Federal Court of Australia

Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the primary judge on 7 June 2019 be set aside, and in lieu thereof the following orders be made:

(a)    The First Respondent’s application filed on 4 December 2017 be dismissed.

(b)    The First Respondent pay the Appellant’s costs in proceeding MLG 2636 of 2017.

3.    The First Respondent pay the Appellant’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an appeal by the Minister for Immigration and Border Protection against a decision of a judge of the Federal Circuit Court. The primary judge’s decision set aside a decision of the Refugee Review Tribunal, which affirmed a decision of the Minister’s delegate to deny the First Respondent a Protection (Class XA) Visa.

2    Counsel for the First Respondent conceded two of the three grounds contended for by the Minister, but contended that the appeal should be dismissed nonetheless because the first ground was not made out, and in all the circumstances no “practical injustice” had resulted from the primary judge’s decision.

3    For the reasons set out below, we disagree, and the appeal will be allowed.

BACKGROUND

4    The First Respondent was born in Kuwait in 1974. He is a citizen of Iraq and a Sunni Muslim.

5    In April 2012, he arrived in Australia as an “irregular maritime arrival”, and was taken to Christmas Island. Three months later, he applied for a protection visa.

6    We set out below, in summary, his claims for protection.

(a)    After opening a music shop in his home city of Al Nasiriya in 2004, he was insulted, threatened and harassed by members of Shia militias, who demanded that he close his shop because the music was forbidden under Islamic law.

(b)    As the threats and harassment escalated, he was forced to close the shop for periods of time. He would reopen it once he felt safe again. This occurred on multiple occasions.

(c)    In 2010, he got into a fight in his shop with members of a Shia militia. He was stabbed with a knife, pinned to the ground and beaten unconscious.

(d)    This incident left him hospitalised for about one week. When he got out of hospital, he sold his shop.

(e)    In late 2010 or 2011, he was harassed and detained by members of the police who he believed were associated with the Shia militias.

(f)    He was detained on more than 10 occasions in relation to explosions or incidents that occurred in his local area.

(g)    In January 2012, he was arrested following an explosion in a nearby town. He was held for three to five days and beaten before being released.

(h)    In February 2012, he fled Iraq because he feared for his life.

7    On 21 February 2013, his visa application was refused by a delegate of the Minister. He sought review of the decision in the Refugee Review Tribunal, without success. On 3 May 2013, the Tribunal affirmed the delegate’s decision.

8    By application dated 4 December 2017, he applied to the Federal Circuit Court for review of the Tribunal’s decision. That application succeeded and, on 7 June 2019, the primary judge set aside the Tribunal’s decision and remitted the matter for reconsideration: see MZZMX v Minister for Immigration [2019] FCCA 1554.

appeal TO THIS COURT

9    On 5 July 2019, the Minister filed a Notice of Appeal from the Federal Circuit Court’s decision in this court. The grounds of appeal are as follows:

1.    The primary judge erred in finding that the Second Respondent (the Tribunal) made a finding that was irrational, illogical or legally unreasonable; namely, a finding that members of the Mahdi Army would only have sought to close down music shops with very violent acts (Ground 1).

    Particulars

(a)    The primary judge found (at [39]) that the Tribunal's finding that there was country information that indicated that Islamic extremists and the Mahdi Army acted in a very violent way to those involved in the music industry including store owners:

(i)    did not seem to have taken account of a supposed “notorious fact that newspapers tend to publish sensational articles about acts of gross violence” rather than “dull articles about mundane acts”; and

(ii)    did not refer to other sources of country information that “might have given a more thorough review of the activities of the Mahdi Army”.

(b)    The primary judge found 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” (at [41]).

(c)    The primary judge was neither required to make, nor in a position to make, findings as to whether any findings of fact made by the Tribunal were “false”.

(d)    It was a matter for the Tribunal to evaluate and assess the available country information and other material and to make findings of fact that were open on that information and material.

(e)    The primary judge should have found that it was open to the Tribunal to find that country information indicated that Islamic extremists and the Mahdi Army acted in a very violent way to those involved in the music industry including store owners. (The primary judge having otherwise found at [33]−[34] that it was not irrational or illogical or unreasonable in the legal sense for the Tribunal to find that it was implausible that the First Respondent had been targeted by the Mahdi Army because of his ownership of the music store.)

(f)    The primary judge engaged in impermissible merits review.

2.    The primary judge erred in making findings that were not open on the evidence (Ground 2).

    Particulars

(a)    The Appellant refers to and repeats particulars 1(a) and (b) above.

(b)    There was no evidence before the Second Respondent or the Court below to support the findings in particulars 1(a) and (b) above.

3.    The Appellant was denied procedural fairness (Ground 3).

    Particulars

(a)    The Appellant refers to and repeats particulars 1(a) and (b) above.

(b)    The primary judge determined the matter on a basis that was not argued by the First Respondent nor raised by the primary judge during the hearing.

10    On 23 August 2019, the First Respondent filed a Notice of Contention, in the following terms:

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 First Respondent ran a music shop from 2004-2010;

(b)    Found that Islamic extremists and the Mahdi Army acted in a 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 receiving more threats.

2.    The First Respondent concedes ground (3) of the Appellant’s Notice of Appeal in that the appellant was denied procedural fairness.

Ground 1

Tribunal’s reasoning

11    The Tribunal accepted that the First Respondent had owned a music shop. But it did not accept that he had been targeted by a Shia militia as a result, reasoning as follows (at [41]):

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 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.

12    The country information about violence towards music store owners was detailed at [33]–[37] of the Tribunal’s reasons. It was drawn primarily from newspaper articles. It stated that music shops had been burnt down or destroyed by gunfire, and musicians killed.

13    At [43] of its reasons, the Tribunal repeated its finding that the First Respondent did own a music shop. It did not accept, however, that he was ever threatened or harmed, or that he had sold his shop because of threats from the Mahdi Army. As its reasons at [41] make clear, the Tribunal found that if the First Respondent had been targeted by extremists, he would not have been able to ignore those threats and repeatedly close and reopen his shop. Further, when he reopened his shop, he would not have simply been told to close it again without escalation into violence. Those findings, together with the adverse credibility findings, led the Tribunal to conclude that the First Respondent had not been a target at all.

Primary judge’s reasoning

14    The primary judge accepted that it was rational for the Tribunal to find, on the basis of country information showing the Mahdi Army acted in a very violent way, that the First Respondent would not have been able to close and reopen his shop repeatedly and receive only threats. However, the primary judge found that this reasoning “was very probably based on a false premise, being the notion that, when the Mahdi Army took action, it was always very violent”.

15    The primary judge explained her conclusion that the Tribunal’s reasoning “was very probably based on a false premise” at [39]–[41], as follows:

39.    … 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.

40.    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.

41.    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.

Minister’s submissions

16    Ground 1 is that, contrary to the view of the primary judge, the Tribunal did not make a finding that was irrational, illogical or unreasonable.

17    The Minister submitted that the country information before the Tribunal showed that the Mahdi Army tended to use very violent acts against owners of music shops. It was therefore not illogical, irrational or legally unreasonable for it to conclude that, because the First Respondent had not been subjected to such acts over a six-year period, he had not been targeted by the Mahdi Army.

18    The Minister submitted that it is a matter for the Tribunal, not the court, to evaluate and assess the available country information and other material, and to make findings of fact on that basis, citing SZUEP v Minister for Immigration and Border Protection [2017] FCAFC 94; 160 ALD 35 at [27] (Perram, Robertson and Wigney JJ); DHA16 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1443 at [46] (Banks-Smith J).

19    The Minister submitted further that the Tribunal’s decision was not one “at which no rational or logical decision maker could arrive on the same evidence” (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130] (Crennan and Bell JJ) (SZMDS)). Rather, he submitted, the court below had “substitute[d] its view for that of the Tribunal as to the selection and weight to be given to country information”, which amounted to impermissible merits review.

First Respondent’s submissions

20    Counsel for the First Respondent submitted that the Tribunal’s decision was in fact irrational, illogical or legally unreasonable.

21    He pointed to the Tribunal’s finding that, as the Mahdi Army was very violent towards owners of music shops, the First Respondent would not have been able to reopen his shop repeatedly without violence had he really been targeted by them. He submitted that this reasoning involved a contradiction, because the Tribunal had accepted “that extremists were ferocious against music shop owners”, but rejected “that they harmed [the First Respondent] for owning and running a music shop”.

22    He submitted further that it was irrational for the Tribunal to infer from examples of the Mahdi Army acting very violently that they must have done so on every occasion. He said that the proper interpretation of the country information was that extreme violence was only used where the militias met resistance. In any event, examples of extreme violence in some cases did not preclude the possibility of more moderate violence in other cases.

Consideration

23    A finding of illogicality or irrationality requires the court to find that the Tribunal’s decision was one at which no rational or logical decision-maker could have arrived on the same evidence: SZMDS at 657–658 [130].

24    As the Full Court explained in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] (Griffiths, Perry and Bromwich JJ):

… 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 … at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 … 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 …

25    In DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85]–[86], primarily by reference to the High Court’s decision in SZMDS, the Full Court (Beach, O’Callaghan and Anastassiou JJ) said:

Differences of degree, impression and empirical judgment between the approach and reasoning of the Authority as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [78] per Heydon J). There is a high threshold. The question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker (SZMDS at [130] per Crennan and Bell JJ). As their Honours said at [131]:

The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Moreover, at [135] their Honours continued:

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.

26    In our opinion, there was self-evidently a logical connection between the evidence that the Mahdi Army acted through extreme violence on the one hand, and the Tribunal’s finding that the Mahdi Army had not targeted the First Respondent, who for some time had not been subjected to such violence, on the other. The Tribunal’s finding also rested on its adverse view of the First Respondent’s evidence, which it found to be vague and inconsistent in key respects.

27    Once it is established that the Tribunal’s factual finding was available on the evidence, further enquiry is not warranted. It is not the role of a court on an application for judicial review to assess how best to use the country information before the Tribunal, or what weight it should have been given.

28    It follows, in our view, that Ground 1 is made out.

GroundS 2 and 3

29    Grounds 2 and 3 are related.

30    Both arise from the primary judge’s finding that, when the Tribunal analysed the country information, it had not “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”. This, the primary judge found, had led the Tribunal to conclude incorrectly that the Mahdi Army always acted through gross violence. The primary judge noted further that 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”.

31    Ground 2 contends that this reasoning involved the primary judge making findings that were not open on the evidence. The Minister submitted that what the primary judge had called a “notorious fact” – that newspapers tend to report gross violence rather than more mundane acts – was actually a contestable matter of opinion. He said that in relying upon it, the primary judge had taken judicial notice of matters that could not have been properly considered without evidence.

32    As to Ground 2, the First Respondent conceded that the Minister was “right to complain about procedural fairness”, but submitted that no “practical injustice” had resulted, because Ground 1 was not made out.

33    For the reasons given above, however, Ground 1 is made out. It follows, obviously, that practical injustice has resulted from the error made by the primary judge in that regard.

34    Ground 3 contends that the primary judge denied the Minister procedural fairness. The Minister submitted that the question as to whether the Mahdi Army always acted in the very violent way described in the country information turned out to be “the determinative point”, and the primary judge did not raise it with the parties before deciding the case.

35    The First Respondent also conceded Ground 3, but relied on his Notice of Contention to resist an order that the appeal be allowed.

36    In summary, as the Minister submitted, the conclusion of the primary judge that it was “false” to state that the Mahdi Army were always very violent when they took action against persons involved in the music industry was an issue of fact for the Tribunal, the merits of which were not amenable to review. The second conclusion of the primary judge, that the Tribunal should not have placed weight on country information sourced from newspaper articles, was an unfounded assertion not based on any evidence. The primary judge, having found that the Tribunal was not irrational or illogical in the legal sense of those words in finding that the First Respondent was not targeted by the Mahdi Army, and that because he no longer owned a music shop was no longer at risk of being targeted by them in the future, ought at that point to have proceeded to dismiss the application.

disposition

37    It follows, as counsel for the First Respondent conceded (at transcript page 10), that if Ground 1 succeeds (as it has), the Notice of Contention falls away.

38    For the reasons given above, the appeal must be allowed.

Associate:

Dated:    13 October 2020