FLI18 v Minister for Home Affairs

[2019] FCCA 3414

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLI18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3414

Catchwords:
MIGRATION – Whether the Authority erred in not considering a claim put by the Applicant – whether the Authority failed to consider how an Applicant would travel to their home province – whether the Delegate failed to refer information that was before it – the providence of information passed on from the Delegate – whether the Authority erred in not being satisfied that there were exceptional circumstances to include the new information – whether that new information would have been material – whether the Authority failed to consider the applicant’s family circumstances – whether the Authority made findings that were unreasonable or without logically probative material.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H(1), 36(2)(a), 65, 473CB, 473DB(1), 473DC(1), 473DD(a), 473DD(b)(i), 473DD(b)(ii), 473DD, 473FB(5), 476(1), Part 7AA

Cases cited:

AHM18 v Minister for Home Affairs & Anor [2018] FCCA 2016
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
EMJ17 v. Minister for Immigration and Border Protection [2018] FCCA 1462
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 174

First Applicant: FLI18

Second Applicant: FLJ18

Third Applicant: FLK18

Fourth Applicant: FLL18

Fifth Applicant: FLM18

Sixth Applicant: FLN18

Seventh Applicant: FLO18

Eighth Applicant: FLP18

Ninth Applicant: FLQ18

Tenth Applicant: FLR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 3220 of 2018

Judgment of: Judge McNab

Hearing date: 2 August 2019

Date of Last Submission: 2 August 2019

Delivered at: Melbourne

Delivered on: 29 November 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 17 October 2018 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3220 of 2018

FLI18

First Applicant

FLJ18

Second Applicant

FLK18

Third Applicant

FLL18

Fourth Applicant

FLM18

Fifth Applicant

FLN18

Sixth Applicant

FLO18

Seventh Applicant

FLP18

Eighth Applicant

FLQ18

Ninth Applicant

FLR18

Tenth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application dated 17 October 2018, the applicants seek judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 14 September 2018. The Authority’s decision affirmed a decision of a delegate (‘the Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise visa (XE-790) (‘the visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (‘the Act’).

2. The matter was abridged, and was heard on 2 August 2019.

3. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The first applicant (‘First Applicant’) is the wife of the second applicant (‘Second Applicant’). They are the parents of 8 children, being the remaining 8 applicants in this matter (collectively, ‘the applicants’).

2. The applicants are Iraqi citizens. The First and Second Applicants and their five oldest children were born in Iraq and arrived in Australia on 14 July 2013. The youngest 3 children were born in Australia.

3. On 2 September 2016, the Second Applicant was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise Visa (subclass 790) (‘SHEV visa’). The deadline for this application was 1 October 2017.

4. The applicants submitted their application on 30 May 2017.

5. On 8 December 2017, the First and Second Applicants both provided a non-exhaustive summary of claims for protection.

6. On 23 January 2018, the Delegate invited the First and Second Applicant to attend an interview to discuss their visa applications and their claims.

7. On 14 February 2018, the applicants’ solicitor confirms that she will accompany the First and Second Applicants to their interviews.

8. It is inferred from an email from the Department of Home Affairs (‘the Department’) concerning the date of interview for the Second Respondent that the First and Second Applicants were interviewed on 16 February 2018. I note that the Court Book did not contain any primary information regarding the interview or attendance at the interview.

9. On 6 March 2018, the applicants’ migration agent sent a letter to the Department containing post-interview submissions and documentary evidence.

10. On 6 August 2018, the Delegate refused to grant the SHEV visa.

11. On 9 August 2018, the matter was referred to the Authority.

12. On 30 August 2018, the applicants provided submissions to the Authority. These submissions provided, as characterised by the Authority’s decision at [4] to [10], information that concerned criminal kidnapping in Iraq, human right practices in Iraq, media reports regarding the Second Applicant and material from the television show ‘A Current Affair’.

13. On 14 September 2018, the Authority affirmed the Delegate’s decision to refuse to grant the SHEV visa.

Applicant’s claims to fear persecution

1. The applicants’ submissions from [5] to [18] make reference, broadly, to the Second Applicant’s claims for protection:

   The Second Applicant was a police officer in Iraq, and trained with Australian forces.

   In 2006 or 2007, the Second Applicant had difficulty remembering the details ten or eleven years after the event, but he was kidnapped and held for 11 days until he was released after his family paid a ransom of $90,000. He was tortured, and shot in the leg. He believed that the people who did this were from one of the militia groups, and was targeted because of his work as a police officer for the Iraqi government and for the American and allied forces.

   This caused the Second Applicant to be in constant fear for his life.

   The Second Applicant received threats including threats at his home.

   In 2005 or 2007, the Second Applicant’s father was killed. He was a tribal leader, working with the Americans at Baghdad airport, and was in charge of people cooking there. He was shot by a group of people as he was leaving the airport in his car.

   The Second Applicant’s family were well known in Baghdad, members in the Ministries of Defence and Interior, and security guards for prominent persons. His father was a tribal leader, and a very well-known personality mentioned in literature about Iraqi tribes. The Second Applicant’s brother later assumed leadership of the tribe.

   After his kidnap and release, the Second Applicant changed his work to the “civil side”.

   One of his brothers and his brother’s son were killed in Baghdad. Another brother involved in giving protection to prominent persons was injured in the Mosul conflict, and was later killed in fighting against the Islamic State.

   The Second Applicant was afraid of a prominent Sunni tribe, and in particular was afraid because of a sentence of death passed against him, and a false criminal charge. This was because of his involvement in a raid on a residence of that tribe, an operation by American troops.

   The Second Applicant was afraid of harm because of his religion as a Shia, and also in the generalized violence.

   There was evidence of general violence including the abduction and killings associated with militias, and having “perceived Western” or “pro-American views” has been identified as a risk factor for being “threatened, kidnapped, killed or otherwise intimidated with impunity...”.

   The Second Applicant was afraid for his family, and so “took precautions to hide his family and move frequently.” One area he spent time was one of the southern provinces.

   The Second Applicant was afraid of disproportionate harm as a deserter from the Iraqi police.

   The Second Applicant was convicted for his leading role in an extensive fraudulent scheme in Australia.

   (citations omitted)

Authority’s decision

1. On 14 September 2018, the Authority affirmed the Delegate’s decision to refuse to grant the SHEV visa.

New information

1. The Authority did not consider the ‘new information’ provided by the submissions of 30 August 2018. In respect of information about criminal kidnapping, the Authority stated at [5] of the decision record that the information was not provided in the correct format (the information was provided in hyperlinks rather than copies of the article as requested by the Authority’s practice note), there was no explanation as to why it had not been provided to the Delegate, or why it may be considered credible personal information. The Authority did not, therefore, accept the information.

2. The Authority did not accept media articles or Facebook materials that were also supplied by the submission of 30 August 2018. The Authority, at [8] of the decision record, restated that the materials were not provided in the correct format, and that ‘there is no explanation why this was not previously provided or why it may be considered credible personal information which was not previously known and had it been known, may have affected consideration of the claims’. The Authority further noted that such information may have little probative value as it is unclear whether the information has been shared in Iraq. The Authority was not satisfied there were exceptional circumstances justifying the admission of the documents.

3. The Authority similarly did not accept the ‘A Current Affair’ material, noting that while it contained a photo, the quoted paragraph did not identify the Second Applicant or identify his role within the ‘crime gang’. The Authority restated that ‘there is no explanation why this information could not have been provided to the delegate or it is credible personal information which was not previously known and had it been known may have affected the consideration of the claims’.[1]

   [1] Authority’s decision, dated 14 September 2018, [9].

4. The Authority characterised a claim, contained in the submissions of 30 August 2018, that the Second Applicant would be targeted by criminal gangs to ‘gain revenge for the Iraqis who have been charged with criminal offences in Australia after being inveigled by the [Second Applicant] to participate in a fraud’ as new information.[2] The Authority noted that the charge sheet supplied in the 30 August 2018 submissions does not suggest that other participants of the fraud were not willing participants. The Authority was not satisfied that there were   exceptional circumstances to justify considering this new claim – particularly as this information occurred prior to the SHEV hearing, the applicants were represented, and that the applicants were on notice that they may not have the option to provide further information at a later point.

   [2] Authority’s decision, dated 14 September 2018, [10].

Factual findings

1. The Authority found that the applicants are all citizens of Iraq.

2. The Authority noted discrepancies between the First and Second Applicant’s evidence as it related to their movements in Iraq, and then their movements from Iraq to Australia. The Authority, from [19] to [22] of the decision record, did not accept that the First or Second Applicant’s mental health issues justified the extent of their discrepancies. The Authority made other observations, particularly about the Second Applicant, that lead the Authority to place weight upon these inconsistencies.

3. The Authority accepted that the Second Applicant’s father was a tribal leader and that he was killed in his car by a group of men. The Authority did not accept that his father was ‘personally targeted’.[3] Similarly, the Authority accepted that the Second Applicant’s brother, his brother’s son and his cousin were killed in Baghdad but that they were not ‘personally targeted’.[4]

   [3] Authority’s decision, dated 14 September 2018, [23].

   [4] Authority’s decision, dated 14 September 2018, [24].

4. The Authority accepted that the Second Applicant had worked as a police officer for the Ministry of Interior from 2005 to 2006 and then for the Ministry of Health until 2008/09. The Authority noted that the Second Applicant had an identity card from the Ministry of Health issued 1 August 2006.

5. The Authority did not accept the Second Applicant’s evidence in relation to threats made towards him and his claim to have been kidnapped for multiple days. The Authority noted the Second Applicant claimed he was kidnapped during his service as a police officer, being either 3 August 2006 or 3 November 2006. The Authority noted that this claim was inconsistent with the Second Applicant’s Ministry of Health card that indicates the Second Applicant began work on 1 August 2006. The Authority also noted that the police report provided by the Second Applicant did not mention the Second Applicant had been shot in the leg (as claimed) and noted that the Second Applicant had been tortured, albeit in a different area of his body.

6. The Authority also noted inconsistencies in the Second Applicant’s account as to the ransom payment purportedly made to free him from his captors. The Authority was not satisfied that the length in time since the event happened explains the Second Applicant’s lack of clarity on the issue.

7. The Authority, at [34] to [42] of the decision record, considered the Second Applicant’s claims that a false legal case has been filed against him by the al Hashimi family. The Authority did not accept this claim for a multitude of reasons, including, amongst other reasons, that the notice of arrest provided by the applicants listed a different crime.

8. The Authority accepted that the Second Applicant was named in relation to an insurance scam, and that it was reported he received significant sums of money. Due to this publicity, the Authority also accepted that the Iraqi ex-patriate community may be aware of the Second Applicant. The Authority then stated at [43] of the decision record:

   However, there is no credible evidence before me to suggest that this is widely reported in Iraq either in English or Arabic. I do not accept the representative’s assertion that this information would be shared with security forces, militia connected with those forces and criminal gangs in Iraq. Even [if] this is the case, the information as reported does not suggest that Applicant 2 was successful in his fraud attempt, [that] he actually pocked any amount of money or the family is rich as a result.

Refugee assessment

1. The Authority, being satisfied that the applicants would return to the southern provinces of Iraq, did not consider the issue of relocation. After considering country information, the Authority found that the area where the applicants had lived previously was ‘a safe province with little to no recorded instances of terror attacks’.[5] The Authority further noted that returnees from the West were not imputed with anti-government or anti-Islamic political opinion.

   [5] Authority’s decision, dated 14 September 2018, [50].

2. The Authority stated that ‘I am satisfied that [the applicants] will be able to safely return to [a southern province] by travelling via Baghdad airport and [the southern province] airport’.[6]

   [6] Authority’s decision, dated 14 September 2018, [56].

3. The Authority at [57] to [60] of the decision record was not satisfied that:

   a)the First and Second Applicant’s health issues could not be met in Iraq;

   b)the family could not establish themselves or their capacity to subsist would be threatened; or

   c)the children’s educations needs could not be met or that the children have a real chance of being harmed at school.

4. The Authority concluded that the applicants did not meet the requirements of the definition of refugee in s 5H(1) and, therefore, are not owed protection under s 36(2)(a).

Grounds of review

1. The applicants’ grounds of review are:

   l. The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.

   Particulars

   (a) The Authority failed to have regard to information before it in that it failed to consider a claim squarely raised by the material before the Authority. At [54] of its reasons the Authority states that: "Applicant 2 does not claim to have faced any threat after he left the Ministry of health in 2008/2009". This finding is incorrect, as evidenced by the Immi Fast Track decision record where the delegate notes on page 24 "Given the applicant's internally inconsistent testimony, lack of details and failure to previously refer to this alleged threat, I do not accept that the applicant was threatened in Maysan around 2012 as claimed."

   (b) The Authority failed to have regard to information before it in that it failed to properly consider the issue of relocation for the applicants. In the Immi Fast Track decision record the delegate found that the area of origin for the applicants was both Baghdad and Maysan.

   The Authority at [49] of its reasons has only considered Maysan as. the applicants' area of origin and has thus failed to properly conduct an assessment of the issue of relocation for the applicants; failing to consider whether the applicants could safely return to Baghdad (as the necessary point of their entry to Iraq) where the delegate found the applicants would face a real chance of serious harm at page 32 of the IMMI Fast Track decision record, and failing to consider whether the applicants have a real chance of serious harm or a real risk of significant harm through all the stages of their journey from Baghdad airport to the southern area where the Authority considered they could safely live.

   (c) The Authority at [8] of its reasons failed to have regard to information before it in that it failed to consider news articles that were before the delegate. The delegate was requested in the Applicant's post-interview submission to Google the name Thamer Ari in order to view the publicity the applicant's criminal proceedings has attracted in the media.

   It is readily apparent that the delegate did perform the Google search as requested as the Authority states at [7] of its reasons that two Daily Telegraph articles are on file and will be considered as they are not new information. The Authority goes on to find that other news articles referred to in the submission to the Authority and that pop up on the same google search page as accessed by the delegate are "new information" and dismisses those articles. There is no explanation as to why there are only those two Daily Telegraph articles on file, as the delegate never addressed the claim related to the Australian criminal offence. The delegate Secretary should have provided that information to the Authority in the referred file or the Authority, recognising that the Delegate had conducted the search, should have considered the other news articles referred to in the applicants' submission to the Authority as they were not ' new information ' .

   In the matter of AHM18 v Minister for Home Affairs & Anor [2018] FCCA 2016 (25 July 2018) at [30] the FCC concluded “I accept the first respondent's submissions that the existence of the URL in the delegate's decision in the present case is sufficient compliance with 2(b) of the Practice Direction 2." In this case the URLs referred to in the applicant^’s applicants' submission to the IAA were before the Delegate, despite the delegate apparently possibly only downloading two of them.

   In the matter of EMJ17 v. Minister for Immigration and Border Protection [2018] FCCA FCA 1462 (27 September 2018) the FCA addressed the failure of the Secretary to provide material documents, the absence of which may result in the inability of the Authority to conduct the review that it is bound to undertake: at [39] to [43]. In this case, the other news articles referred to in the applicants' submission to the Authority were evidence that suggests Applicant 2 has masterminded a series of insurance frauds and which implies he has benefited from those frauds, despite being convicted of one or two of them. That evidence, provided to the Authority in the applicant’s applicants' written submissions, was incorrectly dismissed as new information, and is a failure to take into account relevant information.

   In the alternative. even if, contrary to the Applicants' submissions, the other news articles referred to in the applicants' submission to the Authority were 'new information', the Authority was obliged to consider them as they met the requirements of section 473DD of the Migration Act 1958 and it was unreasonable for the Authority not to exercise its discretion to consider them.

   Further, the Authority at [8] of its reasons finds that other media articles referred to in the applicant’s applicants' written submission to the IAA are not in accordance with the IAA practice direction as only a list of hyperlinks were provided. That is incorrect. The reference to the other media articles does comply with Practice Direction 26 because it extracted relevant facts and provided the source (the relevant URL), not just a list of hyperlinks. In the applicant’s applicants' written submission to the Authority, relevant information was extracted and a single source provided for that information.

   (d) The Authority did not take into account in reviewing the matter the claim that the Second Applicant's family was well known, important, and indeed influential in his tribe, and his father and later his brother were the leaders of his tribe. (CB 565. 569) The Authority did not consider what this prominence may mean for the credibility of the Applicants' claims or for their profile on return to Iraq.

   2. The Authority fell into jurisdictional error by asking the wrong question and/or making an error in law

   Particulars

   (a) At [10] of its reasons the Authority, despite finding that the Charge Sheet submitted is new information that it will not consider, it concludes that there is no evidence to suggest the co-conspirators will seek revenge partly because the Charge Sheet does not suggest the co-conspirators were not willing participants. The Authority has therefore taken into account evidence which, by his own conclusion, should be excluded.

   3. The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.

   Particulars

   (a) The Authority was unreasonable in saying and concluding that:

   "The applicants have consistently claimed that Applicant 2's father was killed... and he worked for the Americans in the Baghdad airport as a chef. At the SHEV interview Applicant 2 stated that his father was a cook and a contractor managing the people doing the cooking and was well known. He was also a tribal leader. He stated that when his father was leaving the airport in his car a group of people shot and killed him. Applicant 2 stated that his father was not threatened before he was killed. In the circumstances as described. I am not satisfied that his father's death was the result of being personally targeted."

   (their emphasis)

Applicants’ submissions

Ground 1 – the Authority fell into jurisdictional error in that it failed to consider a relevant consideration

1. The Applicants note that the Authority must consider each necessary and relevant consideration and integer of claim. The Authority must also consider material questions of fact that are raised by the material before it.

2. The Applicants submit that a failure to do so is a jurisdictional error.

Ground 1(a) – claim to have faced threat after 2008/09

1. The applicants impugn the Authority’s finding at [54] of the decision record: ‘Applicant 2 does not claim to have faced any threat after he left the Ministry of Health in 2008/2009’. The applicants assert that such a finding is not correct, as the Delegate had noted that the Second Applicant had been threatened in southern Iraq in 2012.

2. This error is said to indicate the Authority’s failure to consider a relevant consideration (per the Authority’s obligation under Part 7AA of the Act). It is put that it is a material error as it may have affected the decision and therefore, is a jurisdictional error.

Ground 1(b) – danger on return to the southern province

1. The Authority found that the applicants could return to Iraq’s southern province where they had previously lived.

2. The applicants assert, however, that the Authority failed to consider how the applicants could arrive at Baghdad airport and then travel to their southern province.

3. The applicants note that at [56] of the Authority’s decision record that the Authority states that ‘I am satisfied that they will be able to safely return to Maysan by travelling via Baghdad and Basra airport’.

4. The applicants assert that the Authority was required to consider how the applicants were to travel from Baghdad airport to the southern provinces (whether that be by air or car or other means). The applicants assert this failure to do so is material in the sense used in Hossain[7] and SZMTA[8], and that the Authority is, therefore, in jurisdictional error.

   [7] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 (‘Hossain’).

   [8] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (‘SZMTA’).

5. The applicants note that such relevant information had been put in front of the Delegate and should be treated as being in front of the Authority. This information included information from the UK Home Office and the Australian Government on the question of harm from travelling between Baghdad and the southern provinces.

Ground 1(c) – media articles on Google

1. The applicants assert that the Authority failed to have regard to information that was before it, namely, news articles relating to the Second Applicant’s involvement in a fraudulent scheme.

2. The Authority noted that two Daily Telegraph articles were not new information, but did not accept other information that was provided to it by the applicants’ submissions of 30 August 2018 due to it being, in part, in the incorrect format.

3. The applicants assert that the two Daily Telegraph articles can be found by making a Google search of the Second Applicant’s incorrectly spelled name as requested by the applicants’ post-interview submission to the Delegate. Such a search, if made, would, presumptively, have brought up other articles. The applicants assert that the Delegate either had possession of, or had read, the articles or the precis of the articles and had the URL specifications for the articles contained in the 30 August 2018 submissions. Accordingly, it is the case that the information was not new information pursuant to s 473DC(1) of the Act and should have been given to the Authority per s 473CB (and not excluded per s 473DD). The Authority was, therefore, obliged to consider the information per s 473DB(1).

4. The failure to consider this information was material as it ‘added considerably to the weight of evidence that the Second Applicant’s conviction for fraud in Australia was “widely reported”’.[9] The applicants say this in the context of a finding by the Authority, at [43] of the decision record, that:

   However, there is no credible evidence before me to suggest that this is widely reported in Iraq either in English or Arabic. I do not accept the representative’s assertion that this information would be shared with security forces, militia connected with those forces and criminal gangs in Iraq. Even [if] this is the case, the information as reported does not suggest that Applicant 2 was successful in his fraud attempt, [that] he actually pocked any amount of money or the family is rich as a result.

   [9] Applicant’s Outline of Submissions, dated 10 July 2019, [43].

5. The applicants also argue that if the information is considered ‘new information’, the Authority is obligated to consider the information as these circumstances are exceptional (per s 473DD(a)) and the information is credible personal information (per s 473DD(b)(ii)). The applicants submit the information fits within the definition of ‘personal information’ in s 5 of the Act and that it was information ‘not previously known’ as interpreted in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 174.

6. If the information is new information, then it is said that the information meets the requirements of section 473DD(a) and (b)(ii). Accordingly, because the possible effect is so grave, it was necessary for the Authority to exercise its discretion to consider the information:

   It was unreasonable of the Authority to close its mind to them. They were therefore relevant considerations.

   (citations omitted).

7. The applicant further says, whether new information or not (and even if it is just the precis of information), the information was material.

Ground 1(d) – the family of the Second Applicant was well known

1. The applicants says that the Authority did not make a finding in relation to the Second Applicant’s claim to have been from a well-known family. This would have effected, it is argued, the Authority’s consideration of the Second Applicant’s claims to fear abduction or extortion, whether from militias or as part of the tribal conflict.

2. The applicants argue that the fact that the Second Applicant’s family is well known is important and material question of fact. It is, therefore, a jurisdictional error by the Authority not to have considered this claim.

Ground 2 –

1. The applicants have abandoned this ground.

Ground 3 – the Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material

1. The applicants impugn [23] of the Authority’s decision record:

   The applicants have consistently claimed that [the Second Applicant’s] father was killed in 2005 and he worked for the Americans in the Baghdad airport as a chef. At the SHEV interview [the Second Applicant] stated that his father was a cook and a contractor managing the people doing the cooking and was well known. He was also a tribal leader. He stated that when his father was leaving the airport in his car a group of people shot and killed him. [The Second Applicant] stated that his father was not threatened before he was killed. In the circumstances as described, I am not satisfied that his father’s death was the result of being personally targeted.”

   (as highlighted by the applicants)

2. The applicants respond that the finding (highlighted) is:

   manifestly unreasonable, and logically incoherent, to accept that the Second Applicant’s father was shot and killed in his car by a group of men, but that this was not “personally targeted”. This would be so wherever the shooting occurred, but the shooting of a Shia tribal leader, in his car, by a group of men, as he left his work, working for the Americans, at Baghdad airport, is and must have been “personally targeted”. No other conclusion, with respect, is rational.[10]

   [10] Applicant’s Outline of Submissions, dated 10 July 2019, [59].

3. The applicants assert this is a jurisdictional error as the error is material.

Respondent’s submissions

Ground 1 – the Authority fell into jurisdictional error in that it failed to consider a relevant consideration

Ground 1(a) – claim to have faced threat after 2008/09

1. The Minister contends that the applicants’ claim is premised on the Second Applicant having made a positive assertion that he had been threatened in 2012. The Minister contends that this premise is untrue, that the Second Applicant’s claims had developed from stating he had not had any troubles, to vague assertions. In light of the uncertainty, and the earlier positive assertions made by the Second Applicant that he had not received any threats in 2012, the Minister asserts that the applicants have not raised a ‘substantial, clearly articulated argument relying upon established facts’.[11] Accordingly, the Minister contends that the Authority was not obligated to consider whether the Second Applicant had faced any threats in or around 2012 (particularly, it is argued, given that the Second Applicant could not articulate in detail the alleged threat).

   [11] Respondent’s outline of submissions, filed 24 July 2019, [24] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, [24] (Gummow and Callinan JJ) and [95] (Hayne J, agreeing).

2. The Minister further contends that the disputed claim is not material because it is inextricably linked to the claims of being kidnapped and threatened (which was considered by the Tribunal). The Minister relies on Hossain at [30]-[31].

Ground 1(b) – danger on return to the southern province

1. The Minister says that the Authority found that the applicants would be able to travel safely between Baghdad and Basra, and this would occur by travelling by plane between the airports. The Minister says that there is no suggestion that the applicants would travel by road.

Ground 1(c) – media articles on Google

1. The Minister accepts that the Authority correctly found that the two Daily Telegraph articles had been provided to the Authority in accordance with s 473CB of the Act and therefore, were not new information within the meaning of s 473DC(1).

2. The Minister argues that the other documents were not before the Delegate by virtue of the Second Applicant’s misspelt name being Googled. It is put that the results of that Google search is not evidence of what may have resulted from the Delegate performing the similar task at an earlier time. The Minister disputes that the Court can assume that the Delegate undertook such a search.

3. The Minister submits that the Authority was correct in finding that the information was ‘new information’ per s 473DC(1) and should not have been included. It is said that the circumstances of the information is not exceptional given that:

   a)the information was provided in a format not consistent with the practice direction;

   b)there was no explanation why the information was not provided to the Delegate; and

   c)the applicants were represented in front of the Delegate who knew the requirements of the practice direction.

4. The Minister then states that the information is not ‘credible personal information’ for the purposes of s 473DD(b)(ii) as the applicants had not contended that the information was published or shared in the Arabic language or in Iraqi media (or social media). The Minister thus submits that there is little probative value in the applicants’ assertion that the information was shared to the Iraqi militia, police or criminal organisations.

Ground 1(d) – the family of the Second Applicant was well known

1. The Minister asserts that the Authority did consider the Second Applicant’s claims to be from a well-known tribal family when the Authority considered whether a Sunni tribe procured a ‘sanction to kill’ against the Second Applicant.

2. To the extent that the Second Applicant asserts that the Authority failed to consider his fears arising from the prominence of his family (being the possibility of being abducted or extorted for being part of a wealthy family), the Minister contends that this fear was not positively put.

3. The Minister says that the applicants’ claims in this respect depends on its exposure on ‘constructive or creative activity by the Authority’.[12] This appears to be put against the Authority’s finding that the Second Applicant was not kidnapped nor threatened nor that the fraud had been reported in Iraq or disseminated to Iraqi militia, police or criminal organisations. The Minister then concludes at [43] that:

   In light of the Authority’s rejection of the second applicant’s claims, its consideration of the family’s prominence in their tribe in these additional contexts would not have been material to the outcome of the Authority’s decision in any event.

   [12] Respondent’s outline of submissions, filed 24 July 2019, [42].

Ground 2 –

1. The applicants have abandoned this ground.

Ground 3 – the Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material

1. The Minister contends that the applicants are seeking a form of merits review by making this claim.

2. The Minister submits that the decision that the Second Applicant’s father was not ‘personally targeted’ is not a finding of a sort which no rational or logical decision maker could arrive at.

3. The Minster further submits that the Authority’s task is, per s 65, to reach a level of satisfaction that the requirements of s 65 are met. Accordingly, the Minister says that the Authority was simply not satisfied that the Second Applicant’s father was ‘personally targeted’.

Consideration

Ground 1 – the Authority fell into jurisdictional error in that it failed to consider a relevant consideration

Ground 1(a) – claim to have faced threat after 2008/09

1. The material before the Authority indicates that the Second Applicant did not make a claim to have been so threatened.

2. On page 568 of the Court Book (page 23 of the Delegate’s decision record), the Delegate sets out the information provided by the Second Applicant in relation to Maysan in or around 2012:

   The applicant was then asked about his second period in Maysan in or around 2012. The applicant was asked what if anything had happened while he was there and replied nothing. At a later point in the interview the applicant was again asked about his time in Maysan. The applicant made vague references to having a problem. The applicant was asked to elaborate and stated that he didn’t remember but thought it was one of the incidents when he was threatened. It was put to the applicant that he had previously provided testimony that he was only threatened in Baghdad and that he had not been threatened after leaving Baghdad. The applicant stated “they” had connections everywhere. Given the applicant’s internally inconsistent testimony, lack of details, and failure to previously refer to this alleged threat, I do not accept that the applicant was threatened in Maysan around 2012 as claimed.

3. An assertion that the Second Applicant had “problems” does not constitute a claim which arises clearly from the information.

4. In any case, the Tribunal at [30]-[32] considered claims as to whether the Second Applicant had received threats or whether he had been kidnapped. In my view, there is been no failure on the part of the Authority to consider threats to the Second Applicant whether in the southern provinces of Iraq in 2012 or otherwise.

Ground 1(b) – danger on return to the southern province

1. In substance, the Second Applicant claims that the Authority failed to consider whether the Applicants could arrive at Baghdad airport safely and whether they could travel safely from Baghdad airport to the southern province.

2. The impugned sentence is at [56] of the Authority’s decision record, where the Authority said:

   I am satisfied that they will be able to safely return to Maysan by travelling via Baghdad airport and Basra airport.

3. At [56] of the Authority’s decision record, the Authority found that the security situation in the southern provinces of Iraq was stable and was satisfied that the Applicants would be able to return safely to Maysan by travelling by Baghdad airport and Basra airport.

4. It is plain that the Authority was referring to air travel from Baghdad airport to Basra airport and therefore, the issue of the danger arising from road travel between those points did not arise. This approach was open to the Authority. The Authority was entitled to assume that the Applicants would travel by plane from Baghdad airport to Basra airport.

5. As there has been no failure on the part of the Authority to consider the question of relocation from Baghdad to Maysan, this ground must fail.

Ground 1(c) – media articles on Google

Was the information before the Delegate?

1. At [7] of the Authority’s decision, the Authority refers to two Daily Telegraph articles regarding the Second Applicant’s criminal activities in Australia. The Applicants submits that these articles were located after the Delegate conducted a Google search of the Second Applicant’s misspelled name.

2. The Applicants submit that the Court should infer that the Google search included other results, which the Delegate had access to and read (‘the Google information’). It is said that the Google information (the two Daily Telegraph articles and the other articles appearing as a result of the Google search) should have been considered as material that was before the Delegate and that the Google information should have been provided to the Authority and considered by it per section 473CB of the Act.

3. The results of a Google search of the Second Applicant’s misspelled name conducted on 10 October 2018 are set out in the Amended Supplementary Court book filed on 11 July 2019. The Authority is said to be in error by failing to treat the results of the Google searches as material that was before the Delegate. It is said that the Authority was in error in that it considered these articles – including articles referred to in [8] of the Authority’s decision – as new information which it chose not to accept under section 473FB(5).

4. I do not accept that the two Daily Telegraph articles could only have been located after the Delegate conducted the Google search of the Second Applicant’s misspelled name. The reference to the Google search of the Second Applicants misspelled name is found in the Applicants’ post hearing submissions to the Delegate.[13]

   [13] Court Book, page 486 [34].

5. There is no basis for the Court to infer that the Delegate did Google search the Second Applicant’s misspelled name. I note the Applicants’ submissions to the Authority dated 30 August 2018 at page 644 of the Court book note that the Second Applicant’s ‘offence and imprisonment is only referred to in passing in the decision record’. At Court book 645 the Applicants’ submission provides that: ‘[h]ad the Delegate conducted the search (there is no indication in the decision record that he did), that search would have disclosed […]’. It is plain that the Applicants’ representative assumed that the Delegate had not conducted that search. Similarly, the Court does not assume that the Delegate conducted a search of the Second Applicant’s misspelled name. Nor does the Court assume that such a search resulted in the documents that are referred to by hyperlink in the footnotes of the submissions to the Authority dated 30 August 2018.

Was the Authority in error in finding that there were not exceptional circumstances to allow the new information?

1. In my view, there is no error in the manner in which the Authority dealt with the issue of whether to consider the articles referred to in [8] or the results of the Google search found in the Amended Supplementary Court Book

2. It was open for the Authority to consider that the media articles and the Facebook materials referred to in the Applicants’ submissions at Court book 645 were new material. It was open for the Authority not to be satisfied that there were exceptional circumstances to justify considering the new information for the reasons which are set out at [8] of the Authority’s decision record. The Authority’s reasons for not accepting the information includes:

   a)the Applicants’ failure to comply with a practice direction (by providing information by way of hyperlink rather than extracts or copies of the reports), which, per section 473FB(5), the Authority is not required to accept new information or documents if the person fails to comply with a relevant direction;

   b)there is no explanation why the information was not previously provided; and

   c)the Applicants were represented before the Delegate by a registered migration agent who would have been aware of the practice requirements.

1. Similarly, there is no error in the Authority not being satisfied that the new information could not have been provided to the Delegate before the primary decision in accordance with section 473DD(b)(i).

2. Finally, even if the material referred to in the Google search at [8] of the Authority’s decision record was not new information and the Authority was in error in failing to consider it, the Authority found that the information would not have made a material difference to the Authority’s decision. The Authority stated at [8] of the decision record that:

   Even if it were accepted, on the face of the materials there is no suggestion they were published or shared in [the] Arabic language or in Iraqi media/social media. I consider they have little probative value in supporting the assertion that the information would be shared with Iraqi security force[s], militias or criminal gangs, noting the Daily Telegraph materials was before the delegate which indicate[d] [that the] Applicant 2 [had] received adverse publicity in [the] Australian media.

3. The Authority is clearly stating that the articles referred to would have had little probative value in supporting the Applicants’ assertion that the information contained in the articles would have been shared with Iraqi security forces, militias or criminal gangs. This is the case as there was no suggestion made by the Applicants that the information referred to had been published or shared in the Arabic language or in the Iraqi media. The Authority proceeded on the basis that the information had not been published and shared in the Arab media or that any article regarding the Second Applicant had been transcribed into Arabic. There is nothing illogical or unreasonable about that decision, and accordingly, if the Authority is in error (which I do not accept), the error is not a material one.

4. In respect of materiality, I have regard to at [30] where Kiefel CJ, Gageler and Keane JJ stated:

   Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

   (citations omitted)

5. I have further regard to SZMTA where Bell, Gageler and Keane JJ stated that ‘a breach is material to a decision only if compliance could realistically have resulted in a different decision’. The alleged error, if it there was one (which I not accept), would not have realistically resulted in a different conclusion.

Ground 1(d) – the family of the Second Applicant was well known

1. The substance of this ground is that the Authority failed to consider a claim that the Second Applicant’s family were well-known and influential in his tribe, in particular, that his father was a very well-known personality mentioned in literature about Iraqi tribes.

2. The Authority’s reasons at [39] of the decision record indicate that this claim (such as it was) was considered by the Authority where the Authority stated ‘[n]otwithstanding his claim throughout the interview that his family was influential in the tribe and his then father and later his eldest brother was the leader of his tribe, he did not raise the claim earlier that he was being pursued through tribal channels’.

3. A claim that the Second Applicant’s family might be kidnapped, abducted or extorted as a result of his family’s place within a tribal structure does not clearly arise on the material before the Authority.

Ground 3 – the Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material

1. This ground is based on a submission that the Authority’s finding that the murder of the Second Applicant’s father when he was shot by a group of people in a car whilst leaving the airport was not a result of him being personally targeted. This finding is set out at [23] of the Authority’s decision record.

2. In my view, there is nothing illogical in the Authority’s reasoning in that paragraph. The Authority was of the view that because the Second Applicant had said that the father had not been threatened before he was killed, he was not satisfied that the father’s death was a result of being personally targeted. Put another way, there was no reason put forward that the Second Applicant’s father was the intended victim, and therefore, he was not targeted for some reason. There is no error apparent in the Authority’s decision making process in that regard.

Conclusion

1. The Court has sought to deal with the Applicants grounds of review as set out above. The focus of the grounds of review make that task difficult as the grounds of review are essentially argumentative rather than clearly setting out the basis on which an error is asserted.

2. For the reasons above, I have concluded that the application must be dismissed.

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

Associate: 

Date:  29 November 2019