MZZMX v Minister for Immigration
[2019] FCCA 1554
•7 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZMX v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1554 |
| Catchwords: MIGRATION – Refugee Review Tribunal – extension of time application – four and a half year delay – whether the Tribunal’s decision was irrational, illogical or unreasonable. |
| Legislation: Migration Act 1958 ss.477, 486D |
| Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; (2016) 154 ALD 221; [2016] FCAFC 174 CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 |
| Applicant: | MZZMX |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 2636 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 7 March 2019 |
| Date of last submission: | 7 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2019 |
REPRESENTATION
| Counsel for the applicant: | Angel Aleksov |
| Solicitors for the applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the first respondent: | Timothy Goodwin |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act 1958, the time for the filing of the application to this court be extended to 4 December 2017.
The decision of the Refugee Review Tribunal handed down on 3 May 2013 in matter number 1302975 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
The first respondent pay the applicant’s costs of the proceeding, fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2636 of 2017
| MZZMX |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal, as it was then known. In that decision, the Tribunal affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa. If an extension of time is granted, the matter was listed for final hearing at the same time as the hearing of the extension of time application.
The extension of time application
The Tribunal’s decision was made on 3 May 2013. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. The application to this court was not filed until 4 December 2017. Consequently, the application was 1,641 days late. That is four years and almost six months.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application for review if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)the prejudice to the Minister of the grant of an extension of time;
d)the public interest in there being an end to litigation about the efficacy of the acts or decisions of public bodies or officials; and
e)the merits of the substantive application.
a. the length of the delay
As stated, the delay was about four years and six months. In written submissions filed on 1 March 2019, the Minister argued that the length of the delay in this matter was very significant. The applicant accepted in oral submissions that he was seeking quite an extraordinary indulgence.
b. the reasons for the delay
The applicant filed his first application for judicial review in this court on 26 June 2013. He needed an extension of time of two weeks and five days. The matter was listed for final hearing on 28 May 2014. On 27 May 2014, orders were made in chambers by consent dismissing the application.
The applicant said at paragraph 20 of his affidavit affirmed on 14 September 2017 that he did not recall consenting to the dismissal of the matter. He said that he was persuaded by legal advisers to pursue ministerial intervention. The applicant lodged an application for ministerial intervention on 17 April 2014. The applicant was notified on or around 27 May 2015 that his application for ministerial intervention was unsuccessful.
The applicant said at paragraph 22 of his affidavit affirmed on 14 September 2017 that, after he was notified of the refusal of his application for ministerial intervention, he stopped attending the Department of Immigration every three months to renew his bridging E visa. He said that the Asylum Seeker Resource Centre (“ASRC”), which had been assisting him, did not give him any other options as to how to remain in Australia. He said that he did not return to Iraq because he was fearful. He said that, in 2016, a social worker at ASRC assisted him and he received psychiatric assistance through the ASRC.
The psychiatrists’ notes are mostly handwritten and are hard to read. However, the applicant appears to have reported to his psychiatrists suicidal thoughts without a plan, poor sleep, poor memory and reduced appetite. The applicant was given medication to assist with his sleep, and it seems to have improved his sleep quality.
In late May 2017, the Department advised the applicant that he should leave Australia. The applicant then sought further legal advice through his current private firm of solicitors.
The applicant filed a second application for judicial review on 21 September 2017. That was more than three years after the dismissal by consent of the first application and more than two years after the refusal of the ministerial intervention request.
On 27 October 2017, the Minister wrote to the applicant stating that the second application was in breach of s.486D(1) of the Act because it failed to disclose the previous judicial review proceeding. The applicant discontinued his second application on 10 November 2017.
On 4 December 2017, the applicant filed a third application for judicial review. That is the application that is presently before the court. The Minister did not submit that the third application is defective because of the earlier ones.
The Minister argued that the reasons for the delay were unclear from the applicant’s materials. The Minister particularly submitted that the applicant had not sufficiently explained the delay of over three years between the discontinuance of the first application for judicial review on 27 May 2014 and the filing of the second judicial review application on 21 September 2017.
The applicant did not suggest that the explanation he had given was adequate, but did submit that it was his fear of being returned to Iraq that caused him not to contact the Department after his application for Ministerial intervention was refused.
c. the prejudice to the Minister
The Minister did not point to any prejudice from the grant of an extension of time, other than the clear public interest in the prompt disposition of allegations of jurisdictional error against administrative decision makers.[1]
[1] Paragraph 16 of the Minister’s written submissions filed on 1 March 2019.
The applicant said in paragraph 5 of his written submissions that:
No party or any third party suffers any prejudice from the grant of an extension of time. That factor is often allowed to go understated. The absence of prejudice to any party, in circumstances where the applicant seeks to prove the absence of legal effect of a decision that has the substantive effect of permitting the applicant’s removal from Australia and to Iraq, and in circumstances where he has a meritorious case, is a matter that should weigh heavily in favour of a grant of the extension of time.
d. the public interest in there being an end to litigation
Except as previously mentioned, neither party made any submissions about this point.
e. the merits of the substantive application
i. the applicant’s claims
The Tribunal summarised the applicant’s claims as follows:
20.… [The applicant] is an Arab Sunni born in 1974 in Kuwait. He completed Year 9 at High School. His family moved to Al Nasiriya, Iraq in 1990 during the Iraqi occupation. He is married and has one son. They were always seen as outsiders in Iraq and they were accused of being Kuwaiti and being thieves who stole oil. He was employed as a labourer and food seller from 1993 to 2004. He left Iraq because of the violence between Sunni and Shia. As a Sunni he received verbal threats and insults from Shias but the threats increased when he started to run a music shop in 2004 in a Shia area. A few years later members of the Al Mahdi Army, Al Fadihila and Al Dawa came to his shop and told him the music was haram. They warned him to close the shop and then they would leave. He refused and told them it was his only livelihood. The harassment increased with the number of men coming into the shop increasing from two to five to seven. They came to the shop on many occasions and smashed windows. They also threatened to harm his family. He was forced to close the shop for periods of time. In 2010 he got into a fight with the Shia militia in his shop and he was stabbed with a knife and pinned to the ground and beaten unconscious. When he woke up he was in hospital and he stayed there for about one week. He required 38 stiches in his arm. When the applicant got out of hospital he sold the shop on 15 July 2010.
21.In late 2010 or 2011 the applicant started to be harassed and detained by the police. He believes that some of the police were also members of local Shia militia groups. He was detained on more than 10 occasions when there was an explosion or incident. He was detained for a day or so. In January 2012 there was an explosion in Al Batha caused by a Sunni. He was arrested by the police at his home. He was asked if he was a Shia or a Sunni and asked if he was involved in the terrorist activities. He was beaten and held for 3-5 days. His little finger on his right hand was broken. He was released after the organisers of the suicide bombing were arrested. He left Iraq on 6 February 2012 by flying out of Basra Airport using his own genuine passport. His family still continues to receive visits with the last visit around early March 2013. It is submitted that his perceived Kuwaiti nationality makes him a greater target.
ii. the delegate’s decision
The delegate did not accept that the applicant ran a music shop. The delegate noted that the applicant claimed to have been harassed in 2009 and following. The delegate considered that, based on the country information, the applicant would have suffered harm before that if he had actually owned a music shop.
iii. the Tribunal’s reasons
The Minister summarised the Tribunal’s reasons for decision in his written submissions filed on 1 March 2019 as follows:
10.The Tribunal set out at length country information about the Mahdi Army in Iraq, noting it had not been active in the Applicant's home town of Nasiriya since being expelled from the city by the Iraqi military in 2008. Reports in 2012 noted that while there was secular violence in the southern cities, including Nasiriya, there were few recent security incidents and insecurity had little impact on civilian life.
11.In relation to music, the Tribunal found that after the fall of Saddam Hussain in 2003, Shia militias grew powerful in areas such as Nasiriya and there were a number of incidents around 2007 to 2009 that involved musicians being attacked and beaten and some music stores being sprayed with gunfire or bombed.
12.In relation to the claims associated with the ownership of a music shop, unlike the delegate, the Tribunal accepted that the Applicant was an owner of a music shop. However, the Tribunal rejected that the Applicant had ever been targeted as a result of owning a music shop for the following reasons, set out at [41] of the Decision:
12.1.The Applicant gave "fundamentally inconsistent evidence" about when the problems started, variously stating that the problems happened a few years after the shop opened and then at the hearing stating they commenced immediately.
12.2.Country information indicated that Islamic extremists and the Mahdi Army acted in a "very violent way throughout Iraq and southern Iraq" including the Applicant's home city of Al Nasiriya, to those involved in the music industry including store owners. It was not plausible or credible in light of that information that the applicant could continually close and re-open his shop on a number of occasions over a number of years and not be harmed other than receiving more threats.
12.3.The Applicant's evidence regarding claimed targeting of him by Islamic extremists was very vague, including how many visits he received or how many times he had to close the shop.
13.On this basis, the Tribunal rejected that extremists had visited the Applicant's shop, smashed windows or threatened his family, or attacked him in 2010. The Tribunal also noted that it had been three years since the Applicant sold the music store and that he no longer owns it in assessing whether he has a real chance of persecution now or the reasonably foreseeable future.
14.The Tribunal rejected that the Applicant had been a target by the authorities or Shia groups from late 2010 because his account was marked by fundamental inconsistencies and it was not credible that, having lived in the area for years and not been of any interest, he would suddenly be "the subject of such frequent and intense interest by the authorities". The Tribunal also rejected that the Applicant would face harm merely as a Sunni or someone born in Kuwait.
15.The Tribunal found that the Applicant did [not] meet the refugee criterion for these reasons. The Tribunal also rejected that the Applicant met the complementary protection criterion under the Act.
(footnotes omitted)
iv. the ground of review
The sole ground of review in the application filed on 4 December 2017 is:
1. The decision of the Tribunal is affected by illogicality, irrationality, legal unreasonableness or an undisclosed error, in that the Tribunal:
a.found that the applicant ran a music shop from 2004-2010;
b. found that Islamic extremists and the Mahdi Army acted in a very violent way to those involved in the music industry including store owners; and
c. reasoned that it was not plausible or credible that the applicant would be able to continually close and re-open his shop after receiving threats and not be harmed other than [by] receiving more threats.
v. the Tribunal’s reasons regarding the music shop
Paragraphs 41 to 43 of the Tribunal’s reasons for decision deal with the music shop issue as follows:
Music shop
41.I accept that he ran a music shop from 2004-2010 as he was able to describe the operations of the shop and at the hearing the interpreter translated a document that was a contract of sale that was dated 15 July 2010 and that recorded that the shop contained studios and recordings. However, I do not accept that the applicant was ever targeted because of his ownership of this shop. I do so for the following reasons:
·The applicant gave fundamentally inconsistent evidence about when the problems with the shop commenced. In his statement of 16 July 2012, he stated that he started to experience problems a few years after he opened the shop which is inconsistent with what he said at the hearing that the problems commenced in 2004 and got worse after that. When this was put to him at the hearing he commented that at the start they were not threats “just normal talk” and that a couple of years later he started to get threats. I do not accept this as a satisfactory explanation that “just normal talk” is equivalent to the commencement of problems and I find this is a key inconsistency.
·The above country information indicates that Islamic extremists and the Mahdi Army acted in a very violent way throughout Iraq and southern Iraq and the (sic) his home city of Al Nasiriya to those involved in the music industry including store owners. It is not plausible or credible in the light of this information that the applicant would be able to continually close and re-open his shop as he claimed (when I put the substance of this information to him at the hearing) on a number of occasions over a number of years after receiving threats and not be harmed other than receiving more threats;
·The applicant’s evidence at hearing concerning the claimed targeting of him by the Islamic extremists was very vague in key elements. For example, he was unable to recall how many visits he received from these men or how many times he closed his shop other than saying there were too many.
42.Due to these fundamental concerns I have with the applicant’s credibility, I do not accept that members of the Al Mahdi Army, Al Fadihila and Al Dawa came to his shop and told him the music was haram and warned him to close the shop. I do not accept that they came to the shop on many occasions and smashed windows or they threatened to harm his family. I do not accept that in 2010 he got into a fight with the Shia militia in his shop and he was stabbed with a knife and pinned to the ground and beaten unconscious. Whilst I accept that he suffered a serious injury causing 38 stiches in his arm, I do not accept that this was caused in the manner he claims. I do not accept that these men later came to his house to see what he was doing.
43.Whilst I accept that the applicant owned a music shop, I do not accept that he was ever threatened or harmed and that he sold that shop because of threats. It is now three years since he sold it and he no longer owns it and I do not accept that he faces a real chance of persecution now or in the reasonably foreseeable future on account of this whether this is categorised as imputed or actual political opinion or religion or any other Convention ground. For the same reasons, I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Iraq that there is a real risk that he will suffer significant harm on this basis.
vi. the applicant’s argument
The applicant noted that, unlike the delegate, the Tribunal accepted that the applicant ran a music shop from 2004 to 2010. The Tribunal also accepted that the Mahdi Army violently attacked music shop owners. The applicant argued in his written submissions that the Tribunal’s subsequent finding, that the applicant had lied about having been threatened for owning a music shop because he did not suffer actual harm, made no sense. In his oral submissions, the applicant said that it made no sense that the Tribunal found that it was implausible that a music shop owner in Iraq in 2004 to 2010 would not be harmed, but then say that the applicant, as a music shop owner, was not harmed.
The applicant also noted that the country information indicated that many, but not all, music shop owners were the victims of violence. In that circumstance, the applicant argued that it was not inherently implausible that the applicant was threatened but not actually harmed, although he owned a music shop.
vii. the Minister’s argument
The Minister noted that the test for irrationality in administrative decision making required extreme irrationality. The Full Court of the Federal Court held in ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; (2016) 154 ALD 221; [2016] FCAFC 174 at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR); at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZKRT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
In relation to unreasonableness, the Minister relied on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at paragraphs 58 to 65 which are as follows:
58.First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J).
59.Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
60.Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
61.This appeal is primarily concerned with whether the outcome of the Minister’s exercise of power was legally unreasonable. That said, some of the primary judge’s reasons for concluding that the decision was unreasonable, and some of the appeal grounds and submissions, are directed at the Minister’s reasons and alleged errors in the decision-making process.
62.Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ).
63.Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].
64.Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]- [47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
65.Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
The Minister argued that the Tribunal’s finding in the second dot point of paragraph 41 of its reasons for decision was explicable because the country information indicated that music shop owners were not simply threatened but were subject to actual violence. The Minister argued that, in the light of the country information, it was reasonable for the Tribunal to find it implausible that the applicant would not have experienced an act of violence in the six years he owned a music shop. The Minister also noted that the Tribunal relied on other inconsistencies in the applicant’s evidence in concluding that he had not been targeted.
viii. consideration of the extension of time application
In considering whether to grant an extension of time, the court is required to consider the arguments in an abbreviated manner. I consider the applicant’s ground of review to be arguable. As the Minister would suffer no prejudice from an extension of time, and as the consequences to the applicant of refusing an extension of time are potentially so severe, I consider that the ground of review being arguable tips the balance in favour of granting an extension of time, notwithstanding the extraordinary length of the delay in bringing the application, and the largely inadequate explanation for the delay.
The substantive application
The applicant relied on the decision of Allsop CJ in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 where his Honour said:
The making of the credibility findings and the review of them for jurisdictional error
60In assessing claims for protection, a liberal approach on the part of a decision-maker to the assessment of protection claims is called for: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 52 FCR 437 at 451. Nevertheless, the Tribunal does not have to accept an applicant’s claims uncritically, as the principles recently summarised by Flick J in SZUHJ v Minister for Immigration and Border Protection [2018] FCA 331 at [24] reveal:
… The task of fact finding has long been accepted as a task entrusted to the Tribunal: Osland v Secretary, Department of Justice (No 2) [2010] HCA 24 at [19], (2010) 241 CLR 320 at 332 per French CJ, Gummow and Bell JJ; Repatriation Commission v O’Brien (1985) 155 CLR 423 at 430 per Gibbs CJ, Wilson and Dawson JJ. So, too, has it been long-accepted, that findings as to credibility are the function of the primary decision-maker “par excellence”: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J . To confine the Tribunal to only being permitted to make a finding consistent with the factual account being given by a claimant in the absence of rebutting evidence and not by reference to inconsistencies in that factual account would be inconsistent with the task entrusted to the Tribunal by the legislature to make findings of fact by reference to the evidence before it and would be inconsistent with authority: CQG15 [2016] FCAFC 146, (2016) 70 AAR 413. Although the difficulties of proof which may be encountered by a claimant seeking protection may readily be accepted, the Tribunal is not obliged to accept uncritically a factual account given by, or submissions advanced by, a claimant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 to 452 per Beaumont J.
61The process of assessment of credibility and evaluation of evidence may contain an element of doubt. Though credit findings are thus generally matters for the Tribunal, they are not immune from review for jurisdictional error: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]-[38]. As Robertson J made clear in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99, the Tribunal’s process of fact finding can be reviewed for jurisdictional error. Such findings can be challenged on a number of grounds, including, for example (and I emphasise that these are examples): failure to afford procedural fairness, reaching findings without a logical or probative basis, or legal unreasonableness: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at 130 [83].
62The fact that a finding by the Tribunal is on a matter of credit does not “shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, “like all findings, must be rationally made and based upon facts having logical and probative weight”. Determinations on credibility and weight must “be made rationally and logically, and be articulated properly” and minor inconsistencies and trivial errors in an applicant’s account cannot be used to find that an applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].
63Determining whether credibility findings are so irrational, illogical or unreasonable so as to be infected with jurisdictional error requires an examination of the facts of the case and of the Tribunal decision: SZRKT 212 FCR at 121 [77]; CQG15 at [36]-[44]; ARG15 250 FCR at 130 [83]; and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 353 ALR 641 at 649-650 [30].
64The principles relating to the review of credibility findings for jurisdictional error, in the context of whether such findings had been infected with jurisdictional error due to irrationality, illogicality or unreasonableness, were recently summarised by Kenny, Kerr and Perry JJ in DAO16 353 ALR at 649-650 [30]:
…
(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
(emphasis in original)
65One must always recognise, in addition, that concepts of jurisdictional error and legal unreasonableness do not “depend on definitional formulae or on one verbal description rather than another” and that “legal unreasonableness is not amenable to minute and rigidly-defined categorisation or a precise textual formulary”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 3 [2] and 5 [10]. The consideration of whether a decision is legally unreasonable is, as described in Stretton 237 FCR at 5-6 [11]:
… not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Country information set out in paragraphs 33 to 37 of the Tribunal’s reasons for decision consisted of newspaper articles and a report from the NGO Free Muse. The country information was to the effect that those involved in the music industry had been attacked and beaten, a music store selling records had been burned down, another music store had been sprayed with gunfire, another music store had been bombed and a musician had been decapitated.
Relevantly, the critical passages of the Tribunal’s reasoning are at paragraphs 41 and 42 of its reasons for decision, which are as follows:
41.I accept that he ran a music shop from 2004-2010 …. However, I do not accept that the applicant was ever targeted because of his ownership of this shop. I do so for the following reasons:
…
·The above country information indicates that Islamic extremists and the Mahdi Army acted in a very violent way throughout Iraq and southern Iraq and the (sic) his home city of Al Nasiriya to those involved in the music industry including store owners. It is not plausible or credible in the light of this information that the applicant would be able to continually close and re-open his shop as he claimed (when I put the substance of this information to him at the hearing) on a number of occasions over a number of years after receiving threats and not be harmed other than receiving more threats;
…
42.Due to these fundamental concerns I have with the applicant’s credibility, I do not accept that members of the Al Mahdi Army, Al Fadihila and Al Dawa came to his shop and told him the music was haram and warned him to close the shop.
It seems to me that what the Tribunal was saying in those passages was that:
a)the country information showed that, when members of the Mahdi Army attacked a music store, they were very violent;
b)the applicant’s claim was that members of the Mahdi Army attended his music store and warned him to close it;
c)it was inconsistent with the country information that the Mahdi Army would not have been very violent when seeking to make the applicant close his store;
d)it was implausible that the applicant would have been able to close and re-open his store, if he had been targeted by the Mahdi Army at all;
e)that is because, if he had been targeted by the Mahdi Army, they would have sprayed his store with gunfire, or blown it up, for example; and
f)if the applicant had been targeted by the Mahdi Army, they would not have given him repeated warnings, such that he would have been able to repeatedly close and re-open his shop.
That process of reasoning does not strike me as being irrational or illogical, in the legal sense.
As the owner of a music store between 2004 and 2010, the applicant probably was at real risk of being targeted by members of the Mahdi Army. However, the Tribunal’s point was that he was not in fact targeted by them in the past, and, because he no longer owns the music store, he is not at risk of being targeted by them in the future.
The applicant’s subsidiary point was that, contrary to the Tribunal’s statement that the Mahdi Army supposedly did no more than make more and more threats, the applicant’s evidence was that the windows of his shop were smashed and he was stabbed.
However, the Tribunal did not accept the applicant’s claim that his shop windows were smashed. That seems to be because the smashing of windows was not the type of very violent act in which the Tribunal understood the Mahdi Army to engage. It will be recalled that the country information referred to fires, gunfire, bombing and decapitation. It does not seem to me that the Tribunal’s finding on this issue is irrational or illogical, in the legal sense.
The applicant claimed that he was stabbed by the Shia militia in 2010, and it was that event that caused him to sell his music shop. However, the Tribunal’s point in relation to the claim that the Mahdi Army made more and more threats rather than taking very violent action was that the applicant claimed that the threats went on for a number of years. The Tribunal did not find that claim to be credible. For that reason, and others, the Tribunal did not accept the claim that the applicant was stabbed by Shia militia. That process of reasoning does not strike me as being irrational or illogical.
However, it does strike me as being unreasonable in the legal sense for the Tribunal to have considered that, because some activities of members of the Mahdi Army that were reported in newspapers were very violent, members of the Mahdi Army would only have sought to close down music shops with very violent acts. The Tribunal does not seem to have taken account of the notorious fact that newspapers tend to publish sensational articles about acts of gross violence, rather than dull articles about mundane acts. The country information the Tribunal relied upon in this case was confined to newspaper articles, and a report from the NGO Free Muse, which referred to a decapitation. The Tribunal did not refer to sources of country information that might have given a more thorough review of the activities of the Mahdi Army, such as the United States State Department, or the Department of Foreign Affairs and Trade.
I am very conscious of:
a)the caution that must be exercised in forming the view that a Tribunal decision is legally unreasonable such that the Tribunal has made a jurisdictional error;
b)the need to eschew merits review; and
c)the Tribunal’s wide discretion in selecting and weighing country information.
However, it seems to me that, in this case, the Tribunal has crossed the line, for the reason given. While I found above that the Tribunal’s reasoning regarding the Mahdi Army was not illogical or irrational, it is the case that the Tribunal’s reasoning was very probably based on a false premise, being the notion that, when the Mahdi Army took action, it was always very violent.
The issue about how violent the Mahdi Army would have been between 2004 and 2009 was central to the Tribunal’s reasoning process, and led to other important findings, such as that the stabbing in 2010 was not carried out by a Shia militia.
While the Tribunal did not rely only on its view that the Mahdi Army would only have engaged in acts of gross violence, some of the other matters that led to its credibility findings were questionable as well. The finding in the first bullet point of paragraph 41 of the Tribunal’s reasons for decision that the applicant gave inconsistent evidence about when his problems started might be thought to involve splitting hairs, and not be a key inconsistency, as the Tribunal thought. The finding in the third bullet point of paragraph 41 of the Tribunal’s reasons for decision that the applicant’s evidence was vague might be thought to be pedantic, in circumstances where the applicant claimed that he closed and reopened his shop many times.
The Tribunal found that there was not a real chance of the applicant being seriously or significantly harmed by reason of his previous ownership of a music shop. While that finding was certainly based in part on the fact that the applicant had sold the shop, it was also based in part on the fact that the applicant had not been threatened or harmed in the past in connection with the music shop. Consequently, the jurisdictional error identified above also infects that finding.
In rejecting the applicant’s more general claims about being targeted by the police and as a Sunni, the Tribunal specifically said at paragraph 45 of its reasons for decision that:
… I have taken into account my findings that he or his family have not been targeted in the past and are not of any adverse interest to the Mahdi Army or any other Shia group or the authorities.
In other words, the Tribunal relied on its unreasonable finding in relation to the music shop to reject another of the applicant’s claims. Therefore, the unreasonable finding infected the decision generally.
Conclusion
As the applicant’s ground of review has been made out, the Tribunal’s decision will be set aside, and the matter remitted for determination according to law, with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 7 June 2019
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