FEDERAL COURT OF AUSTRALIA

BPC16 v Minister for Immigration and Border Protection [2018] FCA 920

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely upon grounds of appeal not advanced before the primary judge.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Appellant is an Iraqi citizen who arrived on Christmas Island by boat on 13 October 2012. As an unauthorised maritime arrival, the Appellant was barred from lodging a valid visa application pursuant to s 46A(1) of the Migration Act 1958 (the Act) and was transferred to Christmas Island Detention Centre. On 8 May 2015 the Minister for Immigration and Border Protection (the Minister) lifted the bar on the lodgement of valid visa applications with respect to the Appellant, who was invited to apply for a Temporary Protection (subclass 785) visa (the visa). The Appellant lodged an application on 9 September 2015.

The DELEGATE’s Decision

2    The delegate of the Minister summarised the Appellant’s claims as follows:

77.    He is an Iraqi national of Arab ethnicity and Shia Islam religion originating from Najaf in the Najaf Governorate, located in the south of Iraq.

78.    He fears serious harm from the Al Mahdi militia on account of his political (imputed) opinion as a brother of a former employee of the American detention facility. The applicant fears the Al Mahdi will kidnap and kill him because for them he is a traitor.

79.    [That] two of his brothers; Mohammad and Rassul were killed in Najaf in 2008 and 2009 respectively by the Al Mahdi as a consequence of Ahmad’s employment at the Camp Bucca. He was approached by the Al Mahdi in 2008 and asked, with the help of his brother, to facilitate a release of all Al Mahdi detainees from the Camp Bucca and be a spy for them in the ‘green zone’ in Baghdad which both requests he refused.

80.    The Al Mahdi ruined him financially as they closed his furniture shop in 2010, which was his only source of income, threatened his family and destroyed his house in Najaf in 2010. Consequently, his family has been dispersed around different places in Iraq.

81.    He fears on return severe economic hardship affecting his ability to subsist, general insecurity, insufficient public services and lack of employment opportunities.

82.    He fears he may face death on return by the state and non-state agents due to the prevailing insecurity situation in Iraq, lack of effective state protection and incapability to relocate within the country.

3    I am satisfied that that is an accurate summary of the Appellant’s claims as recorded in his Irregular Maritime Arrival Entry Interview and his visa application form (at AB1-28 and AB 41-79 respectively).

4    The Delegate accepted that the Appellant’s brother was employed at the American detention facility, Camp Bucca, and that two of his brothers were killed. The Delegate accepted that the Appellant may have been approached by the Al Mahdi to facilitate the release of detainees from Camp Bucca and to spy for them, which he refused. The Delegate accepted that the Appellant fears that there is no state protection in Iraq as the ruling Shia party, police and military are infiltrated by Shia militias, and that the Appellant fears being subjected to significant economic hardship and denial of access to livelihood opportunities on return to Iraq. The Delegate did not accept that the Al Mahdi ruined the Appellant financially by closing his furniture shop in 2010, or that they destroyed his home and threatened his family, resulting in his family members being dispersed around Iraq. The Delegate did not accept that the Appellant’s family members had been threatened by the Al Mahdi, or that they are dispersed around Iraq due to adverse attention from the Al Mahdi.

5    The Delegate determined that the Appellant was not an excluded fast track review applicant pursuant to s 5(1) of the Act and on 5 May 2016, refused the Appellant’s visa application on the basis that the Appellant did not satisfy s 36(2) of the Act.

6    On 9 May 2016, the Appellant was notified that the delegate’s decision had been referred to the Immigration Assessment Authority (the IAA) for review.

The IAA Decision

7    On 30 May 2016, the Appellant was advised that the IAA had affirmed the Delegate’s decision (AB 182-202). The IAA’s decision referred to the decision of the Delegate as follows:

1.    The referred applicant (the applicant) claims to be a Shia from Najaf, Iraq. He arrived in Australia by boat on 13 October 2012. On 9 September 2015 he lodged an application for a temporary protection visa (TPV) claiming that he faced harm from the Mahdi Army, a Shia militia, if he returned to Iraq.

2.    A delegate of the Minister for Immigration and Border Protection (the delegate) was ‘satisfied with the overall credibility and plausibility of the applicant’s claims’. However, she relied on country information and information provided by the applicant indicating that he had not been threatened with harm since 2010, to find that he did not face a real chance of harm from the Mahdi Army now or in the reasonably foreseeable future. The delegate also considered a number of claims that were not explicitly made by the applicant but which she considered arose from the facts of the case. However, she considered that none of these gave rise to a real chance of persecution or a real risk of harm. She found that the applicant was not a refuge[e] and was not entitled to complementary protection.

8    The information before the IAA was referred to at [3]-[7]:

3.    I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

4.    On 23 May 2016 the applicant’s representative provided a submission addressing the delegate’s decision.

5.    The submission restates and clarifies the claims made by the applicant before the Department; corrects some perceived misinterpretations of the applicant’s claims by the delegate; and includes some legal argument. To the extent that the submission is based on information provided by the applicant to the delegate, it is not new information, and I have had regard to it.

6.    The submission also includes a media report which it is submitted suggests that there is now a risk of confrontation between different Shia groups. The report is dated 5 May 2016, the date of the delegate’s decision, and refers to events which took place shortly before the delegate’s decision, when supporters of Muqtada al-Sadr stormed the Green Zone in Baghdad protesting against the al Abadi government (which al Sadr previously supported but now opposes). The report notes that following the chaos of the demonstration, al Sadr’s supporters and other Shia armed groups had emerged “almost instantly” and fighters had then spread throughout Baghdad neighbourhoods. An Iraqi government official had responded to this saying that the risk of a “Shi’ite on Shi’ite confrontation is there”. Although the applicant stated in the TPV application “we are threatened from all the Shia parties that are present in Najaf. Najaf is the centre of all the Shia parties”, it is evident from the totality of the information he provided to the Department that it is the Mahdi Army from which he fears harm; he never explicitly mentioned fearing harm of any kind from any other Shia militia that might have had a presence in Najaf.

7.    The information relates to recent political developments in Iraq. Although the article itself was published on the day of the delegate’s decision and concerns developments that had been evolving for some time, I am satisfied that the information about the demonstration inside the Green Zone and the possible implications of this was not and could not have been provided to the Minister before the decision was made, because it occurred such a short time before the decision was made and because the particular media report was not previously available. However, as the information relates to the possibility of violence between different Shia armed groups, with which the applicant has no connection; appears to be referring to the situation in Baghdad, not Najaf; and appears to be highly speculative, in that it cites only one source who states that there is a “risk” of confrontation between Shia parties with no analysis of the degree of risk or how or when it might develop in reality, or exactly how it might affect the applicant in Najaf, I am not satisfied that there are exceptional circumstances which justify considering this information. I am therefore prevented from considering this information by s.473DD.

9    The IAA’s decision summarised the Appellant’s claims for protection. It noted (at [9]) that the Delegate had also considered a number of claims not explicitly made by the Appellant but that may be relevant: that he would face harm as a failed asylum seeker returning from a western country; that as a Shia he would face harm from Daesh or ISIS; and that he would face harm by reason of his religious profile as a Shia Muslin from Najaf.

10    The IAA referred to the documentary evidence submitted by the Appellant in support of his application. That evidence included death certificates for two of his brothers who had been shot. The documentary evidence also included evidence that the Appellant’s brother and cousin had been employed at Camp Bucca as a teacher and cleric respectively.

11    Under the heading “Discussion of claims and findings”, the IAA decision reads as follows:

15.    I have doubts about some aspects of the applicant’s claims. However, to the extent that he was able, I consider that the applicant has provided a consistent account of the events which he claims led to his decision to leave Iraq, which is supported where possible by documents and which is broadly consistent with country information.

Harm from Mahdi Army

16.    The delegate accepted that the applicant may have been approached by the Mahdi Army to facilitate the release of its prisoners but she found that this and the threats of harm occurred in 2008, 2009 and 2010; and the applicant had left Iraq two years later without experiencing further harm. She noted that the Al Mahdi launched numerous attacks against mainly US military targets which peaked in mid-2007 and 2008, and continued sporadically from 2008 until the withdrawal of US troops in 2011. In 2008 the Mahdi Army had shifted its focus to socio-political activities. She found that the current activity of the Mahdi Army is focussed on fighting against Daesh.

17.    The country information referred to by the delegate indicates that in 2007 the leader of the Mahdi Army, Moqtada al Sadr, ordered the Mahdi Army to lay down its arms, however, not all members followed this order and some individual units began to operate independently. This “rogue” Mahdi Army continued to fight despite al Sadr’s orders, and may later have merged with other militant organisations. The Mahdi Army resumed military action in February 2008, provoking a massive Iraqi Security Force (ISF) offensive against Mahdi Army elements in Basra which resulted in thousands of Mahdi Army casualties. Sadr agreed to a ceasefire on 31 March 2008. Following the ceasefire, Sadr shifted the Mahdi Army’s focus away from military operations to the provision of social services, assigning most of its members to a new branch officially known as the Mumahidoon, but which continued to be referred to as the Mahdi Army, and which provided services to Shiite communities in the suburbs of Baghdad and throughout Southern Iraq that included Koranic lessons, reconstruction, and garbage collection. Sadr retained a small elite military branch called the Promised Day Brigades (PDB) which was founded in around November 20086. The PDB was prohibited from attacking Iraqi citizens or Iraqi troops, but did continue to attack United States Forces (USF) until their withdrawal from Iraq in 2011.

18.    In 2010 Sadr shifted the focus of the Mahdi Army from social services to politics. It competed successfully in the 2010 elections, entering into a coalition with the Maliki government which, by December 2011, al Sadr opposed. In August 2013 Sadr announced that he would retire from political activity and dismantle the Mahdi Army. However, after the fall of Mosul to IS in June 2014 he called upon his followers to take up arms against IS, under the name “Peace Brigades”. Shortly afterwards, he pledged his support to the al Abadi government. Since then, the Peace Brigades have been working with the ISF and indirectly the USF against IS.

19.    I accept that the applicant’s brother … worked for the USF at Camp Bucca from May 2008 until February 2009. I accept that in March 2008 the applicant was approached by a person from the Mahdi Army who asked him to approach his brother for help in getting Mahdi Army prisoners released from Camp Bucca. He spoke to his brother about this, but his brother said that he did not know the names of individual prisoners, as they were known only by number, and he would not be able to help. The applicant informed the Mahdi Army that he could not help. Although the applicant has not claimed that they explicitly threatened him, I accept that the applicant feared that there was an implied threat that they would harm him.

20.    I accept that in October 2008 and February 2009 respectively the applicant’s brothers … were shot and killed. I cannot dismiss the possibility that these murders were carried out by the Mahdi Army and were connected with [the Appellant’s brother’s] work at Camp Bucca and the applicant’s refusal to help the Mahdi Army.

21.    I accept that later in 2009 the applicant was approached to work for the Mahdi Army in the Green Zone, and that he tried to put them off by indicating that he would think about this. Again, I accept that the applicant feared he would be harmed for refusing the help the Mahdi Army though he does not claim that they made any explicit threat against him.

22.    The applicant worked in the carpentry shop in Al Hayraa until some time in 2010. In 2010 the applicant’s house in Al Hayraa was damaged in a bombing or fire. The delegate noted in the primary decision record that the applicant stated at the protection interview that he was living there at the time; however, having listened to the recording of the protection interview, it is my view that he was not living there when the house was burned. He indicated at the protection interview that he left Al Hayraa in 2010 when the shop was closed, although again, it is not clear whether this was before or after the house was attacked, and it appears that he may have moved to another area, Al Daroof before moving to al Medina St, Al Jumhoori in 2011. This was the area where his family had lived many years before, so the applicant used his family address and did not need to register his new address (in rented accommodation). I accept that he was concerned that the Mahdi Army had infiltrated government offices and so he might have come to their attention had he registered his new address. The applicant remained in Al Jumhoori until his departure. About two years later his wife and daughters moved from Al Jumhoori to live with his parents in Al Hayraa. There is no suggestion that any of these family members have experienced any problems or threats of harm from the Mahdi Army. I accept the applicant’s explanation that the women would not be targeted, although I have doubts about his claim that his father would not be, and I note that his brother … was apparently living with the family in Al Hayraa between 2012 and 2015, apparently without problems. I accept that [the Appellant’s brother] migrated to the US at around the time of the protection interview in 2015.

23.    I accept that after [the Appellant’s brother] stopped working at Camp Bucca he lived in different locations, which I am prepared to accept was because he feared for his life – however it appears that he remained in Najaf. He migrated to the US in 2015 (around the time of the protection interview in November). I accept that he migrated with a Special Immigrant Visa issued to former employees of the USF deemed to be at risk because of that employment.

24.    I accept that the applicant was viewed as both a collaborator and an opponent of the Mahdi Army because of his brother’s employment with the USF and because of the applicant’s refusal to assist them. The most recent UNHCR Eligibility Guidelines for assessing claims of Iraqi asylum seekers (which date from 2012), noted reports that armed Shi’ite groups (including the Mahdi Army) which had in the past focussed on attacking the international and US forces, had also singled out Iraqis of various profiles for kidnapping and assassination, including persons considered as “collaborators” with the foreign forces, especially the USF. The Guidelines indicate that family members of such individuals were also targeted.

25.    I accept that the applicant felt that he was at serious risk of harm in 2010 following the murders of his brothers and the attack on his former house. I accept that he made the decision to leave Iraq then. However, in my view, subsequent events indicate that he was not at risk of harm and that he did not face a real chance of persecution when he left Iraq in 2012.

26.    The applicant stated that some time in 2010 he closed the shop in Al Hayraa and moved from there to the Al Jumhoori area where his family originated. I accept that he did not approach the authorities to register his new address, and that he did not work, having been forced to close the shop; however, he stated at the protection interview that he was able to live comfortably from his savings and said that life was “easy”. He does not claim to have been explicitly threatened or approached by the Mahdi Army from this time up until his departure. During this period his brother … resided with the applicant’s parents and worked as a carpenter up until his departure in 2015. There is no suggestion that [that brother] was threatened or harmed during this period. His brother … who had worked at Camp Bucca, remained in Najaf until he left for the US in 2015. The information provided by the applicant about his circumstances, and those of his remaining family members, therefore indicates that they were not at real risk of harm after 2010. In my view, this appears to coincide with and reflect the closure of Camp Bucca in September 2009, the change in focus of the Mahdi Army, and the withdrawal of the USF in 2011. Given these circumstances, I do not consider that there is a real chance that the applicant would be at risk of harm as a target of the Mahdi Army if he returns to Iraq now or in the reasonably foreseeable future. Country information indicates that the Mahdi Army no longer exists as an armed force in the same way that it did up until 2009 or 2010, when I accept that the applicant’s family members were targeted and he was under threat. Its offshoot the Peace Brigades is now focused on fighting against Daesh. Moqtada al Sadr is engaged in the political process. There is no recent information to indicate that the Mahdi Army continued to target perceived collaborators after the period covered in the 2012 UNHCR Eligibility Guidelines, and I note the country information stating that al Sadr expressly forbade attacks on Iraqi citizens at the end of 2008. While there is perhaps a small possibility that the applicant would be at risk from rogue elements in the Mahdi Army because of his previous profile, I consider that the chance that he would actually be harmed so long after the relevant events, and in the changed circumstances prevailing now, is remote and insubstantial. The available information indicates and I find that there is no real chance that he would face serious harm from the Mahdi Army, or anyone associated with it, if he returned to Iraq now or in the reasonably foreseeable future.

27.    The applicant’s representative states that in the period before his departure from Iraq the applicant was living discreetly and keeping a low profile because of his fear of harm. He argued that it would be a legal error to require the applicant to thus modify his conduct in order to avoid persecution. The submission cites the High Court decision in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 as authority for this proposition. However, s. 5J(3) of the Act, which was introduced recently, provides that an applicant does not have a well-founded fear of persecution if s/he could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution; but specifies certain modifications which it is impermissible to require an applicant to make. I consider that even if the applicant were required to live discreetly in order to avoid persecution, in the circumstances of this case this would constitute taking reasonable steps to avoid persecution, and would not involve any impermissible modification to his behaviour, as set out in s.5J(3)(a)-(c). In any event, because of the changes in the political and security situation since 2012 - the changed nature of the operations of the Mahdi Army and the apparent absence of any threat or risk of harm to the applicant’s family members who remained in Iraq after his departure – I do not consider that it would be necessary for the applicant to continue to live discreetly in order to avoid persecution on return.

28.    Overall, I am not satisfied that there is a real chance that the applicant would face harm from the Mahdi Army, or anyone associated with it, if he were to return to Iraq now or in the reasonably foreseeable future.

Harm for reason of religion as a Shia in Najaf

29.    I cannot identify anywhere in the written or oral information provided by the applicant where he claimed that he faces harm as a Shia in Najaf for reason of his religion, nor does this claim appear to arise squarely from the facts of the case. Indeed, in the submission to the IAA the applicant’s representative noted that the applicant had never made such a claim, stating “[b]eing a Shia by itself does not cause him any problems”. It was argued that rather, the applicant’s claim is based on imputed political opinion resulting from his refusal to assist the Mahdi Army which therefore regards him as an apostate.

30.    Having considered the information put forward on behalf of the applicant and the country information considered by the delegate, I am not satisfied that the applicant faces harm of any kind as a Shia in Najaf, for the essential and significant reason of his religion.

31.    As to the assertion by the applicant’s representative that the applicant’s refusal to help the Mahdi Army has resulted in his being viewed as an apostate, the applicant’s own evidence indicates that his claim is that he would be viewed as a person generally opposed to the Mahdi Army. As the Mahdi Army is a sectarian political movement this could involve both political and religious opposition. The evidence does not suggest, however, that the applicant would face harm as an apostate separately and distinct from any harm he might face as a person viewed generally as an opponent of the Mahdi Army.

32.    The applicant’s claim that he faces harm as an imputed opponent of the Mahdi Army – whether for reason of his imputed political opinion or as an apostate - is dealt with above.

Inability to subsist, lack of services, economic issues

33.    The applicant claims that he fears severe economic hardship affecting his ability to subsist, general insecurity, insufficient public services and lack of employment opportunities.

34.    I accept that the applicant was forced to close the carpentry business that he ran with his brother. I note that he and his family were able to live on savings from earnings that he made from the business over the period from 2010 until he left Iraq, and he was able to pay for his travel from his savings.

35.    Given my findings that the threat of harm from the Madhi Army has passed, I consider that the applicant could re-establish a business if he returned to Iraq. Moreover, he is university educated and qualified in teaching, although he claimed that he was unable to find employment in this field previously because he did not have the necessary connections with political parties.

36.    As noted elsewhere, Shia Muslims constitute the majority in the southern provinces of Iraq, including Najaf. DFAT advises that “Shia Muslims face little to no official discrimination in Government-controlled areas. In Shia-dominated provinces, DFAT assesses that reported instances of discrimination are more likely to be associated with patronage, such as not having the right contacts to secure access to jobs or housing. Overall, DFAT assesses that official discrimination against Shia Muslims in Shia-dominated provinces rarely occurs”. The information provided by the applicant at the protection interview indicates that he has access to family and tribal support in the area of southern Iraq to which he would return. Even if he were to have difficulty finding work because of his lack of connections, I do not accept that this would result in him being denied the capacity to subsist, or any other form of serious harm amounting to persecution.

37.    Furthermore, any difficulties which the applicant may face in finding employment resulting from general conditions in Iraq including the current security situation, past conflict and political instability would not be directed at him for any relevant reason specified in s.5J(1)(a).

38.    There is no information before me to support a finding that the applicant would be denied services to such an extent that his capacity to subsist would be threatened, or that in any way would constitute serious harm amounting to persecution.

Harm from Daesh

39.     The applicant did not explicitly claim to fear harm from Daesh, also known as Islamic State (IS), but the claim was dealt with by the delegate.

40.     Country information indicates that in June 2014 Daesh, supported by other Sunni militia, took control of large portions of the northern and central provinces of Anbar, Ninewa, Salah al-Din and Diyala. In areas under its control, Daesh is targeting members of religious minorities, including Shias. Government forces, assisted by Shia and Kurdish militia, are fighting against Daesh in these areas, attempting to recover territory and prevent its further expansion.

41.    I accept that as a Shia, the applicant may be at risk from Daesh in areas under its control. However, the applicant comes from Najaf, in southern Iraq. I am satisfied that this is his home area, and the area of Iraq to which he would return. Country information indicates that this part of Iraq is under the control of the central government, and Daesh and other militant Sunni groups have little or no presence there and little or no capacity to carry out targeted attacks.

42.    Although in June 2014 IS declared its intention to march on Shia holy cities, including Najaf, there was no information before the delegate at the time of her decision, and there is none before me to indicate that any progress has been made to achieve this objective. The available information indicates that Daesh’s presence in southern provinces including Najaf is minimal, and does not pose a real or substantial threat to the Shia population. Based on the available information I consider the possibility that, in the reasonably foreseeable future, Daesh would overrun the southern parts of Iraq including Najaf, is speculative and remote. In these circumstances I find that the possibility that the applicant would face harm from Daesh on return to Iraq is remote.

General insecurity

43.    The applicant claims that he fears general insecurity.

44.    Country information indicates that the security situation in Iraq has worsened over recent years. Much of the violence is ethnically, religiously or politically motivated and targeted, but can take the form of mass casualty attacks directed at large gatherings of the targeted groups, which then also result in many deaths outside of the targeted populations. DFAT reported in February 2015 that ethnic and sectarian violence was widespread in the northern, central and western provinces. However, it reported that southern Iraq (including the province of Najaf), where the population is overwhelmingly Shia, remained ‘significantly more secure’ than central Iraq in recent years, and had been ‘relatively insulated from the increased level of violence in provinces in the north and west’. While generalised violence and targeted mass casualty violence - for example, against Shia pilgrims – occurs from time to time, it is at a significantly lower level than in Baghdad and the northern and central provinces. There have been fewer attacks by Sunni groups in Shia dominated provinces, with levels of violence in the south much lower than elsewhere in Iraq. Violence in the southern governorates is limited to sporadic terrorist attacks of decreasing frequency and intensity, and strict security measures are in place.

45.    Overall, DFAT has assessed that Shias in Shia-dominated provinces of southern Iraq (including Najaf) are at a low risk of generalised violence. The available information indicates that while there are occasional targeted mass casualty attacks in the south, including in Najaf, these occur infrequently. I find that the prospect of the applicant being caught up and harmed in one of these occasional attacks in the south is remote. I am not satisfied that there is a real chance that the applicant will face serious harm in Najaf as the result of a mass casualty attack targeted at any identifiable group or groups of which the applicant is a member (such as Shia), or as the result of an attack aimed at some other group, because he happened to be in the wrong place at the wrong time, or because of general conflict.

Failed asylum seeker from a western country

46.    The delegate dealt with a claim not explicitly made by the applicant, that he would face harm as a failed asylum seeker returning from a western country on return to Iraq.

47.    The information before me does not indicate that failed asylum seekers returning to Iraq from western countries are imputed to hold any political opinion, including one that would cause them to face persecution or significant harm.

48.    There are reports of approximately 100 failed asylum seekers having returned from Australia to southern Iraq, with no evidence that they have experienced any problems. Further, there is evidence of a number of people voluntarily returning to Iraq from the US, Europe and Australia with no suggestion that they face problems or are unable to assimilate back into their communities. The Iraqi Government provides financial incentives for unsuccessful asylum seekers to return. DFAT reports that the practice of seeking asylum then returning home appears accepted among Iraqis and assesses that successful asylum seekers appear to commonly return to Iraq without difficulty. There is no evidence to suggest and no reason to suppose that the situation might be different for unsuccessful asylum seekers.

49.    There is no information before me from any source to suggest that failed asylum seekers and/or returnees from western countries face persecution or significant harm for this reason. I find that the applicant does not face a real chance of being persecuted for any reason, including an imputed political opinion, as a failed asylum seeker from a western country or as a returnee from a western country.

12    The IAA concluded that the Appellant did not satisfy s 5H(1) of the Act and failed to meet the requirements of s 36(2)(a).

13    With respect to complementary protection, the IAA found as follows:

51.    A criterion for a protection visa is that the applicant is a non citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Real risk of significant harm

52.    Under s.36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

53.    The applicant has not raised specific claims for protection under the complementary protection provisions separate from his claims under the refugee criterion.

54.    As set out above, I have found that there is not a real chance that the applicant faces harm in Najaf, the area of Iraq to which I find he would return, either from the Mahdi Army or other Shia militia, Daesh, in mass casualty attacks, or as the result of general insecurity, conflict or violence. Based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm from these sources.

55.    As to his claims about economic harm and lack of services, I am not satisfied that the difficulties that the applicant may face – difficulty finding a job, family members scattered, and uncertainty due to the political and security concerns in Iraq – will result in any form of significant harm as defined. I find that any such difficulties will not comprise cruel, inhuman or degrading treatment or punishment, as I find that the necessary intention for the infliction of such harm would be absent as the harm arises from prevailing conditions in Iraq. Nor do I accept that there is a real risk that the applicant would face difficulties in finding employment or adequate employment that would constitute any form of significant harm, including inhuman, cruel or degrading treatment or punishment. Apart from the harm itself not reaching the necessary threshold to constitute significant harm, I find that the necessary intention required for cruel, inhuman or degrading treatment or punishment is absent. I am also not satisfied that any such difficulties will result in the death penalty being carried out on the applicant, or in the applicant being arbitrarily deprived of life, or being subjected to torture.

56.    As discussed above, there is no information before me to support a finding that there is a real risk that the applicant would face harm of any kind as a failed asylum seeker or a person returning from a western country.

Complementary protection: conclusion

57.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

14    On 28 July 2017 the Appellant applied to the Federal Circuit Court of Australia (the FCCA) for judicial review of the IAA’s decision.

BEFORE THE federal circuit court

15    The single ground of appeal advanced before the primary judge was (as set out at [28]):

Ground 1

The Authority made a jurisdictional error because its finding in relation to the jurisdictional fact of whether it was satisfied that the Applicant was a refugee became legally unreasonable in circumstances where the reasoning of the Authority that the Applicant faced only a remote chance of harm from Daesh has been contradicted by events occurring after the Authority made its decision.

16    The primary judge referred to the submissions made on behalf of the then review applicant as follows:

29.    Mr Jones of counsel on behalf of the applicant adduced evidence in support of the alleged ground of jurisdictional error based on legal unreasonableness. In that regard, Mr Jones of counsel sought to rely upon three media publications concerning the same incident in which Daesh attacked an Iraqi police checkpoint in the southern city of Najaf in January of 2017. One of the articles referred to this as being a reminder of Daesh’s continued ability to operate away from territory under its control. The Court admitted the articles subject to relevance.

30.    Mr Jones of counsel submitted that the articles demonstrated a fundamental factual error in a critical aspect of the authority’s reasoning in respect of the risk of Daesh in Najaf. Mr Jones of counsel submitted that the articles were of such significance that no reasonable decision-maker could have come to the same ultimate finding as made by the Authority if the articles had been before the Authority.

17    At [13]-[15] the primary judge set out the basis upon which the IAA had declined to have regard to those articles as follows:

13.    By email dated 23 May 2016 submissions were sent to the Authority on behalf of the applicant which relevantly, included a media report delivered the same date as the decision of the delegate. The Authority identified that the submissions were based on the information provided by the applicant to the delegate and found that they were not new information and had regard to the same.

14.    The Authority identified that the media report was information relating to recent political developments in Iraq. The Authority found that the information related to the possibility of violence between different Shia armed groups with which the applicant has no connection and appeared to be referring to the situation in Baghdad, not Najaf. The Authority found that this appears to be highly speculative in that it cites only one source who states there is a risk of confrontation between the Shia parties with no analysis of the real risk or how or when it might develop in reality, or exactly how it might affect the applicant in Najaf. It was in those circumstances that the Authority was not persuaded there were exceptional grounds which justify considering the same as new information and found that it was prevented from considering the same by s.473DD of the Act.

15.    The Authority in its decision identified the applicant’s background and set out the applicant’s claims for protection. The Authority correctly identified the relevant law. The Authority identified credibility concerns in respect of some of the applicant’s claims.

18    His Honour’s reasoning appears at [31]-[37]:

31.    The single incident the subject of the three articles, falls well short of demonstrating that Daesh has control in southern Iraq, let [alone] the city of Najaf. The material was the subject of objection and a submission was advanced on behalf of the first respondent that in substance, ground 1 was seeking to invite this Court to engage in an impermissible merits review.

32.    Mr Jones of counsel accepted that the subject matter of the three articles in respect of the same particular incident that he was seeking to advance into evidence was the same topic upon which the Authority had exercised its powers in its deliberation as to whether to receive new information and for the reasons identified above declined to do so. This is a case where it is apparent that the issue of the conduct of Daesh in southern Iraq was live and apparent before the Authority. Mr Jones of counsel does not contend that the findings made by the Authority in relation to the risk from Daesh in Najaf at the time of the Authority’s decision is illogical, unreasonable or irrational. Rather, what Mr Jones of counsel seeks to submit is that the subsequent material in respect of the particular incident is of a kind that falls within the observations made by Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 (“Australian Retailers”) at [457]-[459].

33.    Mr Jones of counsel accepted that the risk of Daesh in Najaf was not itself a jurisdictional fact and accepted that whether the applicant met the criteria to be a refugee involved a combination of factual criterion. The passage in Australian Retailers identifies limited circumstances in which on the grounds of legal unreasonableness, information post the decision under judicial review might be the subject of further evidence. Whilst not being exhaustive, the two examples identified by Weinberg J were that an actual state of facts did not exist or that there was a finding of a particular fact that did not exist.

34.    The present case is not one which falls within either of the two contemplated circumstances identified in Australian Retailers. The material admitted subject to relevance in the present case was really country information addressing the merits of the review conducted by the Authority. It is not necessary in the circumstances of the present case to identify examples beyond those identified by Weinberg J in which fresh evidence may be able to be received to make out legal unreasonableness subsequent to the decision the subject of judicial review.

35.    On no view is the information sought to be adduced and which was admitted subject to relevance in the present case, of a kind that establishes that a particular fact did not exist or that a particular state of facts did not exist. The incident in 2017 of an attack by Daesh did not establish that Daesh had control of southern Iraq or of Najaf. The material sought to be adduced is not of a kind falling within the principle identified by Weinberg J and is not admissible to establish legal unreasonableness in the present case.

36.    The material on its face seeks to re-agitate the merits of the findings of the Authority which were open on the material before the Authority and which cannot be said to lack an evident and intelligible justification. In these circumstances, the material that was admitted subject to relevance should not be received into evidence and the tender of that material is rejected on the grounds of being irrelevant.

37.    I accept the first respondent’s submission that ground 1 is in substance, a skilful attempt to invite this court to engage in an impermissible merits review. The material would in any event, fall well short even if received into evidence of demonstrating that no reasonable decision-maker could have come to the decision made by the Authority in the present case.

19    On 29 May 2017 the primary judge dismissed the Appellant’s application for review: see BPC16 v Minister for Immigration and Border Protection [2017] FCCA 1140.

BEFORE THIS COURT

20    On 14 June 2017, the Appellant filed a notice of appeal with this Court in respect of the FCCA decision. The six grounds of appeal advanced as at that time were:

1.    The Hon. Federal Circuit Court Judge made legal error by not considering procedural failure on part of Immigration Assessment Authority (AAT) decision and made legal error.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling [sic] s424 (a) ands. 424 (b) of the Migration Act-1958 by the Immigration Assessment Authority.

3.    The Immigration Assessment Authority made legal error by not correctly assessing documentary evidence and oral submission provided by the Appellant representative and made legal and jurisdictional error.

4.    The Immigration Assessment Authority erred in its judgment by not applying s36 (2) of the Migration Act - 1958. The Authority has not considered serious harm faced by the Appellant if he returns to Iraq.

5.    The Immigration Assessment Authority made legal error in considering country information in its decision without providing source of information or authenticity of the information.

6.    The Immigration Assessment Authority has not given enough consideration to the evidence provided about violence in Iraq, state persecution, threat posed by DAES and come to adverse conclusion.

21    Timetabling orders were made by a Registrar of the Court to prepare the matter for hearing. No submissions or authorities were filed by the Appellant pursuant to those orders. The hearing of this appeal was originally set down for 7 November 2017 but was adjourned by the Court when a flooding event caused the Sydney Law Courts building temporarily to be unavailable. The hearing was relisted for 3 May 2018.

22    No written submissions were filed by the Appellant prior to the relisted hearing of the appeal.

23    At the hearing, Mr Yousif appeared on behalf of the Appellant. He advised that he had been engaged by the Appellant on 30 April 2018. Mr Yousif advised the Court he had been unable to obtain comprehensive advice from counsel, but on the basis of preliminary advice, he had been instructed to seek leave to raise two new grounds of appeal.

24    Mr Yousif then sought an adjournment of the hearing. That application was opposed by the Minister.

25    Given that neither the Court nor the Minister had been advised that the Appellant had intended to seek an adjournment, and that Mr Yousif offered no explanation on the Appellant’s behalf for his delay in seeking legal advice, the Court refused that application.

26    Mr Yousif was given the opportunity to make oral submissions in support of the Appellant’s original grounds of appeal. He chose not to do so. Nevertheless, they were not abandoned. On behalf of the Minister Ms Graycar indicated she was content to rely on the Minister’s written submissions with respect to those grounds.

27    The matter was then briefly stood down to enable Mr Yousif to take instructions from the Appellant with respect to the form of the two additional grounds of appeal that Mr Yousif had indicated the Appellant was seeking leave to rely on.

28    When the Court resumed Mr Yousif advised that he had been instructed to seek leave to rely upon two additional grounds of appeal as follows:

(i)    The Federal Circuit Court erred in that it did not consider the effect of s 473GB of the Migration Act 1958 (Cth).

(ii)    The Federal Circuit Court erred by not finding that the Immigration Assessment Authority misconstrued s 473DD of the Migration Act 1958 (Cth) when refusing to accept the information provided by the Appellant’s adviser.

29    Ms Graycar did not oppose leave being granted to the Appellant to rely on those additional grounds. She noted that one of the two additional proposed grounds had been addressed in her written submissions in anticipation that it might arise.

30    In those circumstances, the Court made orders granting the Appellant leave to rely on two additional grounds of appeal. I will refer to the two new grounds as Additional Ground 1 and Additional Ground 2 respectively.

31    The Appellant was given leave to file and serve written submissions on each of the two additional grounds of appeal, and the Minister was given leave to file and serve responsive written submissions. The Court indicated that it would reserve its decision on all grounds and determine the appeal on the papers.

Leave to rely upon grounds of appeal not advanced before primary judge

32    A preliminary matter arises. The six original grounds of appeal advanced before this Court and the two additional grounds had not been raised before the primary judge.

33    As was observed in BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 per Allsop CJ at [66], leave to advance a ground of appeal not run in the court below is to be granted only where it is expedient and in the interests of justice to do so.

34    However in that regard it is not irrelevant to consider the resources available to an appellant in pursuing an appeal, and the consequences of a decision refusing to grant leave, for the reasons referred to in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; (2015) 232 FCR 262 per Logan J at [9]:

In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

35    Given the Minister did not oppose the grant of leave in respect of the original six grounds on the basis that they had not been contended for in the court below and has addressed their merits in written submissions I accept it to be in the interests of justice for the Court to permit the Appellant to rely on those grounds together with the two additional grounds for which leave was expressly given in the course of the hearing.

Ground 1

36    Ground 1 is as follows:

The Hon. Federal Circuit Court Judge made legal error by not considering procedural failure on part of Immigration Assessment Authority (AAT) decision and made legal error.

37    The Minister’s written submissions with respect to Ground 1 were:

21.    … To the extent that this ground refers to the refusal by the IAA to accept into evidence the media reports that were attached to the appellant’s representative’s submissions, that matter was dealt with by the FCC at [32] of its reasons (AB 213) where his Honour noted that the subject of the articles about the 2017 incident that were sought to be adduced in that court related to the same matters in relation to which the IAA had not been satisfied that there were exceptional circumstances that warranted the acceptance of that material. The IAA gave detailed reasons for so finding at AB 187 [7] and in the absence of any particularisation of how it is said that this constituted procedural failure, this ground cannot succeed.

38    Notwithstanding the Minister’s valiant attempt to read some meaningful content into Ground 1, the Court does not consider that Ground 1 advances any allegation of specific error. Rather, it appears to the Court to be a catchall introductory assertion that the primary judge made the errors later specified in Grounds 2 to 6. I would dismiss Ground 1 as too general in its terms to disclose any basis upon which an appeal could succeed.

39    In so far as the Minister advanced the submission referred to above I will take it into account when I consider Ground 3 in which context it is more relevant.

Ground 2

40    Ground 2 is as follows:

The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly [applying] s424 (a) and s. 424 (b) of the Migration Act 1958 by the Immigration Assessment Authority.

41    The Minister submits that the IAA decision was required to be dealt with under the Fast Track Assessment Process, which is governed by Pt 7AA of the Act. The review procedure that is undertaken by the IAA pursuant to Pt 7AA is different from that undertaken by the Administrative Appeals Tribunal (the AAT) under Pt 5 or Pt 7 of the Act. The Minister cited Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[27] and CCW16 v Minister for Immigration and Border Protection [2017] FCCA 2 at [57]-[74] as providing a “detailed overview” of the procedure set out by Pt 7AA. The Minister submitted that the provisions of the Act relied upon by the Appellant do not apply to the IAA.

42    The Minister submitted as follows:

23.    Section 473DA(l) provides that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. This provision is couched in broader terms than s 357A(l) (Part 5) and s 422B(l) (Part 7) and it operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA (albeit in AMA16 the Full Court made it clear that that restriction on “natural justice” is limited, as per the statutory language, only to the hearing rule: at (18)). Thus this ground must also fail.

43    I accept the submissions advanced on behalf of the Minister with respect to this ground. In conducting its review, the IAA was not subject to the requirements of s 424 of the Act.

44    I would dismiss Ground 2.

Ground 3

45    Ground 3 is as follows:

The Immigration Assessment Authority made legal error by not correctly assessing documentary evidence and oral submission provided by the [Appellant’s] representative and made legal and jurisdictional error.

46    As I have earlier noted the Minister’s submissions advanced in respect of Ground 1 were more directly relevant to Ground 3:

… To the extent that this ground refers to the refusal by the IAA to accept into evidence the media reports that were attached to the appellant’s representative’s submissions, that matter was dealt with by the FCC at [32] of its reasons (AB 213) where his Honour noted that the subject of the articles about the 2017 incident that were sought to be adduced in that court related to the same matters in relation to which the IAA had not been satisfied that there were exceptional circumstances that warranted the acceptance of that material. The IAA gave detailed reasons for so finding at AB 187 [7] and in the absence of any particularisation of how it is said that this constituted procedural failure, this ground cannot succeed.

47     It will be apparent that Ground 3 overlaps with Additional Ground 2. Additional Ground 2 asserts that the FCCA was in error in failing to find that the IAA misconstrued s 473DD of the Act in refusing to have regard to the submissions made on behalf of the Appellant on 23 May 2016. To the extent that Ground 3 of the appeal addresses an identical issue, the Appellant has not identified any other documentary evidence or written submissions not said to have been properly assessed by the IAA. Both grounds address the same subject matter. Both give rise to common issues of law. In so far as Ground 3 relates to documentary materials and written submissions, the Court will address both grounds when it gives consideration to Additional Ground 2.

48    To the extent that Ground 3 contends that the primary judge erred in not identifying that the IAA had failed to provide the Appellant with an opportunity to make oral submissions, the provisions of Pt 7AA of the Act explicitly set out the procedures to be followed with respect to a review conducted by the IAA.

49    Relevantly, s 473DB of the Act provides as follows:

Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note:    Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

50    The Minister submitted (at [24]):

…To the extent that this ground concerns the new information that was not admitted by the IAA that was dealt with above in relation to Ground 1 (and see s 473DC and s 473DD). As for any claim about oral submissions, s 473DB(l) compels the IAA, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA under s 473CB “without accepting or requesting new information” and “without interviewing the referred appellant”. Thus this ground could not succeed.

51    I accept the Minister’s submission that the IAA is required to conduct a review on the papers, except in the limited circumstances provided for in Pt 7AA of the Act.

52    Subject to the disposition of Additional Ground 2 I dismiss Ground 3.

Ground 4

53    Ground 4 is as follows:

The Immigration Assessment Authority erred in its judgment by not applying s36 (2) of the Migration Act - 1958. The Authority has not considered serious harm faced by the Appellant if he returns to Iraq.

54    The Minister’s written submissions with respect to this ground were:

…This ground must also fail. The IAA clearly considered the harm that the appellant claimed he would face if returned to Iraq: see AB 189-196, both under the Refugees' Convention and in relation to s 36(2)(aa): the complementary protection criterion: at (53)-(56)

55    The Appellant has not provided any particulars of his contention that the IAA failed to consider s 36(2) of the Act.

56    It is evident from the extracts of its reasons that I have set out earlier that the IAA gave considerable attention to the assessment of the Appellant’s claims under both limbs of s 36(2); the IAA’s reasoning and findings with respect to s 36(2)(a) were set out at [11]-[50] and, notwithstanding that the Appellant did not make a claim for complementary protection under s 36(2)(aa) separately to his claims under the refugee criterion, its reasoning and findings with respect to s 36(2)(aa) were set out at [51]-[57].

57    The Appellant has not identified any appealable error.

58    I dismiss Ground 4.

Ground 5

59    Ground 5 is as follows:

The Immigration Assessment Authority made legal error in considering country information in its decision without providing source of information or authenticity of the information.

60    The Minister’s submissions with respect to this ground of appeal are as follows:

… There are two responses to this ground. First, the country information was sourced (see for example the references to DFAT country reports, and information from the UN High Commissioner for Refugees in footnotes at AB 194). Secondly, it is well established that the choice of country information, the use made of it and the weight to be accorded to it is entirely a matter for the merits review decision maker: see NAHI v Minister for Immigration [2004] FCAFC 10 (NAHI) at [11]-[13] and see also Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]-[7].

61    I accept the Minister’s submissions. On the face of its reasons as set out above, it is evident that the IAA referred to the sources of the country information it relied upon.

62    The weight to be given to that material was a matter for the IAA. In NAHI v Minister for Immigration and Border Protection [2004] FCAFC 10, Gray, Tamberlin and Lander JJ said the following at [11] with respect to country information:

The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

(Emphasis added)

63    The primary judge did not err in not identifying error on the IAA’s part. In Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297, RD Nicholson J found at [5] that it is “for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight … [t]he matter of weight to be given to the evidence [is] in the domain of the Tribunal and not the primary judge on review”. While his Honour’s observations were made in respect of a different tribunal they apply equally to the relationship between the IAA and a judge exercising judicial review of its decisions.

64    I dismiss Ground 5.

Ground 6

65    Ground 6 is as follows:

The Immigration Assessment Authority has not given enough consideration to the evidence provided about violence in Iraq, state persecution, threat posed by DAES and come to adverse conclusion.

66    The Minister’s written submissions are:

27.    … This ground is expressly a claim seeking to challenge the findings of the IAA, ie seeking impermissibly to have the Court engage in merits review, which it cannot do.

67    The Appellant does not allege that the IAA’s consideration of his claims was so deficient as to constitute a failure to exercise its statutory task. The ground of appeal as advanced by the Appellant alleges a failure to give “enough” consideration to the evidence about certain aspects of the Appellant’s claims. I acknowledge that the murder of the Appellant’s brothers and the circumstances in Iraq are not trivial matters but on the face of its reasons the IAA also acknowledged those matters. I accept the Minister’s submission that to engage in a consideration of the adequacy of the IAA’s consideration of the Appellant’s claims on the basis of the ground advanced would amount to impermissible merits review of the decision. There was no legal error in the primary judge not having done so.

68    I dismiss Ground 6.

Additional Ground 1

69    Additional Ground 1 is:

The Federal Circuit Court erred in that it did not consider the effect of s 473GB of the Migration Act 1958 (Cth).

70    The Appellant submits:

3.    The ground of failure to take into account a relevant consideration is only made out if the decision-maker fails to take into account a consideration which he or she is bound to take into account in making the decision [citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39]. If the discretion is unconfined by the statute, the factors which may be taken into account are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard [citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J at 40].

4.    The Appellant submits that when considering judicial review proceedings under s 476 of the Migration Act 1958 (Cth) (the Act), the Federal Circuit Court of Australia (FCCA) is bound by an implied statutory obligation to consider whether the Minister has properly exercised his or her power under s 473GB of the Act.

5.    First, should the FCCA not review a purported certificate made under s 473GB(5) of the Act, a court exercising jurisdiction under or derived from s 75(v) of the Commonwealth Constitution would not be in a position to enforce the limits which parliament has expressly or impliedly set on the decision-making power conferred by parliament on the officer under s 473GB(1) of the Act [citing Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] GCA 33; (2017) 347 ALR 350 at [42]-[46] and [48]].

6.     The impugned information or document purportedly falling within the statutory scope of s 473GB of the Act should have been placed before the FCCA (so that the court can make a determination as to whether the impugned document or information was in fact communicated ‘in confidence’). Given the statutory ambit of s 473GB of the Act, it is hardly to be supposed that the Appellant could make submissions in relation to the purported confidentiality of the impugned information (as the Appellant could not see the document or information).

7.     Secondly, should the FCCA (when considering an application for a Constitutional writ) not be bound by an implied statutory obligation to consider the statutory operation of s 473GB of the Act, that provision would otherwise have the practical effect of imposing a blanket, inflexible limit on obtaining and receiving evidence relevant to a court’s discernment of whether or not legislatively imposed conditions of, and constraints on, the lawful exercise of powers conferred by the legislation on the minister have been observed.

8.     Should the preceding implied mandatory obligation advanced not be accepted, this would have the practical impact that the court would be prevented from having access to a category of information relevant to its decision on those issues. Whether or not the minister, in applying s 473GB of the Act, did so reasonably on the material to which he had regard, so as to have acted within the legal limits of the power under that section, cannot be known to the court.

9.     Finally, given that the statutory operation of s 473GB can operate in the context of decisions made under s 36 of the Act, the former provision should always be considered by the FCCA in the preceding circumstances. No adverse implication should be drawn from the fact that a non-citizen (such as the Appellant) has not raised an issue in relation to the legal operation of s 473GB of the Act by the Minister; for the simple reason, that without seeing the impugned information or document, no practical submission could be made on the topic.

10.     In this case, the Immigration Assessment Authority (IAA) did not address the statutory operation of s 473GB of the Act. That said, it is trite to say that it is the fundamental task of a court to decide questions of law. In that context, whether the Minister had lawfully complied with s 473GB of the Act is a question of law (which should have been decided by the FCCA).

71    The Minister submits:

3.    Contrary to what is set out in the appellant’s written submissions, there is no mandatory obligation (in the sense identified by the High Court in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24) to “consider” the effect of s 473GB of the Migration Act 1956 (Cth) (Act) or of a certificate issued by a delegate of the Minister pursuant to that section. As the certificate in this case identifies (see Appeal Book (AB) 203), it relates to a document that was provided to the Minister’s department. It was therefore issued pursuant to s 473GB(1)(b). The appellant refers to it as a “purported” certificate but does not indicate any basis upon which any challenge is made to its validity.

4.    The reference to the High Court’s decision in Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 does not assist the appellant in relation to s 473GB of the Act. The identified sections of that judgment, which concerned a constitutional challenge to the validity of ss 501(3) and 503A(2) of the Act, refer broadly to the original jurisdiction of the High Court pursuant to s 75(5) of the Constitution and the analogous jurisdiction of this Court, and the circumstances in which information is required to be disclosed to the court exercising that jurisdiction. Section 473GB concerns the IAA’s discretion in relation to the disclosure of information to an applicant. The appellant has not challenged the validity of any provision of the Act in this appeal, and no notice has been issued under s 78B of the Judiciary Act 1903 (Cth).

5.    In any event, the issue relating to the certificate is concluded by the decision of the Full Court of this Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16). That Court held that the considerations that apply to certificates issued under Part 7 and Part 5 of the Act have no application in relation to fast track reviews pursuant to Part 7AA of the Act: see BBS16 at [85]-[101]. This is because (see in particular BBS16 at [97]-[100]) the procedural fairness obligations in Part 7AA are expressly limited: see s 473DA, referring to Division 3 of Part 7AA. It was therefore entirely a matter for the IAA as to whether to disclose the existence of the certificate. There was no duty on the IAA to do so: see BBS16 at [97]. Accordingly, it follows that the FCC did not err in not considering it.

6.    The first respondent notes that the appellant was represented before the FCC and was on notice that a certificate was issued pursuant to section 473GB of the Act. That certificate was contained in the Court Book filed and served on 9 September 2016 in the FCC proceedings: AB 203. The appellant had the opportunity to raise as a ground of review the issue now raised before this honourable Court but choose not do so. No error can be found in the reasons for judgment or judicial review conducted by the FCC because it failed to consider a ground of review not raised by a represented applicant before it.

72    The s 473GB certificate appears at AB 203. It appears from the certificate itself that the material is an “Identity Assessment Form” dated 29 October 2015. The material covered by the certificate is not in the Appeal Book.

73    In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (BBS16) a Full Court of this Court (Kenny, Tracey and Griffiths JJ) recently gave attention to whether there was a requirement to disclose the existence of a certificate issued under s 473GB at [85]-[101]. Their Honours considered whether the requirement for disclosure established in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; [2016] 243 FCR 1 (MZAFZ) applied to certificates issued under Pt 7AA of the Act. Having set out the relevant statutory regime contained in Pt 7AA (at [91]-[96]), their Honours reasoned:

97.    The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material [as is covered by a s 473GB certificate] is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).

98.    As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

74    Their Honours concluded at [99] and [100] that the test set out by Beach J in MZAFZ had no application in the context of a review conducted by the IAA pursuant to Pt 7AA of the Act. Their Honours found that the procedural fairness entitlements available to a review applicant had been exhaustively stated in s 473GB(3).

75    I am bound by that decision.

76    In consequence I am required to reject the Appellant’s submission that the primary judge was subject to an implied obligation to consider the existence or effect of a s 473GB certificate on the basis of the principles articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39]-[41].

77    The Full Court in BBS16 noted that there may be scope for a review applicant to successfully challenge a decision on the basis that the IAA had had regard to an invalid s 473GB certificate and the information it purports to cover, if the review applicant “somehow becomes aware of this fact” (at [100]).

78    Despite referring to it as a “purported certificate made under s 473GB(5) of the Act” (at [4]), the Appellant fails to establish any error in the court below.

79    No submissions were made to the primary judge to suggest the certificate was invalid. I acknowledge that in the circumstances, the Appellant had not been provided with the material the subject of the certificate and therefore would have been limited in his ability to assess and make submissions as to the validity of the certificate. However, that is the effect of the “severe limitations” of the regime contained in Pt 7AA of the Act, as interpreted by the Full Court in BBS16. It was not submitted by the Appellant in this Court that the certificate was facially irregular such as to have required the primary judge to have proceeded on the basis that it had been invalidly issued.

80    For reasons that I set out briefly below no relevant constitutional issue arises.

No Constitutional issue

81    The Appellant submits that this Court, in exercising its jurisdiction pursuant to s 75(v) of the Constitution, cannot enforce the express or implied limits set by parliament on a decision-maker exercising power under s 473GB(1) of the Act if the FCCA is not required to review the validity of the Minister’s exercise of that power. In support of that contention, the Appellant cites Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 347 ALR 350 at [42]-[46] and [48].

82    As the Minister identifies in his submissions, the Appellant has not given notice to the Attorney-General of the constitutional matter he seeks to agitate, as required pursuant to s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act).

83    However, independently of any steps taken or not taken by the Appellant, the nature of the submissions advanced by the Appellant require me to give consideration as to whether the relevant provisions of s 78B of the Judiciary Act have been engaged.

84    Assuming an issue in the Appellant’s appeal, properly understood, involves a matter or matters arising under the Constitution or involving its interpretation, it is my duty pursuant to that provision not to proceed to determine that issue or those issues unless and until satisfied that "notice of the cause, specifying the nature of the constitutional matter(s), has been “given to the Attorneys-General of the Commonwealth and the States and a reasonable time has elapsed since the giving of that notice” to allow the Attorneys-General to consider whether to intervene in the proceeding or seek the removal of the cause to the High Court.

85    Whether a proceeding involves a matter arising under the Constitution or involving its interpretation is a question for the Court to determine: Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) [2010] FCA 428; (2010) 184 FCR 516 at [12]-[14]. Section 78B has been held not to be engaged unless the constitutional point is at least arguable and its determination is required. As French J (as he then was) held in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292 at [13], “a matter should ‘really and substantially arise under the Constitution’ before it attracts the operation of s 78B”. Whether that is the case in the instance of Additional Ground 1 therefore requires legal analysis to be applied to the relevant facts.

86    I am unpersuaded that, properly understood, any constitutional issue arises in this appeal.

87    In Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [40]-[41] the Full Court (Griffiths, Kerr and Farrell JJ) gave attention to the nature of an appeal from a decision of a single judge of the FCCA brought under s 24 of the Federal Court of Australia Act 1976 (Cth):

40.    It is an appeal in the nature of a rehearing. This has important implications for the nature and scope of the appeal. It is well established that a rehearing is not a new hearing during which the original application is determined without regard to what happened in the Court below and without regard to its findings (see Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-210 per Windeyer J and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3 at [73] per North, Barker and Katzmann JJ).

41.    It is equally well established that the role of the Court on an appeal by way of rehearing is the correction of error. As Allsop J (as his Honour then was) emphasised in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [21] in such a case there is a “need to show error on appeal”. It is desirable to set out in full that paragraph from his Honour’s judgment (noting that Drummond and Mansfield JJ agreed with it):

However, this conclusion does not alter the need to show error on appeal. In Hamsher Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.

88    Special leave was granted to the appellant in those proceedings. Argument on that appeal has been had before the High Court and its decision reserved, but on my understanding of the submissions advanced, it was not contended that the principles stated at [40]-[41] were incorrect. The appeal went only to the nature of the error required to be established.

89    The fundamental point I make is that notwithstanding the form of the original appeal grounds which refer to errors made by the IAA in this proceeding this Court is exercising appellate jurisdiction. For an appeal to be allowed, error on the part of the court below, even if purely notional in respect of a ground not originally contended for, must be established.

90    I gave leave to the Appellant to rely on Additional Ground 1. However the terms of that ground cannot, on any plausible construction, be understood as an assertion that it was an error on the part of the court below that it failed to consider the constitutional validity of s 473GB of the Act.

91    Such an issue therefore does not arise in this appeal.

92    I need take the matter no further but I observe for completeness that in any event, a fundamental distinction must be made between the power of the Parliament to prescribe the powers and duties of an administrative tribunal such as the IAA (including the degree to which it must have regard to procedural fairness) and the constitutional incapacity of the Parliament to constrain the power of the High Court conferred pursuant to s 75(v) of the Constitution (and any other court vested with that jurisdiction) to supervise whether or not such a tribunal has acted within its powers and in compliance with the duties the Parliament has prescribed for it.

93    It may be accepted that this Court, and the court below, will construe any power or duty conferred on a tribunal having regard to the principle of legality – but the currently settled constitutional doctrine is that is an interpretive principle. It is not a constitutional restraint on the power of the Parliament to enact legislation in the form given effect to by the Full Court in BBS16.

94    I reject Additional Ground 1.

Additional Ground 2

95    Additional Ground 2 is as follows:

The Federal Circuit Court erred by not finding that the Immigration Assessment Authority misconstrued s 473DD of the Migration Act 1958 (Cth) when refusing to accept the information provided by the Appellant’s adviser.

96    I proceed on the basis that this ground and Ground 3 (in so far as it concerns written documents and submissions) are differently expressed articulations of the same issue.

97    The Appellant’s submissions with respect to this ground are as follows:

12.    On 23 May 2016, the Appellant sent to the IAA a media report relating to recent political developments in Iraq. The IAA found that the media report related to the possibility of violence between different Shia armed groups with which the Appellant had no connection and appeared to be referring to the situation in Baghdad, not Najaf. The IAA further found that the media report seemed to be highly speculative in that it cited only one source (who stated there is a risk of confrontation between the Shia parties with no analysis of the degree of risk or how or when it might develop in reality, or exactly how it might affect the Appellant in Najaf). In that context, the IAA was not persuaded that there were exceptional grounds which justified considering the media report pursuant to s 473DD of the Act.

13.     For the reasons that follow, there are a number of difficulties with the approach taken by the IAA in relation to the statutory application of s 477DD [sic] of the Act regarding the impugned media report.

14.    First, the media report made plain that there was a possibility of violence between different Shia armed groups. Read in its proper context, the risk of harm was not limited to members of the community strictly in Baghdad. The general thrust of the media report is that members of the Iraqi community (as a whole) were at risk of harm by reference to the recent political developments in that country.

15.    For example, given the risk of harm to the Iraqi country, this has “raised alarm” in the neighbouring country of Iran. The media report demonstrated that the invasion of the Green Zone had “shaken the foundation of the political system” in Iraq (which obviously applies throughout the country). Moreover, the author of the article postulated the possibility that the recent political developments in Iraq may plunge “Iraq into chaos”.

16.    The media report made plain that the “risk of a Shiite-on-Shiite confrontation is there”. That statement did not expressly limit such risk to confrontation occurring in Baghdad. The implication is that members of the Iraqi community (including those in Najaf) may be the subject of real harm regarding Shiite-on- Shiite confrontation.

17.    Secondly, the IAA took issue with the fact that the media report only cited “one source”. However, merely relying upon a source does not necessarily mean that information advanced is not credible. That Iran was very concerned about the political developments in Iraq at the relevant time plainly demonstrated that the prospect of harm in Iraq was more than “highly speculative”.

18.    Thirdly, the media report demonstrated that protesters beat up members of Parliament, broke furniture, and sent legislators fleeing for their lives. Plainly, in those circumstances, serious risk of harm to members of the Iraqi community more broadly was a real prospect. It follows that the Appellant would satisfy (at the very least) the complimentary protection ground in s 36(2)(aa) of the Act.

19.    The IAA’s analysis of the impugned media report was misplaced and did not correctly construe the article in its proper context. For that reason, the Appellant submits that the FCCA committed a jurisdictional error in finding that the IAA was correct to find that the new information did not meet the statutory description of exceptional circumstances under s 473DD of the Act.

(footnotes omitted)

98    The Minister submits:

7.    By this ground, the appellant challenges the decision by the IAA not to consider the media report referred to by the IAA at AB 186, footnote 2 (see IAA reasons at [6]-[7]). Section 473DC(2) of the Act makes it clear that the IAA has no obligation to accept new information provided to it by a referred applicant. Section 473DD of the Act imposes a statutory prohibition on the IAA considering new information: that prohibition applies unless there are exceptional circumstances that justify considering the new information AND the new information meets one of the requirements of either s 473DD(b)(i) or (ii) of the Act, noting that s 473DD(a) and (b) are cumulative requirements: see M174 v Minister for Immigration and Border Protection [2018] HCA 16 (M174) at [29]-[31] (Gageler, Keane and Nettle JJ) and at [88] (Gordon J).

8.    The appellant takes issue with the IAA’s treatment of the media report by reference to its content (see AS paras 13-17) but does not identify the basis upon he says that the prohibition ought not apply. Specifically, no argument is put as to why, in light of the IAA’s assessment of its content, there were nonetheless exceptional circumstances that justified the prohibition on its receipt not applying. This is particularly the case given that the media report was, in essence, country information and it is well established that that the assessment/evaluation and ultimately choice of country information is a matter for the IAA: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (NAHI) at 11. Nothing in Part 7AA departs from the principle established by NAHI.

9.    In those circumstances, the appellant has not established that there was any error on the part of either the IAA or the FCC in relation to the IAA’s evaluation of whether the circumstances were exceptional such that the prohibition on the consideration of new information did not apply (see s 473DD(a)) nor identified which of the additional requirements of s 473DD(b) of the Act he asserts was met.

99    Sections 473DB is set out above (at [49]). As earlier noted, save as otherwise provided for by Pt 7AA the IAA is to make its decision on the materials that were before the delegate without a hearing.

100    Section 473DC prescribes the limited circumstances in which the IAA may consider new information:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

101    Section 473DD provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

102    As identified by the Minister, both (a) and (b) of s 473DD must be satisfied in order for the IAA to be entitled to consider new information.

103    In M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 (M174) the High Court gave consideration to the meaning of “exceptional circumstances” in the context of s 473DD. The plurality (Gageler, Keane and Nettle JJ) observed (at [30]):

Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

(Footnote omitted)

104    The IAA’s consideration of the material provided by the Appellant’s representative on 23 May 2016 appears at [4]-[7] of its reasons, as set out at [8] above.

105    The IAA concluded that the submission provided on 23 May 2016 was not new information “[t]o the extent that [it was] based on information provided by the applicant to the delegate”, and had regard to it accordingly.

106    However the IAA declined to consider a news article accompanying that submission.

107    The IAA accepted that the news article satisfied s 473DD(b)(i). It was relevantly “new information”. The article had not been before the Minister’s delegate and it could not have been provided prior to the making of the visa refusal decision on 5 May 2016, given that it was published on the same date.

108    However, the IAA was not satisfied that there were exceptional circumstances to justify it considering that new information.

109    The IAA reasoned (at [7]) that the new information was relevant only to the possibility of violence between different armed Shia groups with which the Appellant had no connection; that the information referred to the situation in Baghdad not Najaf; and that the new information was highly speculative.

110    I reject that FCCA erred by not finding that the IAA misconstrued s 473DD of the Act when refusing to accept the information provided by the Appellant’s adviser.

111    The Appellant submits that the content of the article provided support for the Appellant’s claim to fear harm and was therefore relevant to the Appellant’s visa application. The Appellant submits that the IAA’s reasoning at [7] was wrong, and on that basis it was incorrect to conclude that there were no exceptional circumstances to justify consideration of the new information.

112    However that submission impermissibly conflates merits review and judicial review.

113    The grounds of appeal asserted are that the primary judge erred in not concluding that the reasoning processes and findings of the IAA revealed a misunderstanding of its statutory duty. No error in that regard is apparent. The considerations taken into account by the IAA were those appropriate to its consideration of the issue before it. It is not dispositive that a different decision maker might have reached a different conclusion as to the inferences conveyed by the article. It is not submitted in this appeal that the findings of the IAA were legally unreasonable in the sense of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[135] or DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [30]. In any event I would reject that such error was manifested.

114    Having regard to the reasoning of the plurality in M174 (see also BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 per White J at [39]-[43]), I am not satisfied that the primary judge erred as Ground 3 and Additional Ground 2 allege.

115    I reject Additional Ground 2 and Ground 3 as not already determined by the Court.

disposition

116    The appeal is dismissed with costs.

Associate:

Dated:    15 June 2018