DRH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1599
•16 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DRH16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1599
File number(s): SYG 3394 of 2016 Judgment of: JUDGE HUMPHREYS Date of judgment: 16 July 2021 Catchwords: MIGRATION – Immigration Assessment Authority – whether the decision of the Authority was infected with legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), ss 473DB, 473DC, 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
DPI17 v Minister for Home Affairs [2019] FCAFC 43
Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 32
Number of paragraphs: 63 Date of last submission/s: 6 July 2021 Date of hearing: 6 July 2021 Place: Parramatta Solicitor for the Applicant: Mr Bodisco Counsel for the Respondents: Ms Poukchanski ORDERS
SYG 3394 of 2016 BETWEEN: DRH16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
16 JULY 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondents costs fixed in the amount of $5,800.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a male Shia citizen of Iraq. The applicant arrived in Australia on 13 October 2012 as an irregular maritime arrival. On 3 December 2016, the applicant lodged an application for a temporary protection visa. On 15 September 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 11 November 2016, the Authority affirmed the decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The applicant’s claims are set out at paragraph 14 of the Decision Record. They are as follows:
•He worked in a shop that sold western and adult movies despite the dangers surrounding this type of business. It also updated mobile phone software.
•The religious militias including the Mahdi army were tracking anybody who dared to sell these types of movies and were keeping watch over all video shops.
•The militias inspected his shop but he was cautious and careful not to get caught, however they became interested in him and demanded that he collaborate with them by providing information, photos and videos obtained from the customer’s mobile phones.
•If he provided information about people he knew that they would seek revenge against him.
•He was also having a sexual relationship with a girl named N who used to come into his shop. On one occasion her sister secretly filmed them having sex.
•The sister then started blackmailing him and demanding money otherwise she would give the video to the militias.
•On 28 August 2012 a friend of his who was an affiliate of the militias informed him that they were planning on arresting him and executing him in public because of this video, accusing him of having made a pornographic movie in order to sell for profit.
•The next day when he was attending his classes a friend contacted him and advised that the militias had raided his shop and destroyed it using explosives and were now searching for him. He also learnt that his girlfriend N had been killed by the militia.
•He then travelled to Baghdad immediately, and later learned that the militias had been to his family home and threatened his family.
•Since his departure the militias have continued to search for him and have accused him of seducing girls and secretly filming them during sex in order to sell the videos or blackmail the girls.
•He claims that he has been labelled an enemy of Islam and accused of distorting the image of Islam in the holy city of Najaf.
•They have also accused him of being a collaborator with foreign intelligence agencies in an attempt to undermine Islam.
•He fears the religious militias and the Iraqi government will torture and kill him if he returns.
At paragraphs 14 to 17 of its decision, the Authority noted that the applicant claimed in his protection application and interview that he owned and operated a mobile phone business that also sold DVDs, including Western and adult films. In the applicant’s entry interview, he stated that he worked at such a shop, but that his role was just temporary. The Authority noted that it had reviewed the recording of the applicant’s entry interview and was satisfied that the applicant was given sufficient opportunity to fully describe his previous employment, and, accordingly, provided clear and unambiguous answers to the questions about his past employment.
The inconsistency in the applicant’s employment history in his entry interview and subsequent protection application and interview was such that the accounts were substantially different. The Authority was not satisfied that the applicant’s latter description, being the owner of the business, was simply an elaboration of the claims presented at the entry interview. The Authority did not accept that the applicant owned a mobile phone shop that also sold movies. The Authority placed greater weight on the applicant’s evidence of his earlier entry interview. The Authority concluded that the applicant worked on a casual basis at a mobile phone shop from approximately 2008 until his departure in 2012.
At paragraph 17 of its decision, the Authority noted that, at the applicant’s protection application and interview, the applicant claimed that he sold adult and Western movies from the shop he owned. In view of the finding that the applicant did not own a shop and was only a casual employee of a shop which sold mobile phones, the Authority did not accept that the applicant downloaded or sold, or bought and resold, Western or adult movies in his own right. The Authority accepted that it was plausible that the mobile shop, in which the applicant was employed, might have sold or hired Western or adult movies.
At paragraph 18 of its decision, the Authority noted that there was no specific evidence before it of attacks by the Shia or Sunni militia against those selling or hiring Western or adult films. The Authority noted, however, that there was material before the delegate that indicated that the militias have targeted people, such as alcohol sellers, who are involved in providing goods or services considered to be “immoral” in violent attacks. The Authority noted that whilst the applicant claimed militias searched his shop, neither he, nor anyone else was harmed by them as a result of hiring or selling adult or Western movies, other than his claims relating to the footage of him with N.
The Authority concluded that it did not accept that the applicant was, or is, of any adverse interest to any group or person on the basis of casual employment at a mobile phone shop that may have sold Western or adult movies. Further, there was no evidence before the Authority to suggest that the applicant would return to work at the place he claimed to have worked in in 2012. The Authority noted that the applicant now has an information technology qualification from the studies he was undertaking in Iraq prior to his departure.
At paragraphs 21 through to 28 of its decision, the Authority consider the applicant’s claims regarding his sharing of information with the Mahdi Army. At paragraph 28 of its decision, the Authority concluded that, in view of the lack of evidence to support the applicant’s claims, and his vague evidence regarding his claim to sharing of information with Mahdi Army, it did not accept that the applicant downloaded information from mobile phones of members of the Iraqi security forces and shared this with any Shia militia group. Accordingly, the Authority concluded that the applicant was not of any adverse interest to Iraqi security forces on this basis.
Paragraphs 29 through to 41 of the Authority’s decision deal with consideration of the applicant’s claimed relationship with N. The Authority noted that the applicant’s account of the events leading to his departure from Iraq have varied over time. The Authority noted that there was significant inconsistencies, not only between the briefer information provided by the applicant in his entry interview and the more detailed claims made later, but also between the applicant’s written application and the information provided at his protection interview. The Authority found the applicant’s evidence to be implausible in several key respects which led it to have significant reservations regarding the veracity of the applicant’s claims.
At paragraph 30 of its decision, the Authority found that the applicant was inconsistent in relation to how he met N. This varied from a girl who he had met whilst working in the shop through to being someone he had known since they were children.
At paragraph 31 of its decision, the Authority found it implausible that the applicant would have engaged in sexual relations with N, when she was accompanied by her sister, given that he claimed in his protection interview that N’s sister was a member of a militia group and that her family were also associated with the militia group.
At paragraph 32 of its decision, the Authority noted that the applicant did not mention N’s claimed death at the hands of the militia and her family when asked why he left Iraq in his entry interview. The applicant claimed that he left because he had an affair with a woman from another tribe and that the woman’s family and tribe had threatened him. When asked about the variations in his account of his reasons for leaving Iraq during his protection interview, the applicant said that he had little opportunity provide details of his claims in the entry interview.
At paragraph 33 of its decision, the Authority noted that it had reviewed the recording of the applicant’s entry interview. The Authority acknowledged that the applicant had been asked to limit his response to a brief one or two sentence summary. The Authority concluded that it did not accept that the way the interview was conducted prevented the applicant from understanding the questions asked or, prevented the applicant from providing accurate answers during his entry interview.
At paragraph 34 of its decision, the Authority noted that in his protection application and interview, the applicant claimed that the trigger for his departure from Iraq was a friend’s advice to him that N had been killed and that his shop had been destroyed and that people were searching for him so they could execute him. Despite the applicant’s limited opportunity to explain his reasons for leaving Iraq at the entry interview, the Authority found it implausible that the applicant would not have mentioned N’s death or that he would have described his reasons for his departure as he did, if N had in fact been killed and the other events of that day had transpired as claimed.
The applicant’s failure to mention N’s death in his entry interview, and the inconsistency in the way he described coming to know N, and the implausibility of the claimed manner in which they conducted their sexual relationship, lead the Authority to question whether the applicant had any relationship with a woman called N.
At paragraphs 36 through to 38 of its decision, the Authority highlighted a number of other inconsistencies between the applicant’s entry interview, his protection application and his protection interview. For example, at paragraph 38 of its decision, the Authority noted that the applicant did not mention in his protection application that his girlfriend’s sister was a member of a militia group, that she had a relationship with a member of a militia group or that she shared a video of the applicant and N during sex with the police as claimed by the applicant in his protection interview. The Authority was of the view that information about N’s sister’s claimed membership of the Shia militia group during the protection interview added a new and fundamentally different element to the applicant’s claims regarding N’s sister. The Authority did not accept that these claims could be explained as a mere elaboration of the applicant’s earlier claims. Accordingly, at paragraph 41 of its decision, the Authority did not accept that the applicant was of any adverse interest to a militia group, the family of N or other security authorities. The Authority did not accept that there was a warrant for the applicant’s arrest in connection with N’s death, nor for the claimed video of N and the applicant.
Paragraphs 42 through to 46 of the Authority’s decision deal with the applicant’s claims to be of adverse interest to a militia group and or the Iraqi security forces. As the Authority rejected the applicant’s claim to have been filmed having sex with N, the Authority concluded that the applicant was not of any adverse interest to any militia group on the basis that he had, all was believed to have, filmed women during sex for any reason.
At paragraph 47 of its decision, the Authority rejected the applicant’s claims that his family had been required to move to Baghdad as a result of the events claimed by him. The Authority considered that it was highly probable that the applicant’s family continues to reside in their home province.
GROUNDS OF JUDICIAL REVIEW
The sole ground of judicial review now relied upon is contained in an Amended Initiating Application filed with the Court on 28 June2021. Leave was granted to rely upon this ground. The sole ground of judicial review is as follows verbatim:
Ground One
The IAA made a decision so unreasonable that no reasonable person would have made it.
Particulars
By failing to give a genuine and realistic consideration of the Applicant’s claims and engaging in a “quest to disbelieve the Applicant”, the IAA drew adverse credibility findings against the Applicant which were so unreasonable that no reasonable person would have made them by:
•Giving under due weight to omissions made by the Applicant in an Entry Interview, where the Applicant was told to limit his answers to one sentence.
•Misconceiving the Applicant’s claims or Country Information that was favourable to the Applicant’s claims;
•Characterising the Applicant’s answers as “inconsistencies” when they could equally be regarded as co-extensive.
•Giving undue weight to the absence of corroborative evidence led by the Applicant having fled his home country in short notice.
•Damning the applicant’s credit by reference to a false factual premise; and
•Failing to consider exercising its discretion pursuant to s 473DC of the Migration Act 1958 to afford the Applicant an opportunity for a face to face hearing.
THE APPLICANT’S SUBMISSIONS
Counsel for the applicant relied upon the written submissions provided to the Court and did not seek to elaborate further on them during the course of the hearing. The Court notes that the written submissions vary from the particulars provided in the Amended Initiating Application and appear to blend the various complaints into three main areas rather than methodically go through and address each of the six particulars sequentially.
Counsel for the applicant submitted that it has been held that there may be cases in which it is legally unreasonable not to consider the discretionary power conferred by s 473DC of the Migration Act 1958 (Cth) (“the Act”) to call an applicant for interview: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (“DGZ16”). In that case, the Authority had reassessed the same material that had been considered by the delegate and made different findings of fact in relation to the same issues.
Given the applicant’s screening interview was given primacy in the Authority’s reasons for rejecting his later evidence, caution should be exercised in dealing with the entry interview. Counsel for the applicant submitted that the Authority needed to consider the totality of the evidence and to consider the reasons why inconsistent evidence might have been given other than that the relevant person was not telling the truth: see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [115].
Counsel for the applicant submitted that where an applicant gives different accounts and offers an explanation for why that is so, the explanation must be seriously and properly considered. It may be that it is unpersuasive, but, in another case, it might count decisively against an adverse credibility finding or the rejection of a particular account in favour of another.
In relation to the first issue, being the employment of the applicant and the hiring or sale of films, it was submitted on behalf of the applicant, firstly, that the delegate accepted that the applicant owned and operated a shop that sold DVDs, music, mobile phones and did software upgrades. The delegate accepted that the applicant started the shop in 2010 which he would operate when he was not studying and that “it was possible that the applicant sold Western movies which may have included adult movies”.
Secondly, the delegate found fundamental flaws in the record of the entry interview. Despite the original documents of the applicant’s citizenship and a national ID card being cited by the Departmental Officer and that “no obvious concerns [were] noted”, the entry interview recorded a different name for the applicant and a different date of birth. Further concerns were also noted in the decision by the delegate, who noted that, “whilst I acknowledge that the interviewing officer stated that he did not want the applicant’s full story”. Counsel for the applicant submitted that these concerns about the accuracy of the record of the entry interview were sidestepped by the Authority in making adverse credibility findings against the applicant. It was further submitted on behalf of the applicant that the Authority did so by engaging in a “quest to disbelieve the applicant”, giving disproportionate weight to a series of alleged inconsistencies that can be equally read as co-extensive.
It was submitted on behalf of the applicant that the arrival interview was brief, and was not designed to explore the applicant’s claim for protection in detail. Further, the interviewing officer asked the applicant to limit his response to a brief one or two sentence summary. Further, the applicant claimed that he was afraid at his entry interview and did not feel that it was a safe environment. Counsel for the applicant submitted that nothing turned on whether the applicant “owned” a store, stall or kiosk or whether he was employed at someone else’s store. It was submitted that the applicant claimed that he sold bootleg/pirated videos as, effectively, a “side hustle”. It was submitted there was a large scale trade in pirated video material. The Authority accepted that it was plausible that the applicant might have sold or hired Western and/or adult movies. The applicant’s account of having sold adult films at a telephone store and facing threatened harm as a consequence of his detection by a militia survives an adverse credibility finding. The applicant therefore had no motive to lie about owning the store, with the issue of ownership of the store being peripheral to his claims.
It was submitted on behalf of the applicant that the Authority “surgically removed” a reference made by the delegate to country information that reported that the Shia militia groups and the Mahdi Army had a historical reputation for combating “al Munkar”, which are activities deemed counter to Islam, including consuming alcohol and engaging in extramarital sex. It was submitted that it was irrational to believe that religious armed militia would target the consumption of alcohol and extramarital sex and not look unfavourably on the distribution of pornography.
In relation to the issue of being an informant for the Mahdi Army, it was submitted on behalf of the applicant that, having found that the applicant, in the course of his work, would have had access to the phones of members of the Iraqi security forces, it was reasonable to assume that there was a real chance that the applicant would be targeted by the Shia militia. The Authority noted that the applicant’s answers in this regard were vague and had no corroboration.
Counsel for the applicant submitted that the Authority mischaracterised the applicant’s evidence in assuming that he was involved in the practice of collaborating with the Mahdi Army to recover photos and videos extracted by mobile phones, as opposed to the applicant’s evidence, in which he received demands from the Mahdi Army, but was reluctant. It was submitted that the demands from the Mahdi army were “covert operations”, possibly “fishing expeditions” to test the applicant’s loyalty.
Counsel for the applicant submitted that the various claims and descriptions of the relationship of the applicant with N can be read as coextensive, rather than inconsistent. In the applicant’s entry interview, he stated “I had an affair with a girl from another tribe and her family and the whole tribe threatened me”. In the applicant’s statement of claims, he asserted “I had a sexual relationship with a girl called N who used to come to my shop with her sister”. In the applicant’s interview, the applicant is quoted as describing N as a neighbour he had known since childhood. Counsel for the applicant submitted that, given the limitations imposed on the applicant in the entry interview, his restriction of his answers to a single sentence is an explanation as to why the accounts differ.
Counsel for the applicant suggests that the reason N and her sister came to the applicant’s shop was due to the prior connection as they went to the same school and came from the same village. The Court notes that, at this point, the possibilities put forward by Counsel in his submissions do not have any evidentiary basis from within the material that was before either the delegate or the Authority. The submissions rely upon evidence from the bar table.
In a similar manner, counsel for the applicant submitted that the Authority’s reasoning is illogical as the relationship between the applicant and N was predicated on the sister not finding out about it and not informing her family and certainly not filming it. It was submitted that young people have sexual and intimate relationships. It was submitted that from the story of Shakespeare’s “Romeo and Juliet”, the story of young love found by respective son and daughter revival groupings or factions is not without precedent.
In relation to the assertion that the applicant failed to mention the killing of N in his entry interview, it was submitted that the applicant was not given an opportunity to give a complete exposition of his claims. It was submitted on behalf of the applicant that the Authority must characterise the applicant’s claims, stating at paragraph 34 of the Decision Record, that the applicant stated in his protection application “the applicant claims that the trigger for his departure from Iraq was his friend’s advice that N had been killed”. Counsel for the applicant submitted that this is simply not correct. It was submitted on behalf of the applicant that the applicant did not claim that he was told about the death of N by the same friend who informed him of the raid of his shop – only that he learned about these events at approximately the same time. In the applicant’s written statement, the applicant does not profess to have witnessed the killing of N, only that he was informed about it. Counsel for the applicant submitted that the killing of N appears less consequential in the applicant’s decision to leave Iraq than the raid on his shop and allegations by the religious police that he was involved in “secretly filming himself having sexual affairs with girls” and other crimes against Islam. It was submitted on behalf of the applicant that this was consistent with the account given by the applicant that the relationship with N was not exclusive and that she had another partner in the Mahdi Army.
It was further submitted that the reference at paragraph 39 of the Decision Record, in which the applicant claimed that he attended college the next day after he was warned that the Shia militia had obtained a video of him and were looking for him to execute him fundamentally misconceived the nature of the threat and the actual response taken by the applicant. Counsel for the applicant submitted that, beyond the fact that the militia did not know where the applicant was studying, would have been unfamiliar with the campus and that he would have had many friends on campus to support him. Counsel further noted that campuses of universities and colleges around the world have been under the jurisdiction of their own law enforcement agencies, that police have to take permission to enter a campus, that campuses have been bastions for intellectual freedom, including religious and social freedom and that one could assume that this would particularly apply to a religious militia who have no power to enter the campus.
The Court notes, again, that the factual basis for this last submission is simply without evidential foundation from material that was before either the delegate or the Authority.
In conclusion, Counsel for the applicant submitted that, due to the significance attached by the Authority to the protection interview statement as compared to the entry interview, it was legally unreasonable for the Authority not to consider whether to invite the applicant to give new information in that respect. The applicant otherwise adopts the reasoning of the majority in DPI17 v Minister for Home Affairs [2019] FCAFC 43.
THE FIRST RESPONDENT’S SUBMISSIONS
The sole ground now relied upon by the applicant claims that the findings of the Authority are legally unreasonable and that the Authority undertook a “quest to disbelieve” the applicant. It was submitted that legal unreasonableness may occur where there is “no evident and intelligible justification” to the findings arrived at: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) at [76] or, where a decision has qualities that have been described as “capricious, irrational or obviously disproportionate”: see Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [65].
In relation to the first particular, the applicant alleges that the Authority gave weight to the failure of the applicant to mention N’s killing at the entry interview, and submits that he was “simply not given an opportunity to given the complete exposition” at that time. Counsel for the first respondent submitted that the contention is baseless as it was open to the Authority to give weight to the applicant’s omission. The Authority did not adopt the kind of incautious approach identified in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80. The first respondent notes that the Authority acknowledged the inherent limitations in entry interviews and did not place undue reliance on the omission, nor did it rely solely on the omission in any respect.
In relation to the second contention, where the applicant alleges that the Authority “surgically removed” the phrase “engaging in extramarital sex” from a reference to country information, the first respondent asserts that this submission by the applicant is is telling because it would be “simply irrational” to believe that the militia would target those who engage in extramarital sex but not those “like the applicant” associated with pornography. This contention, the first respondent submitted, misunderstands the Authority’s reasons. The Authority noted, at paragraph 18 of its decision, that there was “no specific information before me of attacks by Shia militia, Sunni militia or any other group or individuals, on those selling or hiring Western or adult films”. In the absence of information that the militia had a practice of targeting the sale of adult films, the Authority declined to accept that the applicant had been targeted for that reason. The Authority made no finding with regard to the position, favourable or otherwise, of religious militia on pornography.
In relation to the third contention, the applicant alleges that a number of the inconsistencies identified by the Authority should instead have been read as “coextensive”. The first respondent submitted that, properly understood, this is an invitation for the Court to engage in impermissible merits review.
The applicant submitted that “nothing significant” turned on whether the applicant either owned or worked at the shop. The first respondent contends that is a submission on the merits. It was submitted by the first respondent that the Authority properly found that there were “significant differences” in the evidence which led it to determine that the applicant was only employed as casual at the shop.
The applicant contends that the description of his relationship with N was not inconsistent and his answers should be read as being “coextensive”. First, the applicant submits that “one could infer” that there were a number of reasons for some of the inconsistencies raised. The reasons listed by the applicant were not articulated in his evidence. The attempt to raise them now is no more than an effort to retrospectively recast those claims made before the Authority. The applicant also suggests that the Authority’s reasoning was illogical when it found that the applicant’s account of having sex with N was “implausible” given that they were apparently accompanied by N’s sister. This again, the first respondent submitted, was a veiled attempt to seek merits review. The applicant claimed that “N used to come into his shop with her sister and they would go to different places for sex”. There is no basis to suggest that the Authority’s findings were unreasonable or illogical.
The applicant also contends that the Authority mischaracterised the applicant’s claim in stating that he claimed that the trigger for his departure from Iraq was advice from a friend that N had been killed on 29 August 2012. The applicant contends that this was plainly incorrect in the light of his written statement. In relation to this, the first respondent submitted that the Authority’s findings were open to it. First, the Authority noted that the applicant reiterated the claim at his protection interview and it is entirely plausible that the applicant clarified that he did receive advice from a friend on that date. The applicant has not produced a transcript of the protection interview to assert otherwise. Second, nothing in the Authority’s findings is inconsistent with the applicant’s written statement. Third, the relevance of the statement was that the applicant knew about N’s death and it was implausible that he would not have mentioned that fact at his entry interview.
Finally, the applicant raises the Authority’s finding at paragraph 39 regarding his attendance at college as usual, after he was told that the militia were looking for him. The Authority found that it would be difficult to accept that the applicant would simply attend college the day after he was apparently informed that the militia were looking for him with the intention of killing him. Counsel for the first respondent submitted that this finding was logical and open to the Authority on the basis of the evidence that was before it.
In respect of the fourth contention, the applicant asserts that the Authority was legally unreasonable by relying upon the applicant’s lack of corroborative evidence on his role as a Mahdi Army informant. The Authority found that the applicant could only explain “in vague terms” what occurred when the militia visited his shop. There was no reason why the applicant could not provide clear details of what actually happened at the shop given that, on his own evidence, the militia left their phones with him for installation and software repair. The first respondent submits that it is also wrong to suggest that the Authority failed to appreciate that the applicant was a “reluctant” informant, when the Authority plainly did. The Authority referred to him as a “forced” informant at paragraphs 12 and 21 of its decision.
In relation to the last contention, being that the Authority acted unreasonably by not inviting the applicant, pursuant to s473DC of the Act, for interview, the first respondent submitted that this was a discretionary issue for which the Authority is not required to give reasons. The applicant’s credibility was a live issue before the delegate. Despite this, notwithstanding the applicant made a submission to the Authority, the applicant did not, at any point of time, request an opportunity to explain the inconsistencies in his evidence to the Authority. Further, this was not a matter where the delegate or the Authority’s assessment of the applicant’s creditability was based on the applicant’s demeanour during the arrival or protection interview:
see ABT17 v Minister for Immigration and Border Protection (2020) 383 ALR 407 at [4] and [23]-[25]. The Authority was not required to consider the discretion in s 473DC of the Act merely because the Authority was minded to form a view about an issue or evidence that deviated from the delegate’s findings. The Authority was not required to invite the applicant to respond to its reservations about the case: see DGZ16.
CONSIDERATION
The applicant relies upon a single ground of legal unreasonableness supported by six particulars. It is well settled that the test for legal unreasonableness is “stringent” and will only arise in rare cases: see Li at [30] and [113]. The consideration of such a claim is invariably fact dependant and requires a careful examination of the evidence and reasons: see Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 at [38].
If logical or rational minds might adopt different reasoning or might differ in any decision or finding to be made on the evidence on which the decision is based, then a reviewing Court cannot find that a decision is illogical or irrational or unreasonable because one conclusion has been preferred to another conclusion: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131].
Counsel for the applicant predicated the grounds of judicial review with the statement that the Authority engaged in a “quest to disbelieve”. Notwithstanding the use of this term, no allegation of either actual or perceived bias was agitated. In the Court’s view, if such a term is to be used, it should be supported by evidence of bias, as that is what this ground clearly alleges. Legal unreasonableness does not equate to bias in the Court’s view.
As has been noted above, in relation to the applicant’s submissions, some of the assertions made by the applicant’s counsel consist almost solely of evidence contained in written submissions. This includes speculation about “covert operations” to test the applicant’s loyalty by the Mahdi army. It further included speculative assertions about the security status of universities in Iraq and the jurisdiction of the Iraqi Security forces on university campuses. Speculation is not a proper basis to ground an allegation of legal unreasonableness. This Court is not in a position to undertake merits review, which, in the Court’s view, is implicit in the nature of some of the assertions put forward.
In relation to the first particular, the Authority explicitly cautioned itself as to the limitations inherent within entry interviews at paragraph 33 of its decision. The Authority also reviewed the recording of that interview. Having done so, the Authority went on to then make adverse credit findings against the claims of the applicant. For example, the Authority found that, even in the limited circumstances of the entry interview, it was implausible that the applicant would not have mentioned the death of N. The Court is satisfied that this finding was open to the Authority to make on the evidence that was before it. There is no legal unreasonableness in the finding.
The second contention is an allegation that the Authority “surgically removed” references to the applicant “engaging in extramarital sex”. The implication is that the Authority was somehow being dishonest in its quotation of relevant country information. However, the Authority was not discussing, at this point of time, the relationship of the applicant with N, rather, it was considering claims that the applicant would be at risk from the militias because he sold or hired out Western and adult films. The Authority correctly found that there was no specific country information before it that indicated that militias targeted those who engaged in such activities. There is no legal unreasonableness in this finding.
The third contention complains that the Authority characterised the applicant’s answers as inconsistencies when they could equally be regarded as “coextensive”. In and of itself, this does not reveal any inconsistency. If a factual finding can reasonably be arrived at on the evidence, and is preferred to another finding which may favour the applicant, no legal unreasonableness exists. In terms of the particular issues submitted, the Court is of the view that it was open to the Authority to find that there were significant differences in the evidence of the applicant as to whether he simply worked at, or owned, the shop. The Authority was entitled to prefer one interpretation over the other.
In relation to the complaint that the applicant was not consistent in his answers as regards to his relationship with N, counsel for the applicant goes no further than suggesting that one could infer a number of reasons for the inconsistencies. Secondly, the applicant contends that the Authority’s reasoning was illogical in that it found that the applicant’s account of having sex with N was implausible. The reasons articulated by the applicant in written submissions seek the Court to undertake merits review, rather than reviewing the evidence as to whether or not the findings are subject to legal unreasonableness. These findings were open to the Authority based on the evidence that was before it. Again, the fact that the alternative suggested by the applicant may have not been accepted by the Authority is not evidence of legal unreasonableness.
The fourth and fifth claims are that the Authority was not entitled to give weight, where it found that there had been inconsistencies, in the absence of any corroborative evidence led by the applicant, as to why he left his home country on short notice. Counsel for the applicant complains of a mischaracterisation of the applicant’s claims concerning the trigger for his departure from Iraq. This is coupled with the finding that the applicant’s attendance at university was “as usual” after he was told that the militia were looking for him. The finding by the Authority that it was difficult to believe that the applicant would attend university after being told of the death of N was open to it. The suggestion by Counsel for the applicant that the applicant was somehow safe on campus for the reasons outlined is both highly speculative and not based on any probative evidence before the Authority as to the conditions in relation to security of university campuses in Iraq. The Court agrees with the submission of the first respondent that the applicant now seeks to retrospectively recast his position and engage the Court in merits review. Each of the factual findings of the Authority was reasonably open to it on the evidence. This included the applicant’s vagueness as to what occurred when the militia visited his shop, his relationship with N, his claims in relation to being an informant to the militia and the circumstances of him leaving Iraq. The Court is satisfied that the inconsistencies relied upon by the Authority were open to it and it was entitled, having undertaken a careful review of the entry interview and the applicant’s subsequent claims, that it was inconsistent. No false factual premise exists.
Particular six claims a failure to exercise a discretion pursuant to s 473DC of the Act to enable the applicant to have a face to face hearing. The contention ignores the fact that “fast track” reviews conducted pursuant Part 7AA of the Act are severely restricted in terms of the information to be considered and the manner in which they are conducted. Section 473DB of the Act states that “fast track” reviews are to be conducted on the papers without accepting or requesting new information (see s 473DB(1)(a)) and without interviewing the referred applicant (see s 473DB(1)(b)). New information may only be considered if it meets the restrictive tests set out in s 473DD of the Act, including that there are exceptional circumstances such as to justify considering it (see s 473DD(a)).
The power to invite a review applicant for an interview under s 473DC of the Act is also very limited. The power is discretionary and the Authority is under no duty to “get” information, even if requested to do so by the applicant, including interviewing the applicant.
As pointed out by counsel for the first respondent, the evidence before the Authority was the same as that before the delegate. This is not a case where there was new information before the Authority which, as a matter of reasonableness, required the applicant to be given the opportunity to comment upon it, such as new country information which would indicate the opportunity for the applicant to safely relocate within his country of origin, and that option was not considered by the delegate.
This matter simply involved a reconsideration by the Authority of the credibility of the applicant. The Authority was entitled to take into account any inconsistencies in the applicant’s evidence that did not depart substantially from the delegates. Further, the applicant was on notice from the delegate’s decision that his credibility was an issue. The Court agrees that the reliance on DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [123] is misplaced. That case involved material that was not considered by the delegate. In this case, the Authority simply considered the same material and formed a different view on it. There was no requirement in these circumstances to invite the applicant for interview. Accordingly, particular six has no merit.
None of the allegations relied upon by the applicant give rise to a finding which meets the stringent test that the factual findings of the Authority were legally unreasonable.
CONCLUSION
The application is dismissed.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 16 July 2021
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