FEDERAL COURT OF AUSTRALIA

CXS18 v Minister for Home Affairs [2020] FCAFC 18

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

BACKGROUND

1    The appellants are citizens of Iraq. In October 2012, the first appellant arrived in Australia as an unlawful maritime arrival within the meaning of the Migration Act 1958 (Cth). The appellant’s wife and older children, who are not parties to the appeal, arrived in Australia on 19 December 2011. The second appellant is the son of the appellant. He was born in Australia in April 2014.

2    The appellant lodged an application for a protection visa in February 2016 and an amended application which included his family, in April 2017.

CLAIMS

3    The appellant claimed that:

(a)    his uncle was killed in 1989 whilst imprisoned by the former Ba’ath regime;

(b)    in 1993, his father lost his job and was forced to leave Iraq and that the appellant and his family lived in Iran between 1993 and 2003; and

(c)    in the following year, he joined the Iraqi army, providing administrative support to the American army. His brother was also in the Iraqi army. He was stationed in Baghdad. The appellant’s wife and children lived with his father in Najaf.

(d)    in 2006, his father received a threat that if the appellant and his brother continued to work for the Iraqi army, his house would be bombed;

(e)    further threats were received between 2007 and 2009 and in 2010 the appellant’s father was shot and killed. The family realised that they could not stay in Iraq and his wife and children travelled to Australia, arriving in December 2011; and

(f)    in January 2012, the house in Iraq where his family had lived before leaving the country was bombed and destroyed. He claimed to fear harm as a member of the Iraqi army who had assisted the American forces during their occupation.

4    At an interview with a delegate of the Minister for Home Affairs in September 2017, the appellant discussed his claims. About a month later, the delegate refused the protection visa application. The appellant’s case was referred to the Immigration Assessment Authority for review under Pt 7AA of the Act. The appellant provided the Authority with written submissions in support of his claims.

THE AUTHORITY

5    The Authority accepted that the appellant’s family may have fled or had been evicted from Iraq in the early 1990s and that he lived and worked in Iran for about a decade before returning to Iraq. It also accepted that it was plausible that the appellant’s uncle had been killed by Saddam Hussein’s regime. Having regard to the passage of time, however, the Authority was not satisfied that there was more than a remote chance that the appellant would suffer harm now or in the reasonably foreseeable future because of his family’s return from a period of exile in Iran or because they would be imputed to have a political opinion supporting the fall of the Ba’ath regime or because of supporting the United States invasion.

6    The appellant’s service in the Iraqi army between 2004 and 2012 in a low-level administration role associated with recruitment was accepted. The Authority was willing to accept that the appellant may have had some contact with the United States and multinational forces (referred to in documentation as MNF-I/USF-I), but the Authority did not accept that the appellant had worked directly for the MNF-I/USF-I. The Authority also found that the appellant’s claimed level of involvement and responsibilities in relation to recruitment was inconsistent with country information.

7    The appellant’s father’s death in 2010 was accepted, but not that his father had received multiple threats or that he was killed because of the appellant’s position in the army. The Authority placed no weight on the death certificate in circumstances where the appellant’s evidence was that it reflected the advice that he gave authorities, rather than any independent verification and noted, in any event, that there appeared to be irregularities in the document.

8    Ultimately, based on inconsistencies in the appellant’s claims, the Authority did not accept that the father’s house had been bombed because of the appellant’s role in army recruitment and did not accept that the appellant had deserted the army.

9    The Authority was not satisfied that there was a real chance that if the appellant returned to Iraq he would suffer harm from the Islamic army, from The Islamic State of Iraq and the Levant (ISIL), or from any other Sunni or Shia armed groups because of his former employment in recruitment in the Iraqi army or his employment more generally.

10    That the appellant was a Shia Muslim was accepted. The Authority had regard to country information and did not accept that the appellant faced a real chance of harm as a result of sectarian or more general violence. It was also not satisfied that the appellant would suffer harm as an asylum seeker and/or a returnee from a Western country.

11    In considering claims by the appellant under the complementary protection provisions, the Authority relied on its previous findings to conclude that the appellant would not face a real risk of significant harm.

THE FEDERAL CIRCUIT COURT

12    The appellant was represented by counsel on an application for judicial review of the Authority’s decision in the Federal Circuit Court of Australia. In an ex tempore judgment published the following day, the primary judge considered the three grounds of the application for judicial review.

13    The first contention was the absence of a proper genuine and realistic consideration of a substantial, clearly articulated argument based on the material provided to the delegate. The primary judge dealt with this ground in the following way (at [17]-[37]). First, his Honour noted the claim that:

[The appellant] has well-founded fear of persecution in Iraq, in the form of a threat to his life and liberty, and is of real risk of suffering significant physical harassment or ill treatment, on account of his political opinion or imputed political opinion and membership of the following social groups:

   (i)    ‘Former member of the Iraqi Security Forces (ISF)’

(ii)    ‘Former member of the ISF working with the Multi-National Forces in Iraq/US Forces in Iraq (MNF-I/USF-I)’; and/or

  (iii)    ‘ISF deserter’.

And that:

Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion.

14    The primary judge noted the claim was followed by a footnote which referenced the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq (2012).

15    His Honour then addressed the Guidelines that were footnoted. Page 14 of the Guidelines was headed ‘Risk Profiles’. The subheading is ‘Individuals Associated with or Perceived to be Supporting the Iraqi Authorities and the Former Multinational Forces/US Forces’. It then reads:

Specific groups that may be associated with or perceived to be supporting the Iraqi authorities include the following: (a) government officials and employees; (b) former members of the Iraqi Security Forces (ISF); (c) Sahwa members, traditional tribal, religious and community members; (d) members of political parties; (e) individuals affiliated with the US forces, foreign governments, NGOs or international companies.

16    The primary judge observed that:

    when one reads the section about former members of the Iraqi security forces, there does not seem to be any actual reference to former members of the ISF. Rather, it talks of current members of the ISF;

    when one goes to the heading ‘Individuals Affiliated with the USF, foreign governments, NGOs or international companies’, what is said there is:

Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies as well as their families are at risk of being targeted by non-state actors for their imputed political opinion.

    However, what is written after that is this:

Since 2003 both Sunni and Shi’ite armed groups are known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, contractors and others affiliated with the MNF-I/USF-I, foreign governments, international companies or organisations reportedly to deter others from working for them.

17    His Honour observed that if one goes back to the claim that the appellant made in the summary, it was predicated upon him being a former member of the ISF, and a former member of the ISF working with the multinational forces. The Guidelines did not cover persons in his position; that is, even though there is a heading ‘Former Members of the ISF’, it simply talks about what is happening to current members of the ISF. His Honour considered that the category headed ‘Individuals Affiliated...’ did not cover his position of being a former member of the ISF working with the multinational forces because that category covered persons who were civilians who were working with the multinational forces and gives examples of that being embassy officials, interpreters and the like. The primary judge reasoned that the appellant was not a civilian who had some contact with the multinational forces. Rather, he was a member of the ISF. At [46] of the reasons the Authority said:

I have also considered whether the [appellant] being a former member of the ISF more generally gives rise to a real chance of harm. I accept the country information supports there is a real chance that current members of the ISF may suffer serious harm although I note it is reported that it is senior ISF members of Sunni background who are mostly targeted individually and that the risk increases significantly in ISIL controlled areas which Najaf is not.

However, apart from the [appellant] and his representative’s assertions, there is no information before me to suggest that former members of the ISF are targeted by the Islamic Army in Iraq, ISIL, or any other Sunni or Shia militias years after they have completed their military service. Given the large volume of media and human rights reporting on Iraq, I consider there would be country information available documenting such a trend if it were occurring. While the heading in the [Guidelines] refers to “former members of the Iraqi security forces” the discussion beneath that heading concerns attacks on current on-duty and off-duty members of the ISF.

I also note that the [appellant’s] brother who is also a former member of the ISF has continued to reside in Najaf for the six or so years the [appellant] has been absent from Iraq without being targeted.

Given these circumstances and, as it is now many years since the [appellant] ceased that employment, I am satisfied the chance is remote that if he returns to Iraq the [appellant] will suffer harm because he is a former member of the ISF now or in the reasonably foreseeable future.

(Emphasis and line breaks added)

18    The primary judge held that the Authority did engage with the argument that the appellant put forward because the Authority looked at what the appellant’s situation was with the ISF and made a specific finding at the end of [39] to the effect that he was a former member of the ISF in a ‘low level administrative role associated with recruitment’. He was, at all times when performing duties with the ISF, a person who, according to the Authority, was applying policies designed and overseen by others. It was unnecessary for the Authority to look at every little piece of evidence that the appellant had claimed supported his case when, clearly, on the evidence of the appellant the particular paragraph in the Guidelines could not have suited his particular circumstances.

19    The second ground argued in the Federal Circuit Court was that there was a constructive failure to exercise jurisdiction or a material finding for which there was no intelligible foundation in that the Authority adopted matters of impression expressed by the delegate which impression the Authority could not have independently formed. In relation to that ground, the primary judge noted (at [39]-[51]) that there was no dispute that the Authority must reach its own state of satisfaction as to whether or not the criteria for refugee or complementary protection has been satisfied. The Authority is engaged in a de novo consideration of the merits of the decision that has been referred to it. The primary judge noted that in the second sentence of [39], the Authority said:

When asked by the delegate about the part of the army he worked in, the [appellant] seemed to have difficulty naming his unit without referring to the supporting documents he provided.

20    The appellant observed that the Authority had an audio recording of the interview with the delegate, but that there was no video recording. Without actually seeing what had occurred during the interview with the delegate, the appellant asked rhetorically ‘how does the [Authority] know that the [appellant] seemed to have difficulty naming his unit without referring to the supporting documents’. The primary judge noted that (at Court Book 243) the decision of the delegate read:

At the interview the [appellant] was asked to describe his role in detail. The [appellant] stated that he worked for G1. When pressed on the precise name of his division as per his written application, the [appellant] was unable to answer. When the name was put to him as per his certificates, the [appellant] stated he did not know what 30 Iraq Brigade, Eighth Division meant. The [appellant] maintained that he worked for G1 and stated that he provided administrative support. He stated that his position required him to work with sensitive information, where he would collect the details of people in the Iraqi army and the information was provided to the Americans. The [appellant] claimed he would check the suitability of new recruits to the army.

(Emphasis added.)

21    The appellant suggested that the Authority had simply reworked what the delegate had said into the statement that appears in the second sentence of [39] of its decision.

22    The primary judge referred to a portion of the transcript of the interview (at pp 36-37):

The Delegate:    So, who were you collecting the information about? Which people were you collecting, um, so yeah, you said that it’s a database?

The [appellant]:    Database, yes. So, if you come into army, I need your name, like same interview now, your name, what history you have that…

The Delegate:    So, it’s for the army people, is that…

The [appellant]:    Yeah, yeah.

The Delegate:    Is it the American army?

The [appellant]:    No, Iraqi. But, because I speak like Arabic, I understand what any of the, you need work with the American, okay, must you do in this one, this one, this one, this one, this one. If everything is correct, we have a lot of the question with the system, if everything is right, I tell for the American. American, he say OK, we apply this one. Adil what do you think? I say very good, he apply for any person. I work with one American, his name Sergeant Budget, which is he very great, I remember he very great person. This time he tell how the dentist stay in Iraq, is Iraq very not safe for you, I say “no, I don’t care, I never care for anything”, but the bigger problem when he left, I found the bigger problem, bigger problem like my other family, like my near to me, big big big big big a huge, like.

The Delegate:    So, does your family have any, other than your brother, does your family have any other association or were they in the army? Anyone else?

The [appellant]:    No, just me and my brother.

The Delegate:    Just you and your brother?

The [appellant]:    Yes.

The Delegate:    Okay. So, you said that your father was doing something to do with, yeah?

The [appellant]:    He’s an engineer who worked for the mill factory. Big, big factory. In Najaf also he worked in Kabal, every time he changed it, every time, because he big minister. He was a high-ranking officer.

The Delegate:    An officer in what?

The [appellant]:    For flour, flour. He was working for the main mill company. He has been dismissed from his work during the Saddam’s regime, and then he has been returned back to his position.

The Delegate:    Okay. So, you said the division that you worked for was called G1, what was the particular name? Because in your application you provided more details about the names of that, so can you tell me more about the name of that?

The [appellant]:    I have here the certificate, do you have it?

The Delegate:    So, this one, you’ve got the team, yup? So, you’ve got here the 30th Iraqi Brigade, 8th Iraqi Division, G1. […] Do you know what that means?

The [appellant]:    No.

The Delegate:    No?

The [appellant]:    No. This one is a practice for me, he give me four months offsite, like near to Jordan, when I’m ready he bring it back.

23    The appellant argued before the primary judge that there is nothing in the transcript which would in any way suggest that there was any difficulty as to what the Authority had referred. In relation to this, the primary judge said (at [45]-[51]):

45.    … the real aspect here is this question by the delegate:    Okay. So you said the division that you worked for was called G1. What was the particular name?

[The appellant]:    What?

[The delegate]:    Because in your application, you provided more details about the names of that, so can you tell me more about the name of that?

And then the[appellant] says:

I have here the certificate. You have it.

46.    In reading the transcript, the [appellant] points out that there is nothing in the transcript which would in any way suggest that there was any difficulty as the [Authority] had talked about. But just in exactly the same way, there is nothing in the transcript that would lend me to be able to corroborate this this [sic] statement by the delegate:

When pressed on the precise name of his division as per his written application, the [appellant] was unable to answer. When the name was put to him as per his certificates, the [appellant] stated he did not know what 30th Iraqi Brigade, 8th Division meant.

47.    It seems to me that the transcript is not a full answer, because the transcript does not seem to suggest what the delegate has said either. But both the delegate and the [Authority] have said in their respective reasons that there was at the very least some sort of equivocation by the [appellant] when asked what would seem to be a fairly straightforward question for someone who had been in the position that the [appellant] claimed to have been in.

48.    Neither counsel had listened to the audio. I have not listened to the audio, and I have not been asked to listen to the audio. I cannot say whether there are pauses, or whether there are other aspects of the hearing such as shuffling the papers or the like that can be heard on the audio. But it does seem to me that if one listens to the audio, it may be that one could discern what it is that causes an inability to answer the question without reference to the document simply by what has been said and the context of what it is that can be heard.

49.    This may be speculation by me, but it seems to me that to take the view of the [appellant] is also quite speculative. Even though the affidavit of Mr Chong and then a subsequent affidavit from the Minister from Ms Ellis simply say that they have listened to the tape and they have come up with this transcript, neither one of them talks of what it is that they heard at the time that this particular exchange took place.

50.    The [Authority], one must assume, has listened to the audio. The [Authority] have made a conclusion that – using the words of the second sentence in paragraph 39, when asked by the delegate about the part of the army he worked in, the [appellant] seemed to have difficulty naming his unit without referring to the supporting documents he had provided. That conclusion seems to me could not have been made simply by reading the reasons of the delegate. It is a conclusion that is made by the [Authority] rather than anyone else.

51.    There has not been shown to me that the conclusion reached by the [Authority] could not have been gleaned simply by listening to the audio. It is obvious to me that there is something else that has happened that is not reflective in the transcript for the delegate to have written what he has, and therefore also for what the [Authority] has written. They are two different conclusions, though obviously there is quite a deal of similarity in the conclusion, but it seems to me that such could easily have occurred by the [Authority] listening to the audio and the delegate actually being present to justify the conclusions that have been made. In these circumstances, I cannot see that any jurisdictional error has been made. Therefore, ground 2 also fails.

(Emphasis added.)

24    There was a third ground argued in the Federal Circuit Court, also initially included in the grounds of appeal in this Court, but since abandoned.

GROUNDS OF APPEAL

25    The appellant, having also abandoned a foreshadowed ground 1A, dealing with the question of whether or not the second appellant was in fact a fast track applicant, relied on essentially the same arguments, expressed in this Court as follows:

1.    The learned [primary judge] should have found, but did not find, that the [Authority’s] decision was vitiated by a constructive failure to exercise jurisdiction because the [Authority] did not give proper, genuine and realistic consideration to a substantial, clearly articulated argument based upon established facts, or overlooked evidence upon which the Appellants had expressly directed the [Authority’s] attention and which was centrally important to an express claim.

Particulars

1.1    Although finding the [appellant] had ‘exaggerated’ his role with the Iraqi Security Forces (ISF) and his involvement with the Multi.-National Forces in Iraq (MNF-I) of United States Forces in Iraq (USF-I), the [Authority] nevertheless accepted the [appellant] was a former member of the Iraqi Security Forces (ISF) in a ‘low-level administrative role associated with recruitment’ [40], ‘may have had some contact with MNF-I/USF-I’ [39], and ‘as an Arabic speaking employee he may also have had some face-to-face contact with potential recruits’ [39]. A link in the chain of reasoning was that ‘apart from the [appellant] and his representative’s assertions, there is no information before me to suggest that former members of the ISF are targeted by the Islamic Army in Iraq, ISIL, or any other Sunni or Shia militias, years after they have completed their military service.’ [46]

1.2    The [Authority] noted a heading at p.15 of the UNHCR Eligibility Guidelines for Assessing the International protection Needs of Asylum-Seekers from Iraq (2012) refers to ‘Former Members of the Iraqi Security Forces’ but that the text beneath ‘that heading’ concerned attacks on current members [46]. But the [Authority] overlooked the written submission of 3 October 2017 that ‘[c]ivilians (formerly employed or otherwise affiliated with the former MNF-I/USF-I ... as well as their families, are at risk of being targeted by non-state actors for their (imputed political opinion)’ footnoting p.16 of the UNHCR Eligibility Guidelines the passage headed ‘Individuals Affiliated with the USF-I, Foreign Governments, NGOs or International Companies’ the content of which passage examples instances of persecution of persons formerly employed by or otherwise affiliated with inter alia the former MNF-I/USF-I.

2.    The learned [primary judge] should have found, but did not find, that the decision of the [Authority] was vitiated by a constructive failure to exercise jurisdiction, or made a material finding of fact for which there was no intelligible foundation, because the [Authority] adopted as its own finding an impression expressed by the delegate which the [Authority] could not have independently formed from the ‘review materials’, or because there was no foundation at all for the adverse finding.

Particulars

2.1    The [Authority] found that it was destructive of the [appellant’s] credibility that ‘[w]hen asked by the delegate about the part of the Army he worked in[,] the [appellant] seemed to have difficulty naming his unit without referring to the supporting documents he had provided’ [39]. The ‘review materials’, which included audio but not video, disclosed no such fact.

2.2    On the other hand, the delegate’s reasons expressed the delegate’s impression that ‘[w]hen pressed on the precise name of his division as per his written application, the [appellant] was unable to answer.’ The [Authority] was required to bring it [sic] own mind to bear on the review materials. It was erroneous for it to abdicate the fact-finding task to the delegate in any material respect.

THE APPELLANT’S CONTENTIONS

Ground 1

26    In support of appeal ground 1, the appellant relies upon Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 per Gummow and Callinan JJ (at [24]-[26]), Hayne J agreeing (at [95]), where the High Court held that a failure to respond to a substantial, clearly articulated argument relying upon established facts may amount to a constructive failure to exercise jurisdiction. The failure can be understood as either a basis for inferring that the claim was overlooked or a considerably broader requirement of giving ‘proper, genuine and realistic consideration’ of material matters raised by an applicant. Overlooking centrally important evidence may be a constructive failure of jurisdiction: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J (at [97]-[98]).

27    In this instance, the appellant expressly claimed in writing a fear of harm as a former member of the Iraqi Security Forces (ISF) working with the MNF-I/USF-I in Iraq. The claim was particularised in his written submissions to the delegate of 3 October 2017 in the following terms:

Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion.

(Citations omitted.)

28    A footnote to this claim took the Authority to the source of the extracted text commencing at p 16 of the Guidelines. At pp 16-17 of the Guidelines commences a passage sub-headed ‘e) Individuals Affiliated with the USF-I, Foreign Governments, NGOs or International Companies’. In the text following this introduction in the Guidelines, the following appears with emphasis added by the appellant in his written submissions before this Court:

Civilians (formerly) employed or otherwise affiliated with the former MNF-I/USF-I or foreign governments, NGOs or international companies, as well as their families, are at risk of being targeted by non-state actors for their (imputed) political opinion. Since 2003, both Sunni and Shiite armed groups are known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, subcontractors and others affiliated with the MNF-I/USF-I, foreign governments, international companies or organisations, reportedly to deter others from working for them.

Ahead of the full USF-I withdrawal from Iraq, achieved by mid December 2011, advocates and Iraqis (formerly) employed with the US military raised concerns about being left without protection. There are fears that employee records maintained by the USF-I may have leaked to armed groups. Perpetrators of violence against Iraqis affiliated with the MNF-I/USF-I are both Sunni and Shi’ite armed groups. It is reported that there were no contingency plans to provide emergency protection to former Iraqi employees after the USF-I withdrawal.

…

(Citations omitted.)

29    The appellant notes that in the Authority’s reasons it rejected as implausible the claim that the appellant had worked ‘directly’ for the United States and multinational forces. It was, however, willing to accept that between 2004 and 2012 the appellant ‘served in the Iraqi army in a low-level administrative role associated with recruitment’. Importantly, as noted above, the Authority found (at [46]):

I have also considered whether the [appellant] being a former member of the ISF more generally gives rise to a real chance of harm. I accept that country information supports there [sic] is a real chance that current members of the ISF may suffer serious harm, although I note it is reported that it is senior ISF members of Sunni background who are mostly targeted individually and that the risk increases significantly in ISIL controlled areas, which Najaf is not. However, apart from the [appellant] and his representative’s assertions, there is no information before me to suggest that former members of the ISF are targeted by the Islamic Army in Iraq, ISIL, or any other Sunni or Shia militias, years after they have completed their military service. Given the large volume of media and human rights reporting on Iraq I consider there would be country information available documenting such a trend if it were occurring. While a heading in the 2012 [Guidelines] refers to ‘Former Members of the Iraqi Security Forces’ the discussion beneath that heading concerns attacks on current on-duty and off-duty members of the ISF. I also note that the [appellant’s] brother who is also a former member of the ISF has continued to reside in Najaf for the six or so years the [appellant] has been absent from Iraq without being targeted. Given these circumstances, and as it is now many years since the [appellant] ceased that employment, I am satisfied the chance is remote that if he returns to Iraq the [appellant] will suffer harm because he is a former member of the ISF now or in the reasonably foreseeable future.

(Emphasis added.)

30    Pages 15 and 16 of the Guidelines were footnoted by the Authority for its findings at [46] expressed above. The appellant complains that contrary to the finding that there was ‘no information to suggest that former members of the ISF were targeted’, there was in fact exactly that information before the Authority, spelt out in precisely those terms on pp 16-17 of the Guidelines as referred to (at [28]) above. The appellant accepts that the Authority was quite right in its observation that the information in the Guidelines beneath the heading ‘b) Former Members of the Iraqi Security Forces (ISF)’ (at pp 15-16) appeared to deal exclusively with attacks on current, not former, on duty and off duty members of the ISF. The sub-heading was discordant with the substance of the Guidelines.

Ground 1 – consideration

31    It must be noted, that of [46] of the Authority’s reasons, when it spoke of ‘no information’, this phrase was importantly qualified. It was expressly dealing with the absence of information of danger ‘years after’ military service has been completed. The sentence reads:

However, apart from the [appellant] and his representative’s assertions, there is no information before me to suggest that former members of the ISF are targeted by the Islamic Army in Iraq, ISIL, or any other Sunni or Shia militias, years after they have completed their military service.

(Emphasis added.)

32    It was, of course, at the time of the Authority’s reasoning, years after the appellant had completed his service.

33    With that qualification, the observation by the Authority was correct.

34    It is also important to appreciate the way in which the matter was brought before the Authority. The primary judge cited Singh v Minister for Home Affairs (2019) 267 FCR 200 (at [34]-[37]), setting out circumstances in which a failure to consider a claim or an integer of a claim or a critical piece of evidence may constitute jurisdictional error. The statements of principle appearing in Singh are reflected also in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 per Bell, Gageler and Keane JJ (at [13]) and Nettle and Gordon JJ (at [105]), where their Honours said that:

13    Amongst the obligations to be observed by the Tribunal in the conduct of the review which are implicit in the scheme of Pt 7 is the obligation to reconsider the merits of the decision under review “in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself”. That obligation is fundamental to the nature of the review for which Pt 7 provides. Whilst it is for the Tribunal to assess the relevance of, and the weight to be attributed to, any item of evidence, the Federal Court has properly recognised that the Tribunal would fail to perform its duty of review if it failed to take account of cogent evidence providing substantial support to the applicant’s case, including any such evidence contained in a document or report provided to it by the Secretary, in the same way that the Tribunal would fail to perform that duty if it failed to take account of a substantial and clearly articulated argument advanced by the applicant in support of that case.

…

105    Fifth, the Tribunal in the conduct of the review must take account of any substantial, clearly articulated argument advanced by an applicant in support of their case.

(Citations omitted.)

35    That recognised, it is doubtful that the requirement that the decision-maker give ‘proper, genuine and realistic consideration’ to a particular matter as emphasised in ground 1, adds anything to the statement of principle. Indeed, generally speaking, that language is now thought to be unhelpful because it is apt to cause a court exercising its judicial jurisdiction to elide the distinction between judicial review and merits review: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ where there Honours said (at [30]-[32]):

30    In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan’s case and said of the language of “proper, genuine and realistic consideration”:

“That which had to be properly considered was ‘the merits of the case’. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.”

31    The first and second respondents contended that the Tribunal’s treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal’s statutory duty to review. It was submitted that the Federal Court’s findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.

32    The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of “proper, genuine and realistic consideration” to register the Court’s response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.

(Citations omitted.)

36    In SZRKT, Robertson J said (at [111]-[112]):

111    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at 69 above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

112    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. …

(Citations omitted.)

37    There is no doubt that the Authority did consider the appellant’s claim to fear harm on account of being a former member of the ISF. It directly considered that claim and rejected it in part (at [46]) because there was no evidence that former members of the army were targeted years after service. There is no doubt that the Authority referred to the Guidelines as part of the country information on which it relied in its analysis (at [46]). The fact that the Authority did not draw from the Guidelines those inferences urged by the appellant, but rather drew other inferences, does not demonstrate error. The degree of weight to be attributed to any particular piece of country information is a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]).

38    Further, the passage relied upon at p 16 of the Guidelines was not referred to in the written submissions to the Authority, but simply the subject of a footnote in submissions made to the delegate. The Minister contended that the Authority could hardly be expected to engage in a line by line or footnote by footnote refutation of every single matter which had been raised by the appellant before the delegate. This submission is correct, particularly in circumstances where it was not clear that the passage concerned would have any bearing on the appellant. Despite the passage at p 15 of the Guidelines referring in its heading to ‘Former Members of the Iraqi Security Forces (ISF)’, what it really deals with in the substance appearing below the heading is current members. That discussion was not applicable to the appellant. As to the passage the appellant presses from pp 16-17 of the Guidelines, (set out at [28] above) while the expression ‘[c]ivilians (formerly) employed’ may be ambiguous as potentially including those who were formerly engaged in a military capacity but are now civilians, the Authority had already found that the appellant had not been ‘employed or otherwise affiliated’ with the international forces, holding that the appellant did not work ‘directly’ with international forces albeit that he may have had some contact with them through his work for the Iraqi army. The connection is tenuous and, more importantly, as the Authority correctly found, there was no evidence of associated risk years after the appellant’s connection. For those reasons, the information on which the appellant now focusses cannot be considered ‘substantial’ or ‘consequential’ in the sense discussed by Robertson J in SZRKT (at [111]-[112]).

39    Ground 1 cannot succeed.

Ground 2

40    The appellant stresses that the Authority is required to reach its own state of satisfaction in discharge of s 36(2)(a) and s 36(2)(aa) of the Act. By s 473DB(1) of the Act, the review contemplated by s 473CC(1) consists of an examination of the ‘review material’. It is true that that review material includes the delegate’s decision, but the Authority ‘is engaged in a de novo consideration of the merits of the decision that has been referred to it’ as discussed in many cases including Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 per Gageler, Keane and Nettle JJ (at [17]), Gordon J (at [85]) and Edelman J (at [92]). As it is a de novo consideration, it would be a constructive failure to exercise jurisdiction to the extent that the Authority did not bring its own mind to bear on a factor which it is required to consider: LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 (at [5]). This much was common ground before the primary judge and on appeal.

41    There was some reference in oral argument to the content of a submission made to the Authority on behalf of the appellant. It made reference to a statement by the UNHCR that was identified only by a webpage reference. Following the hearing, counsel confirmed that the reference was to a 2016 UNHCR report and not to the Guidelines. The 2016 UNHCR report was not accepted as new information by the Authority. The Authority's finding in that respect is not challenged. Ground 1 is confined to the Authority's reasoning concerning the Guidelines. Therefore, matters in the 2016 UNHCR report could not support ground 1.

42    The Authority did not find the appellant to be entirely credible. The appellant contests the reasoning for this conclusion.

43    One reason supplied for that subordinate finding was where the Authority said (at [39]):

While the [appellant] has consistently made the claim, I have doubts about him having been employed in recruitment in the Iraqi Army for eight years. When asked by the delegate about the part of the Army he worked in the [appellant] seemed to have difficulty naming his unit without referring to the supporting documents he had provided. Further to his vagueness, the supporting documents he suggests corroborate his Army service do not allay my concerns. Country information indicates counterfeit documents are prevalent and cheaply available in Iraq, and the [appellant] has given evidence that he has expertise in computers and printing. These factors combined raise doubts in my mind as to these documents’ authenticity and I attach little weight to the Iraqi National Guard Basic Training Course certificate and the Iraqi Ministry of Defense Enlisted ID Card. I attach no weight to the ‘Team Renegade’ award which I note is undated and vague. It doesn’t make clear who the team are or what the [appellant] did to contribute to that team’s success. However country information confirms that from 2003 the American administration in Iraq dissolved Saddam’s Army as part of a process of ‘de-Baathification’ and rapidly sought to rebuild the Army anew. And in this context I am willing to accept that for a period between 2004 and 2012 the [appellant] served in the Iraqi Army in a low level administrative role associated with recruitment. I am also willing to accept: that through his employment he may have had some contact with the MNF-I/USF-I, although I note that the American forces drew down over several years and the last forces left Iraq by December 2011; that as an Arabic speaking employee he may have had some face-to-face contact with potential recruits; and that his brother may also have worked in an administrative capacity in the Iraqi Army. However I consider the [appellant] has exaggerated his role in the Army.

(Emphasis added, citations omitted.)

44    The delegate’s reasons contained a very similar passage:

At interview, the [appellant] was asked to describe his role in detail. The [appellant] stated that he worked for G1. When pressed on the precise name of his division as per his written application, the [appellant] was unable to answer. When the name was put to him as per his certificates, the [appellant] stated that he did not know what 30th Iraq Brigade, 8th Division meant. The [appellant] maintained that he worked for G1 and stated that he provided administrative support. He stated that his position required him to work with sensitive information where he would collect the details of people in the Iraqi army and the information was provided to the Americans. The [appellant] claimed that he would check the suitability of new recruits to the army.

(Emphasis added.)

45    The Authority confirmed it had available to it audio of the entry interview. It may be accepted there was no video. There is no reference to any video of the interview with the delegate. There is no suggestion that there was video available. The relevant passage of the interview to which reference was made by both the delegate and the Authority is set out in part above (at [22]), but it continues a little further on the topic:

 [The delegate]:        Training?

[The appellant]:    Yes, this is training. But must I pass, I passed it. You understand?

[The delegate]:    Yes, I understand, yup, but I’m asking, so this particular 30th Iraqi Brigade, 8th Iraqi Division, G 1, was that... So I’m asking was that part of G1?

[The appellant]:    Yes, but the ... My position, G1, within the Iraqi army division which has sequence numbers.

[The delegate]:    So, why don’t you know what this is, if it’s on your certificate and I’m asking you what does that mean, and you don’t seem to know what it is?

[The appellant]:    Okay. When I started working with the Americans, I had not been a member of the Iraqi army by then, ICC. Just the one, it’s so long to tell. Because we start with the American, we never like make it like “Faqailua”, something protect, because we small, when we make it huge, he, the American, he put it someone like you work with this one, you work with this one, do you understand this one?

[The delegate]:    Well, I, from what you’re telling me, my understanding is that you started with a small team, and then people started and off you go ...

[The appellant]:    Yes, where is the people bigger, he make it like you... We were recruited to belong into a specific division, and we were recruited and organised by the Americans. When I’m started with the Americans, way before, I’m work with Alpha, Bravo, Delta and another thing I forget. Four, four. But more people coming, the more it became bigger, the recruitment, that’s when we were then assigned to different divisions. Is good?

[The delegate]:    Yup, okay. So, who did you report to, who was your manager, what was their name, your commander?

[The appellant]:    Sergeant, sergeant. Sergeant Budget. He worked with me in G1. He American I think, yeah American.

[The delegate]:    Did you have anyone in the Iraqi army that you had to report to?

[The appellant]:    Yes, yes.

[The delegate]:    And what was their role?

[The appellant]:    Me, I was at the rank which has to report to the Americans, but him, the Iraqi officer, he has to report to someone else, and he was the rank of Team Management. But I’m director with the American, because my database, every time the Sergeant Budget he do it with me, he never looks to him. Like this is system American in work. Like bigger he have different thing, different work, me smaller like sergeant, with the sergeant because I’m sergeant, he says you know we work together. The big one he work with big one, like this, like this. This is army in Iraqi.

[The delegate]:    Okay, so just explain to me on a general day, what would you do, what was your role when you would go to work, what happened?

[The appellant]:    Six in the morning, we wake up, like we push everything back, for army, we start breakfast, 6:30. 7 o clock we start to office. We start to office, like and then we contact the person who is there. I took the all of accounting who has attended to the court, to the assembly area. Because we four section, Alpha, Bravo, Delta, some, I forget the fourth name, I connect with everyone, like calling for, with the internet, who’s worked today, who’s no. I recorded who was absent and who was present. This is normal, this is every day. Every day I will do it this way.

[The delegate]:    Okay, yup. Was that your entire role, or did you do anything else?

[The appellant]:    No, well I have more.

[The delegate]:    Yup, please, tell me.

46    The appellant argues that the suggestion that the transcript reveals that he seemed to have difficulty naming his unit without reference to supporting documents is entirely without foundation. Additionally, he says the qualification ‘without reference to the supporting documents’ makes sense only as a visual observation. There is no way the Authority could have made that observation unless it had also interviewed the appellant or had interview video, which it did not. The better inference, it is argued, is that the Authority has simply adopted the expressed observation of the delegate and that the adoption of a visual observation of the delegate as a reason for disbelieving the appellant involves an excess of jurisdiction.

47    It is also argued that the primary judge erred in dismissing this ground on the basis of what his Honour conceded was speculation as to what the audio might have suggested. His Honour said (at [48]):

Neither counsel had listened to the audio. I have not listened to the audio, and I have not been asked to listen to the audio. I cannot say whether there are pauses, or whether there are other aspects of the hearing such as shuffling the papers or the like that can be heard on the audio. But it does seem to me that if one listens to the audio, it may be that one could discern what it is that causes an inability to answer the question without reference to the document simply by what has been said and the context of what it is that can be heard.

(Emphasis added.)

48    The appellant contends he raised a sufficient evidentiary basis in his evidence in chief for the relief he sought. That was implicit in the reasons of the primary judge (at [51]) that it ‘has not been shown to me that the conclusion reached by the [Authority] could not have been gleaned simply by listening to the audio’. It is argued that, in effect, his Honour imposed something akin to a criminal standard of proof so that the appellant could only succeed if all other hypothetical possibilities were excluded. If, in truth, the audio could have disclosed some wordless communication probative of the proposition that the appellant could not name his military unit ‘without reference to the supporting documents he had provided’ it was for the Minister to prove, not for the appellant to disprove. The appellant argues that the rule in Jones v Dunkel (1959) 101 CLR 298 applies to the Minister not adducing the appropriate material. It ought to be inferred, it is said, that the audio did not record any ‘shuffling of papers or the like’.

Ground 2 – consideration

49    It must be said that it is entirely doubtful whether Jones v Dunkel could have any application in the present circumstances. The appellant himself relies upon a transcript of the interview, which he has prepared from the audio supplied to him and in his possession. If any point were to be made by production of the audio of the interview it could have been made as easily by production of the audio to the Authority or to the primary judge by the appellant as by the Minister.

50    Is there satisfactory evidence on which the primary judge or this Court could conclude that the audio, which was available to the Authority was not listened to, but the Authority simply reached the same conclusion as the delegate? There is not.

51    True it is that the Authority does not expressly set out the fact that it has listened to the audio. Nonetheless, it was amongst the review materials which it had. It might be said that the reasoning of both the delegate and the Authority for expressing the view that the appellant could not name his unit without reference to the written materials was not particularly satisfactory or particularly fair when taken in isolation. And the questioning on that point was certainly not a model of clarity, but there is no evidence before this Court which would warrant a conclusion that the difficulty in recall relied on by the delegate and available for review by the Authority listening to the audio was an impression which was entirely ‘parroted’ by the Authority or otherwise irrational.

52    There was no onus on the Minister to produce the audio recording in evidence. It is the appellant who has the onus of demonstrating jurisdictional error: SZMTA (at [4], [41] and [46]). If the appellant wished to rely upon the audio recording in order to support a submission that the factual observation about a difficulty in recall was unreasonable or irrational or simply copied from the delegate, it was open to the appellant to produce the audio recording and to demonstrate why this was not so.

53    For this reason, the conclusion of the primary judge (at [51]) that ‘it has not been shown to me that the conclusion reached by the [Authority] could not have been gleaned simply by listening to the audio’ is correct. There is nothing arising in this conclusion which involves a reversal of the onus. It continued to rest on the appellant to demonstrate excess of jurisdiction. Ground 2 must also fail.

CONCLUSION

54    The appeal must be dismissed with costs.

Associate:

Dated:    25 February 2020