FEDERAL COURT OF AUSTRALIA

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.05 of the Federal Court Rules the time in which the appellant may file the amended notice of appeal is extended to 4.00pm on the day which is the fifth business day after the date on which these reasons are delivered.

2.    The appellant has leave to rely upon the amended notice of appeal.

3.    The appeal is allowed.

4.    The orders made by the primary judge on 30 April 2018 are set aside and in lieu thereof it is ordered that:

(a)    A Constitutional writ be issued to the Immigration Assessment Authority quashing its decision of 18 October 2017 and directing it to determine the appellant’s application according to law and in accordance with these reasons.

(b)    The first respondent before the Federal Circuit Court must pay the appellant’s costs of the application to that Court.

5.    The first respondent pay the appellant’s costs of the appeal to this Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    In this matter there are three main questions requiring consideration. They are:

(a)    Whether the appellant ought to be granted an extension of time in which to appeal from a judgment of the Federal Circuit Court (FCC) delivered on 30 April 2018?

(b)    Whether, if the extension is granted, the appellant ought to be entitled to rely upon a proposed Amended Notice of Appeal which raises a new ground of appeal?

(c)    If leave is given to rely upon the Amended Notice of Appeal, whether the appeal ought to be allowed?

Background and claims

2    In this discussion of the appellant’s background and the claims which he advanced, we have taken care to remove those details which might allow him to be identified by anyone who is familiar with his circumstances.

3    The appellant is an Iraqi citizen who arrived in Australia as an unauthorised maritime arrival on 19 August 2013. He is a Shia Muslim from Dhi Qar province.

4    On 11 October 2016, he made an application for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) (the Act). He claimed to fear harm and persecution from the Mahdi Army on the basis that he had previously worked as a police officer in the Iraqi Ministry of Interior (MOI) which had worked with officers of the US Army in Mousal and Baghdad. He said that he had worked in the MOI for almost one and a half years during which time he was required, on occasion, to follow the orders of members of the American Army. During this time he was subjected to severe and dangerous situations and came close to being killed on a number of occasions. His substantive claim was that, towards the end of 2006, the Mahdi Army had threatened to kill him because he was an infidel. The basis of the threat, so he said, was that in their view because he worked in the MOI, which had worked closely with the Americans, he was an apostate and had committed unfaithful and unreligious acts. These threats, so he said, were conveyed to him through his brother.

5    The appellant claimed he left his job with the MOI at the beginning of 2007 due to the threats which had been made against him. He said that he went to live in a town which was a distance of some 20 to 25 kilometres from his home town and in a rural area surrounded by farms. In particular he said:

I began working in those farms and distant (sic) myself from my family in order to avoid danger and stay safe.

During these years I remained in hiding and I lived in fear for my safety and my family’s safety.

6    The appellant further claimed that in 2012, his father was shot and killed by the Mahdi Army. He said that the killing was connected to the threats he had received in 2006 and because the Mahdi Army wished to punish him. He further said he remained in hiding until he made arrangements to flee Iraq, which he subsequently did. He says he fears that he will be killed if he is returned to Iraq where there is sectarian violence throughout and he fears harm from the Mahdi Army or militia or other controlling Shiite Muslims in Iraq.

7    By a decision on 16 August 2017, a delegate of the Minister refused to grant the applicant a protection visa. The decision was immediately referred to the Immigration Assessment Authority (the Authority).

8    On 22 August 2017, the Authority wrote to the appellant and indicated that his application had been referred to it for review. The letter explained to him that there were limited circumstances in which it might consider new information. However, the letter also provided an attached fact sheet and Practice Direction informing him how he might go about providing new information or making submissions. The appellant responded in a document dated 11 September 2017, the contents of which were referred to and considered by the Authority in its reasons.

9    On 18 October 2017, the Authority affirmed the delegate’s decision to refuse the grant of a protection visa to the appellant. It made factual findings in accordance with much of the appellant’s claims. In particular, it accepted he worked with the MOI and in work which came under the supervision of the US/Coalition forces and that his job involved a considerable threat of harm or loss of life.

10    In relation to the alleged threat from the Mahdi Army, the Authority observed that it was claimed to have been made via the appellant’s brother. It identified that the appellant claimed his brother was in a particular town one day when he was approached by three men who identified him as the appellant’s brother. The three men allegedly said that the appellant worked with the Americans and should be killed. They gave the brother a letter for the appellant which was allegedly an order from a religious court directing that he be killed. The appellant claimed the threat was relayed by his brother via telephone in October or November 2006. When the appellant was asked how the men had identified his brother, he replied that he did not know. He also said that he never received the order from the religious court.

11    In its reasons for rejecting the allegation that the appellant had received the threat, the Authority noted that the appellant had never claimed to have lived or worked in the town where the threat was relayed to his brother by three men and, at the time, the appellant was in Baghdad which was some distance away. The Authority said it did not consider it was credible that three Mahdi Army militia would encounter and recognise, in that town, the brother of an officer from the MOI who came from some other town and who was then stationed in Baghdad. It also did not think it credible that, at the time they encountered the brother, they were holding a religious court order for the appellant. Consequently, it did not accept the appellant had received any threat from the Mahdi Army or any other militia at that time.

12    The Authority also found that the appellant was of no interest to the Mahdi Army or to other militia groups since leaving the MOI. In this respect, a critical passage in its reasons is paragraph 9, which reads:

The applicant left the [MOI] at the end of 2006. He went to live in [name deleted], a rural area some 20 kilometres from his home town, where many of his relatives lived. He worked on farms for several years without receiving any threats or adverse attentions. Contemporaneous country information indicates that the Lower South area – in particular Basra but also [name deleted] and [name deleted] – witnesses regular low-intensity attacks against Coalition/Security Forces and oil facilities, piracy and banditry. Although armed groups also targeted supporters or associates of the Iraqi Government, such as politicians and Government workers and their families, the referred information does not support the conclusion that former members of the [MOI] were in any way targeted. I conclude that the applicant was not of interest to any militia groups once he left the police force. The applicant also claims that “my house [name deleted] was always followed and watched according to my family's accounts”. As I have found that he was of no interest to the Mehdi Army or other militia groups I do not accept this claim.

13    The Authority went on to accept that the appellant’s father had been shot and killed. However, the perpetrators had not been identified and, consequently, it was not satisfied he had been killed by the Mahdi Army because they had mistaken the father for the appellant or had killed the father because they were unable to locate and kill the appellant. The rejection of the appellant’s claim as to his father’s death was supported by the Country Information from DFAT which concluded there was no evidence that families of individuals associated with the government were targeted by armed groups as a matter of course. The father was not a collateral victim of an attack perpetrated upon the appellant.

14    The Authority also recorded that the appellant left Iraq some ten months after his father’s death and, in response to a question, he had told the delegate that nothing else happened to him in the period between his father’s death and his leaving the country.

15    Under the heading, “Well-founded fear of persecution”, the Authority stated:

I have considered whether the applicant is at risk of harm due to having been employed as a [MOI] officer and working with coalition/US Forces from 2005 to late 2006. I have not accepted that the applicant was in any way targeted by the Mehdi Army or other militia groups for his past actions or employment prior to his departure from Iraq in 2013. It has now been more than ten years since he was associated with the ISF and involved in any duties such as patrolling or manning checkpoints in Baghdad or Mosul.

16    In support of that conclusion the Authority referred to Country Information which eschewed the suggestion that former members of the MOI were targeted and, particularly, in areas not controlled by ISIS/Daesh. It added that given the passage of time since his resignation it was not satisfied the appellant would now be regarded as being associated with the MOI. It was also considered that there was only a remote risk the appellant would be subject to any adverse actions in the future given that the Mahdi Army and other militias are not part of the popular mobilisation forces, which is an umbrella group of mostly Shia militias over which the government claims control. Specifically, the Authority rejected the claim that the appellant’s father was killed by the Mahdi Army in 2012 due to his former employment.

17    Consequently, the Authority affirmed the decision of the delegate to refuse the grant of the protection visa.

The decision of the Federal Circuit Court

18    The appellant sought review of the Authority’s decision by the FCC. The matter was heard by the primary judge on 30 April 2018 who dismissed the application and delivered oral ex tempore reasons that day. Neither of the grounds advanced to that Court are sought to be agitated on appeal and there is no reason to discuss them further.

Extension of time

19    The draft Notice of Appeal was filed seven days outside of the time limited for appealing. As a result the appellant requires an extension of time under r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) in order to bring the appeal. Pursuant to that rule the exercise of the Court’s discretion will be guided by the length of any delay and any explanation for it, any prejudice which might be suffered by the respondent due to the delay, and the prospects of the appeal succeeding if an extension was granted: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ. In considering this latter criterion, generally, the Court should be satisfied that the proposed appeal should have such prospects of success as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [9].

20    In this case the essential reason for the failure to file a Notice of Appeal within time was the unavailability of the primary judge’s ex tempore reasons delivered. The appellant, who had appeared for himself before the FCC, was not able to ascertain and did not know why his application had been refused.

Reasons for delay explained

21    Very properly, the Minister has acknowledged that the delay in filing the draft Notice of Appeal was adequately explained by the appellant. In this respect the appellant was not represented before the FCC, but on 3 May 2018, being a few days after the handing down of the decision, he engaged solicitors to advise him on the prospects of success on appeal. The newly engaged solicitor emailed the primary judge’s Associate on 4 May 2018 seeking information as to when the written reasons of the judge would be given. The solicitor did not receive a reply to that email.

22    On 15 May 2018, the solicitor again emailed the primary judge’s Associate to follow up on the previous email. In this subsequent email the solicitor again sought an estimate as to when the written reasons would be provided. The solicitor did not receive a response to that email.

23    That same day the solicitor telephoned the Associate to the primary judge and left a voicemail message in relation to the judge’s revised written reasons. The solicitor did not receive a response to that telephone call or message.

24    The time in which the appellant was entitled to appeal expired on 21 May 2018: r 36.03 of the Federal Court Rules.

25    On 22 May 2018, the solicitor again telephoned the Associate to the primary judge to ascertain when the written reasons would be available. The solicitor was informed by a person, believed to be a Registrar of the FCC, that the Associate had informed the Registrar the reasons would be handed down during the week beginning 28 May 2018. The Registrar confirmed to the solicitor that the Associate had received the emails. After that conversation the solicitor again emailed the primary judge’s Associate and confirmed the conversation had with the Registrar. Mention was made of a possible extension of time in which to appeal. There was no immediate response to that email.

26    On 23 May 2018, the solicitor again emailed the Associate to the primary judge to follow up on the previous day’s email. Ten minutes later the solicitor received an email from a person identified as the Deputy Associate to the primary judge attaching the Reasons for Judgment delivered on 30 April 2018.

27    The Minister did not challenge any of the evidence adduced by the solicitors for the appellant. The evidence supports findings that the appellant’s solicitors took timely and reasonable steps to obtain a copy of the primary judge’s written reasons within the period for filing a notice of appeal to this Court, but the FCC did not respond to the inquiries, or publish its written reasons to the applicant until after the time for appeal had expired. This had the consequence that he was required to seek the indulgence of the Court to file the appeal out of time.

28    The situation where the written reasons for judgment are not available to a litigant who wishes to consider appealing until shortly prior to or after the expiration of the appeal period is less than desirable. In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, the Full Court (Perram, Farrell and Perry JJ) said of such a situation:

[26] Thirdly, while the appellant was present in court when the primary judge gave an ex tempore (oral) judgment, he has given a reasonable explanation for the delay. Nor did the Minister suggest otherwise. The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. Where that may not occur, however, it should be borne in mind that FCR r 36.03(b) expressly envisages that the court appealed from may make orders deferring the commencement of the period within which an appeal may be instituted: see CTV15 v Minister for Immigration & Border Protection [2017] FCA 976 at [12]. It is also open, for example, to a Court to defer the date on which the final order as to costs is made until written reasons are published thereby achieving the same result.

29    Here, the cause of the failure to file the appeal within time was wholly outside the responsibility of the appellant. It could not be suggested that he ought to have filed an appeal without knowing whether he had any valid grounds for doing so. That would be contrary to the obligations of litigants and practitioners under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Further, it would be a contravention of s 48 of that Act, which requires legal practitioners to certify there are reasonable grounds for believing the migration litigation commenced by them (including appeals) has a reasonable prospect of success.

An extension of time in which to appeal ought to be granted

30    In the circumstances of this matter the Minister very properly conceded the appellant ought to be granted an extension of time in which to appeal. Such concession was in accordance with the well-entrenched convention that, in its conduct of litigation before the Courts, the Executive branch of government adopts the highest standards of professionalism and fairness befitting a State that adheres to the Rule of Law.

Leave to raise a new ground on appeal

31    Somewhat more relevantly, this Court must consider whether leave ought to be given to raise on this appeal the sole ground referred to in the draft Notice of Appeal. That ground was formulated as follows:

The Second Respondent (the IAA) failed to conduct a review as required by s 473DB(1) of the Migration Act 1958 by failing to consider an integer of the Appellant’s protection claims.

Particulars

(i)     The IAA, at [9] of its decision (Application Book page 274), found that among other things, after he left the police force at the end of 2006, the Appellant worked on farms for several years without receiving any threats or adverse attention and concluded that the Appellant was not of interest to any militia groups once he left the police force.

(ii)     The Appellant, at [9]­[12] of the Statement of Claim dated 10 October 2016, states that he was in hiding and that he ‘kept out of sight’ from early 2007 until mid 2013 (Application Book pages 170-171).

(iii)     In concluding that the Appellant was not of interest to any militia groups once he left the police force, the IAA did not consider the Appellant’s evidence that he was in hiding from the beginning of 2007 onwards, as set out at [9]-[12] of his Statement of Claim.

(iv)     The Appellant’s evidence that he had been hiding, at [9]-[12] of his Statement of Claim, was evidence that he had relocated and modified his behaviour to avoid persecution and was relevant to his claims to have a well-founded fear of persecution.

(v)     There were no findings or reasons indicating that the IAA had considered whether the Appellant had modified his behaviour out of a fear of persecution, or what would have happened to the Appellant had he not modified his behaviour.

(vi)     As a consequence of the matters set out in (i)-(v) above, the IAA failed to discharge its statutory task to conduct a review of the decision of the First Respondent’s delegate dated 16 August 2017.

32    The principles on which this Court exercises its discretion as to whether leave should be granted to raise a new ground on appeal are those identified in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588, 598–599 at [46]–[48] where the Full Court said:

In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

33    Although the determination of whether it is expedient in the interests of justice is not confined by limited criteria, in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 Madgwick J at [167] identified a number of matters which might bear upon that determination. They were:

 1)    Do the new legal arguments have a reasonable prospect of success?

 2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

 4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

 7)    If so, can it be justly and practicably cured?

 8)    If not, where, in all the circumstances, do the interests of justice lie?

34    In this matter, the essential question is whether there is any substantial merit in the proposed singular ground of appeal advanced in the draft amended notice dated 5 November 2018 which would render it in the interests of justice to grant leave to raise it on appeal despite it not having been raised below. The appellant was not represented before the FCC and he was not able to advance the argument which Counsel now seeks to advance for him.

The issue for consideration

35    The principal argument advanced is that the Authority failed to conduct the review required by s 473DB(1) of the Act because it failed to consider the integer of the appellant’s claim that, because of his fear of harm he had been in hiding from the Mahdi Army or other militia from when he left the MOI until he departed Iraq for Australia. In particular, he submitted that in considering that he was not of any interest to any of the militia groups once he had left the MOI, the Authority failed to take into account his claim to have modified his behaviour by going into hiding and working on farms some distance from where he had previously lived and by distancing himself from his family. The Authority considered the absence of ongoing threats was important to the question of whether he feared persecution. However in reaching that conclusion, it failed to take into account his explanation for the absence of threats; being the fact that he was in hiding.

36    Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] French , Sackville and Hely JJ held:

[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

37    Here, the appellant claimed that as a member of the ISF he was at risk of harm from militia forces including the Mahdi Army and he claimed that risk continued after he left the MOI. He claimed that he received word that an order had been made by a religious court which directed that he be killed. In his statement in support of his application he referred to the conduct in which he engaged after the alleged threat was received to avoid harm, being that:

(a)    He went into hiding in a camp maintained by the MOI for two to three months. He said that he was told that the police could not provide protection and that working for the MOI carried the risk of being subject to threats from the militias.

(b)    He left his job with the MOI at the beginning of 2007 as a result of receiving the threat.

(c)    He went to a town which was not his home where he went into hiding and kept out of sight.

(d)    He distanced himself from his family to avoid damager and to stay safe.

(e)    He remained in hiding for a number of years.

(f)    He remained in hiding when his father died and, because of his fear from the Mahdi Army, he did not attend his father’s funeral.

38    The above matters and, in particular, that the appellant went into hiding for an extended period, were considered by the delegate as the reasons for his determination reveal.

39    The Authority apparently did not appreciate that part of the appellant’s claim of fear of harm was that, because of it, he had been required to go into hiding from the Mahdi Army and other militias for a number of years. In its reasons the Authority identified that the appellant “relocated” to a named town after he received the alleged threat from the Mahdi Army. However, nowhere in its identification of the appellant’s claim does it identify that due to the threat he claimed he went into hiding and kept out of sight for an extended period and avoided contact with his family to the extent of staying away from his father’s funeral. Indeed, the formulation of this part of his claim as him merely “relocating”, actually misstates the essence of the allegation. Relocation suggests that harm might be avoided merely by changing locations. That is quite different to hiding which involves the essential element of concealment in order to avoid detection by pursuers.

40    In the course of rejecting the appellant’s claim of fear of persecution the Authority made the significant finding that he was of “no interest to the Mehdi Army or other militia groups” once he left the MOI. Pivotal to that conclusion was the factual finding that he worked on farms “for several years without receiving any threats or adverse attentions”. It is also obvious that the Authority relied upon that for concluding that he was not “in any way targeted by the Mehdi Army or other militia groups for his past actions or employment prior to his departure from Iraq”. It follows that a central element of the Authority’s decision was that the absence of any adverse attentions or threats from the Mahdi Army or other militia evidentially supported the conclusion that no threat of persecution existed.

41    However, an integral integer of the appellant’s claim was that, although he was at risk of harm from the Mahdi Army or other militia, he had avoided interaction with them since 2007 by going into hiding. In this respect, the necessarily implicit claim was that he had not received threats since 2007 due to his ability to conceal himself from his persecutors. By considering the absence of threats to the appellant as indicative of the absence of any risk of harm without taking into account the obvious explanation for that absence, the Authority failed to consider an important integer of the appellant’s claim. The centrality of this integer necessarily rendered the Authority’s omission to consider it a jurisdictional error. That is necessarily so in circumstances where the Authority took into account the lack of interaction with the Mahdi Army in that part of its reasons following the heading, “Well founded fear of persecution”.

42    Mr Johnson on behalf of the Minister submitted that the essential finding of the Authority was that the alleged threat conveyed to the appellant by his brother in November 2006 was not made, such that any argument or ground which followed from or was derivative on the existence of that threat, could not succeed. He also submitted that the determination of the Authority that the threat was not made was not founded upon its conclusion that the appellant had not been subject to threats since 2007, but on the implausibility of the circumstances in which it was alleged to have been received.

43    Although there was force in Mr Johnson’s submissions, they cannot be accepted.

44    In relation to the first, whilst the alleged threat made by the Mahdi Army was a central part of the appellant’s claim, it was not the only claimed source of his fear of persecution. As is apparent from the above discussion, he also feared persecution from other militia groups as well and he claimed to have been hiding from them as well. Although the main fear of harm was said to have emanated from the Mahdi Army threat, it cannot be said that, absent it, the appellant did not claim to fear persecution arising from his erstwhile employment by the MOI.

45    In relation to the second of the above submissions, it is by no means clear that the determination the appellant did not receive any threats after the commencement of 2007 did not play a part in the Authority’s conclusion that the threat in 2006 was not made. Although in the structure of the Authority’s reasons the conclusion that the threat was not made preceded and was separate from the conclusion that the appellant had not received threats from the Mahdi Army since 2006, it is a path fraught with danger to attribute to a decision maker the linear reasoning process which emerges from the manner in which a decision is expressed on paper. It would be wrong to assume that merely because the two issues are dealt with separately in the Authority’s reasons, the conclusion that there were no threats since 2006 was irrelevant to the conclusion that the threat in 2006 was not made. It cannot be said that if the Authority had turned its mind to the proposition that no threats had been received since 2006 was because the appellant had been in hiding and concluded that was so, it would necessarily have reached the same conclusion about the appellant not having received a threat from the Mahdi Army. At the very least, it cannot be said that if the Authority had turned its mind to this integer of the appellant’s claim there was no possibility of a different outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34, [31] per Kiefel CJ, Gageler and Keane JJ; [72] per Edeleman J; Nobarani v Moriconte [2018] HCA 36 [38].

46    Mr Johnson for the Minister further submitted that the findings in paragraph 9 of the reasons of the Authority (set out at paragraph [11] above) were broad enough to subsume consideration of the assertion that the reason the appellant had not received threats since the beginning of 2007 was that he had been in hiding. That submission also cannot be accepted. As we have identified, the Authority misconstrued this integer of the appellant’s claim. It recorded it as the appellant merely “relocating” to a new town which substantially diminished the steps which the appellant had taken to avoid detection by the various militia. Indeed, the Authority does not relevantly mention the fact of the appellant going into hiding and remaining isolated from his family. The conclusion that the appellant was of no interest to the Mahdi Army or other militia because he had not received threats or other attention from them since late 2006 is not a conclusion which can be made in the present case without giving active intellectual engagement with the specific question of whether that circumstance arose because he was concealing himself.

47    The appellant relied upon the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. However, there was nothing in the reasons of the Authority which suggested it considered the appellant would not be at risk in Iraq if he modified his behaviour in some respect. The decision is not relevant to the matter before the Court save, perhaps, that it reveals that action taken by an applicant to mitigate or avoid the risk of persecution is material to the question of whether they have a well-founded fear within the meaning of the Convention.

48    It is apparent from the above that there is substantial merit in the new ground of appeal propounded by the appellant in his proposed amended notice of appeal and that leave should be given to raise it on appeal despite the failure to raise it before the primary judge.

Conclusion

49    It follows that the Authority’s failure to consider the integer of the appellant’s claim that he avoided harm or receiving threats of harm from the Mahdi Army or other militia by hiding and remaining distant from his family was a jurisdictional error which invalidated the its decision.

50    The consequence is that the appellant should be granted an extension of time in which to file the amended notice of appeal for a period which expires five business days after the date on which these reasons are delivered. The appellant is given leave to rely upon the amended notice of appeal.

51    The appeal should be allowed. The orders made by the primary judge on 30 April 2018 should be set aside and in lieu thereof it should be ordered that a Constitutional writ should issue to the Immigration Assessment Authority quashing its decision of 18 October 2017 and directing it to determine the appellant’s application according to law and in accordance with these reasons. The first respondent before the Federal Circuit Court should pay the appellant’s costs of the application to that Court. The first respondent should pay the appellant’s costs of the appeal to this Court.

Associate:

Dated:    28 November 2018