraqi army in 2012 and thereafter to have worked as a driver in Najaf. In March of that year, he alleges that he received death threats, as a consequence of his previous involvement with Coalition troops, particularly those of the United States.
Against this background, he left Iraq, in June of 2012, on the basis he believed his safety was compromised. He travelled to Australia. Upon his arrival in this country, he applied for a protection visa pursuant to the provisions of the Migration Act 1958[1] claiming to be in fear of his life, if he returned to Iraq because of political views likely to be imputed to him.
[1] Hereinafter referred to as “the Act”
In support of his application for protection, he claimed he feared that, if he returned to Iraq, he would be killed by insurgents associated with the Islamic state of Iraq because he would be identified as having worked for the American led Coalition army. He further claimed that his family would be in danger because of his association with the Coalition.
Pending the grant of any protection visa, the applicant was interviewed by a departmental officer in May of 2013 in respect of his claim to be entitled to Australia’s protection. His claims for protection can be summarised as follows:
·Since Al Qaida had entered Iraq explosions and killings had become usual;
·It was well known that he personally had worked with the American military;
·Mujahedeen and other extremist militia groups were everywhere in Iraq and they targeted and killed former Iraqi personnel who were identified as having served with US/Coalition troops;
·Given the extremist groups operated throughout Iraq and had strong influence, it was impossible for him to relocate to any area, within Iraq and remain safe;
·The extremist groups were well organised and were able to exchange information about potential targets of which he was one, given the threats personally made against him;
·After he had left Iraq, his wife had received a telephone call inquiring about his whereabouts.
As a consequence of these matters, the applicant claimed that if he returned to Iraq, the possibility that he would be killed by either extremists; the Mujahedeen or other terrorists was extremely high. He assessed the probability as being 99.9%. He further stated that he doubted the Iraqi authorities would be able to protect him in any location within Iraq.
On this basis, the applicant was granted a protection visa on 16 August 2013, it being accepted he had worked for the Iraqi army between May 2004 and early 2012 and during this period had received training from the US forces in Iraq. Thereafter, it was accepted that he had received death threats and was at risk of suffering significant harm as a consequence of political opinions likely to be imputed to him.

Legal considerations relevant to the grant of protection visas

Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
These sections reflect the definition appearing in the Refugees Convention, to which Australia is a signatory and which provides that a refugee is a person who:
“…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The High Court has established that this definition has both subjective and objective elements. The question to be asked by the relevant decision maker being does the applicant subjectively fear persecution and is that fear objectively well founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country. Necessarily these matters are predictive in nature. They are often encapsulated under the rubric of the real chance test.
In this context, the High Court has said as follows:
“The objective element requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant …
Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality. If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country. Yet absence of past persecution does not deny that there is a real chance of future persecution.
Again, because the question requires prediction, a decision-maker will often find it useful to consider how persons like the applicant have been, or are being, treated in the applicant’s country of nationality. That is useful because it may assist in predicting what may happen if the applicant returns to the country of nationality. …”[2]
[2] S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 478 – 479 [72] – [73]
In cases such as Chan v Minister for Immigration[3] and Minister for Immigration v Guo,[4] the High Court has indicated that a fear can be well-founded even if there is no certainty or even probability that it will be realised; or even though there is only a ten percent chance that persecution will occur. However far-fetched possibilities of persecution must be excluded.
[3] Chan v Minister for Immigration (1989) 169 CLR 379
[4] Minister for Immigration v Guo (1997) 191 CLR 559
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.
In this case, on 24 June 2013, a delegate of the Minister accepted that the applicant was a refugee because if returned to Iraq there was a real chance he would be persecuted because of political views likely to be imputed to him because of his previous association with the Coalition forces occupying Iraq.

The current application

It is not in dispute that the applicant returned to Iraq, notwithstanding the grant of a protection visa to him, for two periods between 28 September 2014 – 26 December 2014 and 21 July 2015 – 19 October 2015 respectively.
The applicant was interviewed, by departmental staff, in respect of this travel. As a consequence, on 22 April 2016, the applicant was issued with a notice under section 109 of the Act informing him that a ministerial delegate was considering cancelling his visa.
In this notice, the delegate noted as follows:
“As it is apparent you voluntarily entered Iraq a year after you were granted your visa, and returned there in 2015, I consider that you did not believe that your life was under threat in the context of the claims that you made. It is apparent that despite your claim of being targeted by an extremist militia - Mujahidin of Islamic State of Iraq - you were willing to travel directly back to the·region in Iraq where you claimed that you were a target of that militia and faced the most danger. Your stays in Iraq were not for insignificant periods of time; rather, they were extended stays in which according to your own claims you would have come to the attention of the militia. Based on your claims in which you stated that the militia was effective in tracking you and your family members down, I consider that if you held an adverse risk profile, this militia would have once more located you. As it is apparent that this did not occur, I consider that you did not hold an adverse profile, nor were you of adverse interest to this militia, as you claimed in your protection visa application.”[5]
[5] See casebook at 137
The applicant was invited by the Department to comment on these matters. He indicated that he had returned to Iraq to obtain a passport for one of his children on the first occasion; and had travelled to Iraq, on the second occasion, to attend his mother’s funeral.
On 2 December 2016, a ministerial delegate cancelled the applicant’s visa on the basis that he had not complied with section 101(b) of the Act on the basis that he (the applicant) had provided incorrect answers in his original application for a protection visa, in contravention of section 101(b) of the Act.
In general terms, the delegate asserted that the information provided, in the protection visa application, namely that the applicant had left Iraq in order to preserve his life because of the threat represented by extreme militia groups was incorrect, on the basis that he had been able to return to Iraq, on two occasions, for prolonged periods, during which he had come to no harm.
Section 101(b) reads as follows:
“(b) no incorrect answers are given or provided.”
Pursuant to a procedure contained in section 107 of the Act, the Minister has a discretion to cancel a visa issued under the Act, if of the view that there has been a non-compliance with section 101. Thereafter, as in this case, the Minister is required to give the relevant visa holder particulars of the possible non-compliance.
Pursuant to section 109, the Minister may cancel any such visa if satisfied that there has been non-compliance with any statutory requirement to provide correct information in support of a relevant visa application.
In this particular case, after having reviewed the evidence available, including the applicant’s response, the ministerial delegate concluded as follows:
“Given that the visa holder has returned to Iraq on two occasions and remained there for a total of 6 months, it appears that he did not hold a profile of risk nor hold a fear of return as he stated in his protection visa application. As the incorrect information provided was material to this determination it appears he may not have engaged Australia's protection obligations.”[6]
[6] See Case Book at 226 [18]
On 6 November 2016, the applicant sought a review of this decision in the Administrative Appeals Tribunal.[7] On 19 June 2017, the AAT affirmed the decision to cancel the applicant’s protection visa on the basis of non-compliance with the applicable provisions of the Act.
[7] Hereinafter referred to as the AAT

The decision of the AAT

The AAT summarised the issue for its determination by reference to section 101(b) of the Act, namely had it been established that the applicant had given incorrect answers in his original application for a protection visa and therefore the procedure available to the Minister, pursuant to section 107 had been properly applied, leading to the exercise of the cancellation power under section 109.
The incorrect answers, relied upon by the ministerial delegate, being that the applicant feared for his life, if he returned to Iraq. It being contended that this answer must be incorrect or untruthful, given the fact that the applicant had returned to Iraq, for two extended periods of time, reasonably soon after the assertion had been made and therefore it could not have been true at the time it had been made.
In its decision, the Tribunal summarised the applicant’s original 2012 claims for protection. These can be summarised as follows:
·He was in his early forties; a Shia Muslim, born in Basra, who had lived in Kufa and Najaf;
·Between 1993 and 1996, he had undergone military service but had not been an active combatant;
·Between 1996 and 2004, he had lived in Najaf;
·He had re-joined the Army in 2004, which had led to his involvement with the American forces;
·In 2012, with the withdrawal of Coalition troops, there had been an increase in insurgent attacks in Najaf, which had targeted persons associated with the Americans;
·In particular, two persons with whom he had worked had been killed;
·He had left the Army, in March of 2012, and began to work informally as a taxi driver in Najaf. During this period he had received a threatening telephone call;
·In June 2012, his wife had also received a threatening phone call;
·He himself had received a further threatening phone call. This led him to cease work as a taxi driver and leave Iraq;
·He believed that the persons threatening him were part of the Mujahedeen of the Islamic State of Iraq, which operated throughout Iraq;
·As such, he could not move to another part of the country to be safe;
·It was well known to people living in Najaf that he had been associated with the American Coalition in Iraq and before he had left Iraq he had been extremely cautious about leaving his home;
·His wife had moved homes since she received her threat;
·In all these circumstances, the applicant believed there was a big possibility – 99.9 per cent probability – that he would be killed, by one of the extremist groups operating in Iraq;
·The Iraqi authorities were not able to protect him.
The applicant provided evidence to the AAT in response to the notice issued to him. This centred on the truthfulness of his earlier statements to the delegate in the light of the fact that he had returned to Iraq in 2014 and 2015.
In this context, the evidence of the applicant can be summarised as follows:
·The applicant had had compelling reasons requiring his return to Iraq;
·He had returned to Iraq in 2014 to obtain a passport for his infant son. He had to be presented before the passport could be issued;
·He had returned again in 2015 to attend his mother’s funeral;
·In 2015, to avoid detection, he had assumed another name;
·He had lived inconspicuously in a tent, outside of Najaf;
·He had spent the last ten days of his mother’s life, with her, at his brother’s house but had not actually attended her funeral. Thereafter he had been disconsolate.
As the Tribunal was entitled to do, it questioned the applicant in regards to his claims. It was put to him:
·A close male relative could have collected the passport in 2014;
·He had no need to remain in Iraq after the passport had issued;
·It seemed unnecessary for him to remain in Iraq for three months after his mother had died.
The applicant denied that it was possible for another person to collect the passport. He also indicated that his wife’s mental health had been very poor and this was a factor in him deciding to stay longer in 2014. Further, both he and his wife had been very depressed following his mother’s death. In any event, the Department of Foreign Affairs & Trade had granted him permission to leave Australia and return to Iraq.

In the context of these matters, the Tribunal asked the applicant to reconcile his earlier statement, made in 2012, that there was a 99.9% probability he would be killed if he returned to Iraq, with his conduct in returning to Najaf on two occasions for periods amounting to around three months on each occasion.
The applicant maintained his earlier position regarding the degree of risk faced by him but deposed that he had ameliorated this risk by planning his visits carefully; limiting his movements in Iraq; keeping a low profile; and have a well-considered contingency plan to leave, if he was detected.
The Tribunal had country information available to it which indicated that from 215 onwards, Al Najaf and Basra provinces were under Iraqi Government control and so had an acceptable level of security. In this context, the applicant indicated that various extremist groups continued to operate in these areas and their members knew him by sight and as such he remained at risk.
The Tribunal found the issue of whether the applicant had or had not sought departmental approval prior to returning to Iraq to be irrelevant to the determination of the question whether the applicant had given incorrect answers in respect of his initial application for a protection visa.
The Tribunal also considered it relevant that the applicant had returned to the Najaf area, where he was well known and which was where he had received the earlier alleged threats against him. In this context, the Tribunal made the following findings:
“Although the applicant's representatives said that the applicant had maintained a low profile (and the applicant repeated this at the hearing before me) I consider it relevant that he has said that he returned to the very place where he said in the statement accompanying his application for a protection visa he had received threats because of his involvement with the American troops. Having regard to his evidence with regard to where he went, who he stayed with and what he did, I consider that, although he said that the extremist militias had not been expecting him to go back to Iraq, his presence in Iraq can hardly have failed to come to the attention of other members of the community in Kufa and Najaf. The applicant's representatives submitted that the applicant had returned to Iraq for compelling reasons and that, although he had remained for three months, this did not mean that he would have been safe for a longer period. However, while I might take a different view if the applicant had only returned briefly to obtain a passport for his son and to care for his dying mother, I consider that the fact that he remained for around three months on each occasion logically supports the conclusion that he did not in fact fear being killed by extremist militia groups as he had claimed in the statement accompanying his application for a protection visa.[8]
[8] See Case Book at 308 [59]
The Tribunal then went on to consider whether it was open to it to conclude that the earlier statements, made by the applicant, could have been truthfully made because he held a different view in 2014/2015 because of the change in the security situation in the relevant southern provinces of Iraq.
In this context, the Tribunal had regard to the applicant’s evidence that he did not believe that the threat arising to him from militias had diminished since his original departure from Iraq and he remained known as a person who had worked with the Americans.
Accordingly, the Tribunal found as follows:
“I do not consider that there is any scope for an argument that the applicant believed that it would be safe for him to return to Iraq in 2014 and 2015 because the threat to which he had referred to in his application in 2012 had diminished.”[9]
[9] See Case Book at 308 [60]
In these circumstances, the Tribunal concluded that that applicant had given incorrect answers in his original protection visa application, when he said that he could not return to Iraq because of the level of fear he held for his personal safety there because of the threat to him posed by extremist militia groups.
Thereafter, the Tribunal considered other matters relevant to the exercise of the discretion arising from section 109(2) not to cancel the relevant visa. These matters are not relevant, given the grounds of review relied upon by the applicant, which turn on the Tribunal’s findings in respect of the issue of whether the applicant had provided an incorrect answer.

The nature of judicial review proceedings

Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[10]
[10] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[11]
[11] See Craig v South Australia (1995) 184 CLR 163
In Minister for Immigration & Citizenship v Li[12] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked “an evident and intelligible justification” was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker.
[12] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76]
As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error. In some cases, a decision which no reasonable person could have arrived is also subject to being characterised as legally unreasonable.
In order to be successful in his application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal.
As I understand the applicant’s position, in the present case, it is that the decision of the AAT lacks the required level of intelligibility and is therefore open to be characterised as being legally unreasonable and therefore should not stand.

The current review application

On 19 July 2017, the applicant commenced proceedings, in this court, seeking a review of this decision. This application was amended, with leave of the court, on 5 April 2018. The sole ground of the application is as follows:
“The Tribunal made a jurisdictional error by making a legally unreasonable finding of fact in finding that the Applicant had given incorrect answers in his application form for a protection visa and had not, therefore, complied with s 101(b) of the Migration Act 1958 (Cth).”
The claim of jurisdictional error was supported by four particulars. These are not particularly well expressed but can be summarised as follows:
·The Tribunal had erroneously omitted from its decision, the specific reasons why the applicant had travelled to Iraq in 2014 and 2015;
·The Tribunal had erroneously omitted from its considerations, the fact that the applicant had changed his name;
·There was a legally inadequate foundation for the Tribunal’s finding that the applicant could hardly fail to come to the notice of other members of the community of Kuta and Najaf;
·The Tribunal placed undue weight on the length of the applicant’s stay in Iraq on each occasion.

Discussion

Mr Jones, counsel for the applicant, contends that there are logical flaws arising from how the Tribunal deduced that his client had been disingenuous in what he initially indicated to the Department in the protection application on the basis of its findings regarding his conduct in returning to Iraq in 2014 and again in 2015 and the duration of each such visit.
In this context, he submits that a person may logically still be considered to have held the prerequisite level of subjective fear required to satisfy the definition of refugee contained in sections 5H and 5J of the Act, at an earlier time, notwithstanding the fact that subsequently they behave in a way, which appears to be objectively inconsistent with such a fear.
As such, he submits that the Tribunal arbitrarily distinguished between a three month trip – as in the case of the applicant – and a theoretically shorter trip, which on the reasoning of the Tribunal would not potentially vitiate the earlier professed fear of return. He puts his argument thus in his written submissions:
“A person, having been compelled to travel by reasons of such magnitude that they outweigh subjective fear, could remain for as long as they had successfully avoided detection. This could, with good fortune, plausibly be for a period of months. The fact that the person had such fortune does not mean that there is a logical connection between the presence for months and the absence of subjective fear.”[13]
[13] See applicant’s written submissions at [6]
As I understand it, the applicant contends that it was legally unreasonable, in the sense of being without a logical basis, for the Tribunal to conclude on the ground that the applicant had returned to Iraq for relatively extended periods of time, that he had not been fearful of returning there when he had made his original protection application.
In this case, it is submitted it was open to the Tribunal to conclude, in the case of each return trip, that the applicant did have reasons to compel his return, which would have the effect of outweighing his fears for as long as he remained undetected, which might conceivably be a very long period of time, if he was fortunate and took adequate precautions. These reasons related to the illness of his mother; and the need to get a passport for his son.
As such, it was illogical for the Tribunal to rely on the length of the trip alone. Essentially, as I understand, it was not logical for the Tribunal to conclude the applicant was not fearful in 2012 merely because he had subsequently gone to Iraq for periods of weeks and months, rather than days. What the Tribunal should have done was more thoroughly weighed up the composite reasons for the return to Iraq and what the applicant did when he was there.
In similar terms it is argued that the Tribunal has put excessive weight on its finding regarding the inevitability of the applicant coming to the attention of community members in Kufa and Najaf and thence to the notice of the insurgency militias said to be operating in those areas, who, on the applicant’s 2012 statements, he greatly feared because he believed he would be killed by them.
It was submitted that it was not logical to conclude that the applicant’s level of fear, as expressed in 2012, must have been fallacious, just because he was prepared to take such a risk in 2014/2015. It not being logical for the Tribunal to conclude the applicant could hardly have failed to come to the notice of community members, particularly if it accepted he would maintain a low profile.
Similar concerns are raised in respect of the lack of reference to the fact that the applicant’s case was that he had, in fact, taken steps to avoid drawing attention to himself, in Kufa and Najaf, by assuming another name and had kept a low profile.
In my view, the difficulty with the applicant’s analysis is this. The Tribunal was required to compare what the applicant had said and done to the Department, in 2012, with its findings of what he had done in 2014 and 2015. This was fundamentally an exercise in fact finding. From this analysis, it was required to conclude whether or not the statements made by the applicant, in 2012, could have been correct, in the light of how he behaved later.
As with many fact finding exercises, it is a question of degree and what weight an individual fact finder places on different factors to reach a conclusion. Different minds may reach different conclusions about the same factors as a consequence of placing varying degrees of weight or emphasis on the various considerations applicable. This does not necessarily make one conclusion logical and the other illogical. Rather the fact finders in question have applied an idiosyncratic reasoning process to the decision making process.
It cannot be the case that each fact finding task has only one logical conclusion and that therefore an alternative finding must axiomatically be illogical. In this case, in my view, the applicant invites the court to make its own analysis of the factual situation and reach a different conclusion to that of the AAT. In my view, this would be tantamount to a merits based review, which is impermissible on judicial review.
The applicant submits that the evidence he presented to the Tribunal indicated that he had taken steps, in response to his idiosyncratic personal situation, which could conceivably be consistent with a person who remained significantly in fear, as he had claimed in 2012.
Essentially, just because the applicant took actions apparently counter to his fears and interests, as expressed at one point of time, at a later time, this cannot amount to a logical negation of those fears, when his actions are later assessed. Therefore the conclusion reached by the Tribunal was legally unreasonable on the basis of being illogical.
I agree with this proposition. However, it is a matter of degree and, in my view, the assessment of that degree, is for the fact finder, not a reviewing court such as this one. In this case the Tribunal assessed a degree of factors, which included the following:
·The extreme degree of risk as expressed in 2012;
·He was well known in Najaf;
·Extremists knew what he looked like and could identify him by sight;
·Nonetheless he went to Najaf and stayed for two reasonably lengthy periods of time.
I concede that another fact finder may have chosen to place different emphasis on other factors, such as the assumed name; the low profile taken; and the careful planning; to reach a different conclusion but that does not automatically render the original conclusion illogical. In this case, it was up to the AAT to approach the facts and give individual emphasis to the facts as it considered appropriate.
As the High Court pointed out in Minister for Immigration & Border Protection v SZVFW[14] a decision is either legally unreasonable or it is not. The distinction is absolute and therefore axiomatic. A decision cannot be slightly illogical or another conclusion more logical. Whether a decision is either legally illogical or logical must depend on an analysis of the facts, within the statutory context applicable.
[14] Minister for Immigration & Border Protection v SZVFW [2018] HCA 30
It is an essentially precursor to the legal exercise of any statutory power that it is exercised reasonably. In SZVFW Nettle & Gordon JJ analysed the task, set for a court such as this conducting judicial review, in determining whether a particular decision was beyond power because it was legally unreasonable.
The task requires the court:
·To assess the quality of the administrative decision having regards to the scope, purpose and objects of the statutory source of power;
·This question involves consideration of whether a statutory power has been abused by the decision maker;
·The manifestation of abuse cannot be definitively categorised. It is not limited to:
·a decision maker taking into account an irrelevant consideration;
·failed to take into account a relevant consideration;
·the exercise of a power in bad faith; or
·cases which may be described as manifestly unreasonable.
·It is an exercise which focuses on the existence of justification, transparency and intelligibility within the decision-making process, which are defensible in respect of the facts and law;
·It is invariably fact dependent and therefore requires a careful evaluation of the evidence.
Central to the formulation of these consideration was what was said by Gageler J in Minister for Immigration & Citizenship v Li. His Honour considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[15]
[15] (supra) at [105]
Specifically, in SZVFW Nettle & Gordon JJ said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.” [16]
[16] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84]
In this particular matter, the Tribunal was required to make a judgement in respect of the exactitude of answers provided by the applicant, in support of his successful application for a protection visa, in the context of what could be deduced from his subsequent behaviour in returning to Iraq.
The Tribunal concluded that the original claims of risk must have been exaggerated to such a degree that they were liable to be characterised as being incorrect in nature because otherwise the applicant would not have returned to Najaf for such a lengthy period of time.
The reasons of the Tribunal are lengthy. The Tribunal made reference to favourable and non-favourable aspects of the applicant’s case. It was aware he had assumed a false name. It did consider the reasons provided by the applicant as to why he had returned to Iraq and the length of each visit concerned. As such, it did evaluate the applicant’s case. In Gageler J’s terminology, in my view, the decision of the AAT did fall within a logically defensible range.
I concede that another decision-maker may have given different weight to other factors raised by the applicant, such as the care he took on his return to Najaf and so that theoretically alternative decision-maker could have logically concluded that the applicant had taken appropriate steps to counteract the risk to which he was subject, which did not therefore result in the factual negation of the degree of risk, as he had characterised it in 2012, namely 99.9%.
However, I am dealing with the actual decision-maker not a theoretical one. In my view, there is a defensible thread of logic which passes through the reasons of the AAT in this case. The Tribunal did not accept, given the extraordinary level of risk, detailed by the applicant in 2012, that he would have returned to Iraq, in the manner and for the length in which he did, in 2014 and 2015, if that original assessment of risk provided by him had been true.

In 2012, in assessing the applicant’s claim for a protection visa, the ministerial delegate was required to assess the subjective level of the applicant’s fear that he would be subject to persecution if he returned to Iraq. In this context, the actions of the applicant in returning to Iraq are liable to assume relevance in the subsequent assessment of the veracity or otherwise of his statement of the level of his subjective fears, as they pertained to his safety in Iraq and Najaf in particular. His subjective assessment of this risk was extreme.
The tenor of the applicant’s original position was that he was well known to extremist militia groups operating in Najaf, who knew both his name and what he looked like. As a consequence, he was liable to summary execution because it was well known, in Najaf, that he was a person who had been actively associated with the US Army.
The Tribunal did not accept a person, subject to such a degree of risk, would expose himself to it willingly, for an extended period of time. That the applicant apparently had done so, albeit with some prophylactic precautions, necessarily rendered his original statements regarding the degree of risk fallacious.
In my view, this was the issue that the Tribunal was required to assess, which it did. As such, in my view, it completed the jurisdictional task delegated to it both legally and reasonably. That another decision-maker, in theoretical terms, might conceivably have reached a different conclusion, by placing greater weight on other aspects of the applicant’s case, does not render the decision irrational or an abuse of the statutory power.
The decision falls within a logically prescribed range of outcomes. In this context, the following statement of Crennan & Bell JJ made in Minister for Immigration & Citizenship v SZMDS[17]are apposite:
“What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
[17] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130]
In my view, the Tribunal’s reasons evidence that it did have an active intellectual engagement with the issues raised by the applicant. It had to consider whether a person with the professed level of subjective fear of what would happen to him, if he returned to Iraq, would in fact do what he said he feared – that is return to Iraq in the manner in which he did. This required an assessment of the circumstances surrounding the applicant’s actual return to Iraq set against what he said was his fear in 2012.
The Tribunal considered the applicant’s explanation as to why he was compelled to return and what he did there to safeguard himself. Again, as with the situation in 2012, this involved an assessment of the subjective elements of the applicant’s case. In this context, the applicant indicated that, although he continued to be fearful, with precautions, he was content to stay for some time in Najaf. In these circumstances, he contends that it cannot be said that his original statements to the Department were ipso facto incorrect.
Accordingly, the applicant attacks the Tribunal’s finding of fact, regarding what it found to be an extreme level of dissonance between what the applicant said was his subjective view of his safety in 2012 and how he actually behaved in 2014 and 2015. As such, the applicant characterises this finding of fact as unreasonable in the sense of being illogical.
In my view, the Tribunal was entitled to take a different view, of these matters, as part of its fact finding task in the case. Although it accepted that members of the extremist militia would not have been anticipating the applicant’s return to the location, at which he had allegedly been threatened, the applicant’s case nonetheless was that he was known and wanted in Najaf. In these circumstances the Tribunal considered that the extent to which the applicant had stayed and moved in Najaf was incongruent with the level of fear as described by him in 2012.
In its reasons, it alluded to the fact that it might have taken a different view if the visits had been shorter. This recognises the fact that necessarily there must be a range of decisions factually open to the decision-maker concerned, each of which are to be considered legally reasonable. However, each integer of such a range of outcomes must be characterised by a satisfactory level of logical reasoning.
Again in SZMDS Bell & Crennan JJ explained what flaws of reasoning may render an evidentiary finding illogical or unreasonable. They said as follows:
“… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.”[18]
[18] Ibid at [135]
In this case, it cannot be said there was only one logical conclusion available and the Tribunal did not come to it. Nor, in my view, can it be said that there is no logical connection between the overall evidence available to the Tribunal and the conclusion it reached about the correctness of the applicant’s 2012 statements about the degree of threat facing him in Iraq in the light of how he subsequently behaved.
In summary, I am satisfied that the Tribunal did engage in a proper, genuine and realistic consideration of the case before it. As such, its findings cannot be characterised as being legally unreasonable. In the circumstances, as no jurisdictional error has been established, the application must be dismissed.
The Minister seeks costs in an amount of $6,000.00. I accept that costs should follow the event. I will make an order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 17 July 2019