FEDERAL COURT OF AUSTRALIA

BEC17 v Minister for Immigration and Border Protection [2018] FCA 1884

ORDERS

THE COURT ORDERS THAT:

1.    Leave is refused for the appellant to rely upon proposed grounds 1 and 6 of the amended notice of appeal.

2.    The appellant have leave to rely upon proposed ground 7 of the amended notice of appeal.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This is an appeal from orders and a judgment dated 29 June 2018 of the Federal Circuit Court of Australia (FCCA). The decision is reported as BEC17 v Minister for Immigration and Border Protection [2018] FCCA 1711. The FCCA dismissed the appellant’s judicial review challenge to a decision dated 23 February 2017 by the Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision not to grant the appellant a protection visa.

Summary of background facts

2    The appellant is a citizen of Iraq and is a Shia Muslim. In the statutory declaration dated 27 March 2016 which accompanied his application for a protection visa, the appellant claimed that he feared harm if he were returned to his home town in Iraq on the ground that there was lawlessness, chaos, kidnapping and extortion and that those who have family overseas are usually perceived to be wealthy and are targeted by gang members or militia members. The appellant said that he had three brothers who lived in Australia and were Australian citizens, a brother who lived in Germany, a sister who lived in Sweden and other sisters who lived in Iraq. He said that his wife and two children lived in Iraq.

3    The appellant also claimed that he would be killed or kidnapped if he were returned to Iraq because the community there knew that he had siblings who lived in Australia, Germany and Sweden. He said that his cousin had been kidnapped one year before the appellant left Iraq and that he was released only after his cousin’s family paid the kidnappers US$50,000. He also claimed that a neighbour, who was a doctor, had been kidnapped one month before the appellant left Iraq.

4    The appellant claimed that he left Iraq because, shortly before his departure, he heard from a friend that a gang was intensifying its efforts to kidnap people, who were seen to be wealthy, in the street were the appellant lived. He also claimed to have been told by some friends that there were “eyes on me” because all his brothers lived overseas.

5    The appellant claimed that a group of people forced their way into his house when the appellant and his family were visiting relatives in another area. He claimed that around six months after arriving in Australia, his wife and children moved to live with his wife’s family on the outskirts of his home town because of a fear that the children would be kidnapped.

6    The appellant made clear in [9] of his statutory declaration that his claim for protection was based on his membership of a particular social group, namely people who were perceived to be wealthy because they had brothers living overseas.

The IAA’s reasons summarised

7    The IAA acknowledged that it had received a submission dated 13 February 2017 from the appellant’s representative. The IAA referred to s 473DD of the Migration Act 1958 (Cth) (the Act) and summarised its terms. The IAA noted that the representative’s submission referred to a UK Upper Tribunal decision, which had been published on 23 January 2017. The IAA noted that, in those circumstances, that information could not have been provided to the delegate because of its recent publication. The IAA then turned its attention to whether there were “exceptional circumstances” which warranted it having regard to this new information. The IAA summarised what the Upper Tribunal case was about. The central issue had been identified there as “whether a person with the appellant’s particular profile would be at real risk of serious harm if he is returned to Baghdad at this time”. The appellant in that case was a Sunni Muslim who had worked for a foreign-owned company in Baghdad and had spent time in the West. He had contended that this heightened the risk of kidnapping. The IAA reasoned that as the appellant’s profile and city of return in the Upper Tribunal case were different from those of the appellant in this matter, it was not satisfied that exceptional circumstances warranted consideration of the Upper Tribunal’s decision and it paid no regard to it. The IAA accepted the appellant’s fears of being killed or kidnapped by criminals; that his cousin had been kidnapped and held for ransom for ten days; that there had been other kidnappings in his home town; that he was the victim of a house break-in and theft while he and his family were not at home; and that he had family members who lived in Western countries. The IAA found, however, that it was not satisfied that the house break-in was an attempted kidnapping.

8    The IAA described the appellant’s cousin’s kidnapping as one which appeared to be a crime of opportunity rather than a planned event. The IAA also noted that the appellant and his family had lived in his home town for approximately seven years before he left Iraq, that the household only had a single income, that he worked as a construction labourer and did not own a motor vehicle. Apart from having siblings who lived overseas, the appellant provided no evidence to indicate why his household would be perceived as a high value target, such that he would be of particular interest to criminals or militia.

9    The IAA concluded that the appellant did not have a real chance of being harmed as the victim of kidnapping or other acts of violence if he were returned to his home town area because:

(a)    although the IAA accepted that the appellant had been robbed in early 2013, it concluded that neither he nor his family had been the victims of more serious crimes in the past;

(b)    there was no claim by the appellant that any of his siblings who remained in his home town area, or his wife or children, had been victims of any crimes since he departed Iraq;

(c)    while country information indicated that generalised violence occurs in the appellant’s home town, it was at a significantly lower level than in Baghdad; and

(d)    notwithstanding that the appellant did not claim to fear harm based on his status as a Shia Muslim, the IAA said that it had considered that matter but had concluded, based on the evidence before it, that the appellant was not at real risk of harm from generalised violence, Shia militias or sectarian conflict in his home town. It said that the referred material indicated that Shias in Shia-dominated provinces of southern Iraq were at a low risk of generalised violence. It added that there was nothing in the referred material to indicate that the appellant faced harm from militias or armed groups due simply to the fact that he was a Shia.

10    The IAA also explained why it rejected the appellant’s claim that he faced harm because he had left Iraq and sought asylum in Australia. It added that there was nothing in the country information to suggest that returnees were perceived as wealthy and consequently targeted by criminals.

11    It is desirable to set out [21] of the IAA’s reasons for decision, which summarise its conclusions (emphasis added and footnotes omitted):

21.    I have concluded above that the applicant does not face a real chance of harm due to criminal activity or sectarian violence, having relatives who reside in western countries, on the basis that he is a Shia or that he claimed asylum in Australia. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on this ground.

12    For these reasons, the IAA affirmed the delegate’s decision.

The FCCA proceeding

13    The appellant represented himself when he filed his originating application below on 21 March 2017. He initially raised four grounds, namely that the IAA had failed to consider his claim fairly; it did not consider his case “properly according to the Migration law in Australia”; he would suffer harm if he were returned to his country of origin and that the IAA had failed to consider his claim for complementary protection. It is evident that the appellant then obtained legal representation. An amended originating application was filed in the FCCA on 1 May 2018. It was prepared by the same firm of solicitors who now represent the appellant in the appeal. The amended judicial review application raised two grounds. Ground 1 was that the IAA had made a jurisdictional error in failing to address the appellant’s claims whether he was at risk if he were returned to Iraq either as a returnee, whether this risk was assessed individually or cumulatively with the risk of increased violence.

14    Ground 2 alleged that the IAA had fallen into jurisdictional error by misconstruing s 473DD of the Act and by failing to ask correct questions or asking incorrect questions and failing to take all circumstances into account.

15    The amended judicial review application in the FCCA was not a model of clarity.

16    The primary judge set out the full terms of both grounds of judicial review. Having regard to submissions made by the appellant’s counsel, as well as the terms of the amended judicial review application, the primary judge at [15] described ground 1 as involving the following four claims:

(a)    the IAA did not consider the appellant’s claims based on his being a returnee from a Western country;

(b)    there was before the IAA a claim based on generalised violence in the appellant’s home town, but the IAA failed to consider that claim;

(c)    the IAA assessed the appellant’s claim of fear of harm by incorrectly asking itself whether the appellant would face the risk of more serious crime, such as kidnapping or other acts of violence; and

(d)    the IAA erroneously assessed the risk of future harm to the appellant if he were returned to his home town by reference to the relative risk of harm in Baghdad.

17    The primary judge rejected each of these claims for the following reasons. As to the first, the primary judge found that the IAA did in fact address the claim based on the appellant having left Iraq and seeking asylum in Australia. His Honour referred to country information in rejecting this claim.

18    As to the second matter, the primary judge concluded at [17] that there was no claim before the IAA based on generalised violence, rather the appellant’s claims focused upon him being kidnapped or harmed because he would be perceived as wealthy and had siblings who lived in Western countries. This claim was considered and not accepted by the IAA, so found the primary judge.

19    In any event, the primary judge stated at [18] that if the appellant did claim to fear harm based on generalised violence, the IAA had made “dispositive findings” about that in the context of considering whether he would face harm because he was a Shia Muslim. The primary judge made reference to the IAA’s conclusion, based on country information, that Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence.

20    As to the third matter, the primary judge found that the IAA had made a finding that nothing in the material before it indicated that the prevalence of crime in Iraq had risen to such a level as to give rise to a real chance that the appellant would suffer kidnapping or other acts of violence. In the context, however, where the appellant claimed that he feared kidnapping or some other harm because of a perception that he was wealthy and had siblings living in Western countries, the IAA’s finding addressed the appellant’s claim to fear harm stemming from him being a target for extortion and matters relating thereto.

21    As to the fourth matter, although the IAA referred to the appellant’s home town as having a casualty rate of 10 percent of that prevailing in another province, the primary judge was not satisfied that the IAA had assessed the risk to the appellant if he were returned to his home town by reference or solely by reference to the greater risk of harm in the other province. This was because of the IAA’s reference to the appellant’s personal profile, including the fact that the appellant and his family had lived in his home town since 2013, as well as his employment as a construction worker etc. Secondly, the primary judge referred to the IAA’s finding that none of the appellant’s family had suffered any harm in his home town, either before or after the appellant left Iraq. Thirdly, the primary judge referred to the IAA’s reliance upon country information (provided by the appellant’s representative), which contained materials specifically about the crime situation in the appellant’s home town. This information underpinned the IAA’s finding that it was not satisfied that there was a real risk that the appellant would be a victim of kidnapping or other acts of violence or that he would otherwise face a real risk of harm from generalised violence. The primary judge said that these findings were made not on the basis of the IAA’s assessment of the relative risk of harm in the appellant’s home town when compared with other regions in Iraq, but rather on the basis of information that related specifically to the appellant’s home town, his profile and his family.

22    The primary judge then addressed ground 2, which related to s 473DD of the Act.

23    At [33] the primary judge identified the following two issues as arising from ground 2:

(a)    whether the IAA engaged in an active intellectual process when considering whether there were exceptional circumstances that would warrant the IAA giving consideration to the information it identified as new information, namely the information set out in the submissions made to the IAA by the appellant’s representative; and

(b)    whether the IAA adopted an inappropriately narrow construction of the phrase “exceptional circumstances”.

24    As to the first of those matters (i.e. see [23(a)] above), the primary judge explained at [34] why he found that the IAA had engaged in an active intellectual process. His Honour considered that it was reasonably open to the IAA to characterise the information in the submissions into three categories, namely:

(a)    that which constituted submissions, and was not “information”;

(b)    information that had already been provided to the delegate and was not therefore new; and

(c)    that part of the UK Upper Tribunal decision that was extracted in the submissions, which the IAA considered to be “new information”.

25    As to the last of those categories, the IAA had asked whether there were exceptional circumstances which warranted consideration of the Upper Tribunal decision, but it concluded that there were not because the information was found to be irrelevant or not sufficiently relevant in assessing the appellant’s claims. The primary judge described this as manifesting an active intellectual engagement.

26    As to the second of the matters (i.e. see [23(b)] above), namely that relating to the allegedly narrow construction of “exceptional circumstances”, the primary judge rejected the appellant’s contention that the IAA had adopted too narrow a construction. It is desirable to set out [37]-[38] of the primary judge’s reasons for judgment:

37.    In these circumstances it cannot be said the IAA adopted a narrow construction of the expression “exceptional circumstances”. That is so because it is difficult to imagine how it could ever reasonably be said that exceptional circumstances exist in relation to information that is not relevant to the issues that are before the IAA. If anything, characterising new information as relevant would be a necessary, although not sufficient, condition before the IAA could rationally or reasonably consider whether there are exceptional circumstances that would warrant the IAA considering such information.

38.    Although not raised by any party, it is at the very least arguable that, having concluded the Upper Tribunal information was not relevant, the IAA ought to have concluded that it was not “new information” within the meaning of s.473DC(1) of the Act. As I have already noted, under s.473DC(1) information will be “new information” if both the information was not before the Minister when the Minister made the decision under s.65 of the Act and the IAA considers that information “may be relevant”; and the IAA considered the Upper Tribunal information was not relevant. Assuming, however, the IAA ought to have concluded the information was not “new information” because it was not satisfied it was relevant, its failure to do would not have resulted in the IAA having made a jurisdictional error. That is so because, by not being satisfied there were exceptional circumstances to warrant its considering the Upper Tribunal information, the IAA had concluded it would not consider that information, which is the same result the IAA would have arrived at had it concluded the Upper Tribunal information was not “new information” because it was not satisfied it was relevant.

27    The primary judge then stated at [39] that he was not satisfied that the IAA had applied an inappropriately narrow or otherwise erroneous construction of the phrase “exceptional circumstances”.

28    The primary judge refused leave to permit the appellant to raise an additional ground relating to procedural fairness and the operation of s 473GB of the Act. Leave was refused on the basis that, applying Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111 (BBS16), any procedural fairness requirements operating in respect of other parts of the Act do not apply to Pt 7AA.

The appeal

29    Until shortly before the hearing of the appeal, and at the time the original notice of appeal was filed, the appellant represented himself. He then retained legal representation. The appellant sought to rely upon an amended notice of appeal, which was prepared by his solicitors. It reduced the number of grounds of appeal in his original notice of appeal. The appellant acknowledged that he required leave to rely upon proposed grounds 1 and 6 in his amended notice of appeal because they had not been raised below. The Minister opposed leave being granted in respect of these two grounds but did not oppose the appellant having leave to rely upon ground 7.

30    The relevant part of the amended notice of appeal is in the following terms (without alterations):

Grounds of appeal

1.    The Court below erred in finding that the Immigration Assessment Authority ("Authority") had failed to properly consider the Appellant's claims under s36(2)(aa) of the Migration Act 1958 ("the Act").

2.    The Appellant seeks leave to rely on the additional grounds as well which he mentioned in his submission he submitted to the courts on 10 August 2017.

Ground One

The Primary Judge failed to exercise jurisdiction by failing to find that the Authority had failed to consider an integer of the Appellant's claims, leading to jurisdictional error.

Particulars

a)    The Appellant stated that he fears going back to Iraq because of the extortion activities of the militia. He went further to state " ... sometimes the militia try to extort people to finance their activities, in the same manner the gangs do the same, there are a lot of incidents in which the people got kidnapped or killed after these gangs request a ransom money to be paid within specific time" ('Extortion Claim") [Paragraph 4,AB84]

Ground 6

Jurisdictional Error - Failure to consider the Appellant's claim as presented. The Authority misstated and failed to deal with the Appellant's case as presented, in that it failed to consider whether the Appellant faced a risk of harm in Iraq by reason of his membership of a Particular Social Group who are perceived to be wealthy, namely the Iraqis who have brothers living in overseas countries (the "PSG"). The Authority failed to perform its tasks as required by law, thereby falling into error.

Particulars

a)    At Paragraph 9 of his statutory declaration [AB 85] the Appellant expressly stated that he was a member of a Particular Social Group, namely Iraqis who have brothers living in Overseas Countries

b)    At Paragraph 4 of his statutory declaration [AB 84], the Appellant further stated that he feared going back to Iraqi because kidnapping and extortion was common, particularly for Iraqis who have family members Overseas and are perceived to be wealthy

c)    The Authority noted that the Appellant claimed to fear harm and would not let his children attend school because he feared that they would be kidnapped. The Authority further noted that the Appellant feared that he would be a target for kidnappers because he has family overseas. [AB 175, Last bullet Point]

d)    The Authority accepted that the Appellant had family members who reside in western countries. [Paragraph 10, AB175]

e)    The Authority noted that the Appellant had contended that he is at risk of harm as a member of a particular social group "people who are perceived as being rich because they have family members overseas" [Paragraph 13, AB176]

f)    The Authority concluded that the Appellant had provided no evidence to indicate why his household would be perceived as a high value target, such that it would be of particular interest to criminals or militia. ["Conclusion"]. [Paragraph 14, AB177],

Ground 7

The learned Primary Judge failed to consider whether the Authority fell into jurisdictional error in failing to exercise its jurisdiction in respect of information submitted to the Authority (IAA at [4]-[5], failing to consider the new information in accordance with law and by adopting an unduly narrow construction of s 473DD

Particulars

(a)    In Paragraph 5 of the Decision, the Authority noted that the Appellant's representative referred to the UK Upper Tribunal case BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018, which was published on 23 January 2017 (the "UK Case"). In reviewing whether exceptional circumstances warranted consideration of the UK Case, the Authority found that the Appellant's profile and the city of return differ from that of the Appellant in the UK Case.

Ground 8

Jurisdictional Error - The IAA failed to exercise the discretionary powers conferred on it pursuant to s 473GB(3) within the bounds of reasonableness. Non-disclosure of the existence of the certificate and the factors that influenced the exercise of its discretion under 473GB(3) in circumstances where the IAA had regard to the material undermined the Appellant's participation in the proceeding and was unreasonable, leading to an IAA decision that was plainly unjust. Lacking an evident and intelligent justification.

PARTICULARS

a.    The Certificate was dated 18 January 2016. It preceded the delegate's decision of 23 February 2017. The Certificate was part of the material before the delegate and as such was part of the review material.

b.    The IAA acknowledged that it had regard to the material referred by the secretary under s 473CB (this included the certificate) - [Paragraph 3, AB 174]

31    In the course of hearing, the appellant’s counsel said that proposed ground 8 was not pressed. Accordingly, nothing more needs to be said about it. Moreover, it was confirmed that [1] of the grounds of appeal was not pressed.

The appellant’s submissions summarised

32    The appellant belatedly provided an outline of written submissions dated 20 November 2018, which were prepared by his counsel. He confirmed that he did not press grounds 2, 3, 4 and 5 in the original notice of appeal.

33    In support of proposed ground 1 in [2] of the amended notice of appeal, the appellant contended that the primary judge failed to exercise jurisdiction by not considering or finding that the IAA had failed to consider what he described as his “extortion claim”. He defined the extortion claim by reference to his statutory declaration dated 27 March 2016 in which he said that kidnapping and extortion for those who have family members living overseas was very common in his home town and that a family who had members living overseas are usually perceived as wealthy and are therefore targeted. He stated in his statutory declaration that “sometimes the militia try to extort people to finance their activities, in the same manner the gangs do the same, there are a lot of incidents in which the people got kidnapped or killed after these gangs request a ransom money to be paid within specific time” (without alteration).

34    Although the appellant acknowledged that the IAA had accepted that he feared being killed or kidnapped by criminals, he contended that the IAA did not deal with his extortion claim. He contended that this amounted to a constructive failure to exercise jurisdiction and that the primary judge erred in not so finding.

35    In respect of proposed ground 6, the appellant contended that the primary judge erred in not finding that the IAA had fallen into jurisdictional error by misstating and failing to deal with the appellant’s case as presented, namely that he faced a risk of harm in Iraq by reason of his membership of a particular social group. He identified this particular social group as people who are perceived to be wealthy because they have brothers living in overseas countries. The appellant contended that he had raised this claim in his statutory declaration and that the IAA erred when it dismissed the claim on the basis that the appellant had provided no evidence to indicate why his household would be perceived as a high value target when the appellant’s claim was based upon the fact that he would be perceived to be wealthy because he had brothers living overseas. The appellant contended that the IAA should have made findings on whether the particular social group which the appellant alleged to be a member of was a particular social group for the purposes of the Refugees Convention; whether the appellant was a member of such a group; whether the authorities in Iraq failed to afford effective protection within the meaning of s 5LA of the Act from opportunistic acts of violence against members of that particular social group; and, if there was such a failure by the authorities in Iraq, how did this affect the real chance of acts of violence against the appellant in the future.

36    As to proposed ground 7 (which substantially reflects ground 7 in his original notice of appeal), the appellant accepted that the Upper Tribunal case which was referred to in his representative’s submission dated 13 February 2017 was “new information” for the purpose of s 473DD. The appellant contended, however, that the IAA had adopted too narrow a construction of the phrase “exceptional circumstances” in s 473DD. This was because the IAA never turned its mind to whether the fact that the Upper Tribunal decision post-dated the delegate’s decision was itself relevant to the IAA’s determination as to whether there were “exceptional circumstances” to justify considering the new information. The appellant submitted that the IAA should have adopted a broader construction which “favoured consideration of sub-para (b)(i) for the purpose of construing 473DD(i)(a)” (sic). The appellant relied upon White J’s decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16) at [9] and the subsequent affirmation of his Honour’s view in subsequent Full Court decisions, including BBS16 at [102] per Kenny, Tracey and Griffiths JJ. Reliance was also placed on Plaintiff M174/2016 v Minister for Immigration Border Protection [2018] HCA 16; 92 ALJR 481 at [29]-[31] per Gageler, Keane and Nettle JJ, Minster for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (CQW17) at [51] per McKerracher, Murphy and Davies JJ and CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [45] and [46] per Derrington J.

The Minister’s submissions summarised

37    The Minister opposed the grant of leave in respect of proposed grounds 1 and 6. He relied on the fact that the appellant was legally represented in the FCCA and had not pressed in the amended originating application below the matters which now underpin these proposed grounds. The Minister submitted that no other explanation had been provided as to why grounds 1 and 6 had not been run below and he also submitted that those grounds lacked sufficient merit to warrant leave being granted.

38    As noted above, the Minister did not oppose the appellant relying upon ground 7. The Minister submitted that ground 7 should be dismissed.

Consideration and disposition of the appeal

39    It is appropriate first to address the question whether the appellant should have leave to raise proposed grounds 1 and 6. Leave is required because, as noted above, the appellant accepted that they were raised for the first time. The Minister did not contend that he would suffer any real prejudice if the grounds were now run.

40    It is significant to recall that the appellant had legal representation below. This has a bearing on whether matters which were not put below should now be raised for the first time on appeal. In the particular circumstances of this matter, whether it is expedient in the interests of justice to grant leave includes consideration of the sufficiency of the explanation as to why these matters were not pressed in the amended application below and whether the proposed grounds have sufficient merit (see generally VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] to [48] per Kiefel, Weinberg and Stone JJ). These matters will now be addressed.

41    On the first of those matters, the appellant’s current counsel said from the Bar table that she had taken a different view to the appellant’s previous legal representative as to the merits of proposed grounds 1 and 6. With the Court’s leave, the appellant filed two affidavits which purported to explain why these grounds had not been raised below.

42    The first affidavit, which was affirmed by the appellant’s solicitor, simply stated that when he received the appellant’s submissions which had been prepared by his current counsel, that counsel had taken a different view to the grounds in the original notice of appeal. He explained that he subsequently prepared an amended notice of appeal. The affidavit contained no explanation as to why the grounds were not run below.

43    The second affidavit, which was affirmed by the appellant, simply stated that after he lodged an appeal from the FCCA judgment, the appellant’s solicitor “made it clear to me that he would do his best to get a barrister to assist with my case”. The appellant deposed that he was informed by his solicitor (through an interpreter) that his solicitor had found a barrister to represent him at the hearing before this Court. Curiously, the appellant’s affidavit also annexed correspondence between the appellant’s solicitor and other barristers, whom the solicitor attempted to brief, but which attempts were described as “futile”. The appellant’s affidavit contained no explanation as to why grounds 1 and 6 were not run in the FCCA below. The lack of any sufficient explanation in either the appellant’s or his solicitor’s affidavit as to why the grounds were not run below weighs against any leave to appeal.

44    Turning now to consider the merits of the proposed grounds, it is convenient to deal first with proposed ground 1. This ground has no merit for several reasons. First, the IAA plainly did address the appellant’s claim relating to extortion. It considered and rejected that claim for reasons which are set out in [14] of its reasons for decision. There, the IAA stated that the appellant had provided “no evidence to indicate why his household would be perceived as a high value target, such that it would be of particular interest to criminals or militia” (emphasis added). The appellant himself had stated in his statutory declaration that it was not possible to distinguish gang members from the militia members.

45    As the Minister pointed out, there is a second reason why proposed ground 1 has no merit. It relates to the fact that, as postulated, the proposed ground fails to raise a claim within the meaning of s 5J of the Act. In particular, the ground as postulated makes no reference to the appellant’s claim for protection being based on membership of a particular social group (in contrast with proposed ground 6) and that no other element of s 5J is referred to in the claim. I accept this submission. Proposed ground 1 is doomed to fail.

46    For these reasons, leave is refused to amend the notice of appeal in respect of proposed ground 1.

47    As to proposed ground 6, which alleges that the IAA failed to consider the appellant’s claim relating to his membership of a particular social group (i.e. people who are perceived to be wealthy because they have brothers living in overseas countries), this claim was adequately considered and addressed by the IAA. In [6] of its reasons for decision, in which the IAA summarised the appellant’s claims for protection, express reference was made to his claim that because “he has family members overseas his family is seen as wealthy, making him a target for kidnappers”. In [14] of its reasons for decision, the IAA made express reference to its acceptance of the appellant’s claim that he had a number of siblings who had fled Iraq and sought asylum overseas. But it then added that he had provided no evidence to indicate why his household would be targeted by criminals or militia, having regard to the fact that his household had a single income and he had worked as a construction labourer and did not own a motor vehicle. Furthermore, in [21] of its reasons for decision, in which the IAA summarised why it affirmed the delegate’s decision, express reference was made to the IAA’s finding that the appellant did not face a real chance of harm due to inter alia “having relatives who reside in western countries”. These statements plainly demonstrate that the IAA did consider and reject the appellant’s claim relating to his alleged membership of a particular social group.

48    The IAA was not required to make specific findings on related matters, such as whether the appellant did in fact belong to a particular social group. As Finkelstein J observed in MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [17]-[18] and [25], the principles established in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 do not apply where there is a fundamental and determinative reason for rejecting a claim.

49    For these reasons, leave is refused to amend the notice of appeal in respect of proposed ground 6.

50    As to ground 7, which relates to the proper construction of s 473DD, I am not satisfied that the FCCA erred in rejecting the appellant’s contention that the IAA had adopted an unduly narrow construction of the provision. The IAA addressed the requirements of s 473DD and found that they were not satisfied in relation to information in the appellant’s submission dated 13 February 2017 which referred to the UK Upper Tribunal decision. The IAA found that this information could not have been provided to the delegate because of its recent publication and that there were not exceptional circumstances to justify its consideration. The primary judge’s reasons for rejecting this ground are summarised and/or set out in [25] and [26] above. The appellant has not identified any arguable appealable error in the primary judge’s reasons relating to this matter.

51    I accept the Minister’s submission that the IAA’s construction and application of s 473DD was consistent with authorities such as BBS16 and CQW17. Those authorities establish that the expression “exceptional circumstances” is to be given a broad meaning and that the IAA should consider all relevant circumstances. The matters in s 473DD(b)(i) and/or (ii) will usually form part of that consideration, as White J observed in BVZ16 (see also CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148 (CHF16) at [44] per Gilmour, Robertson and Kerr JJ).

52    What is critical about this case, however, is that the IAA found at [5] that, even though the Upper Tribunal case constituted “new information” within the definition in s 473DC (which necessarily included a finding that the IAA considered that the information “may be relevant”) (emphasis added), when it then turned to consider the requirements of s 473DD, the IAA was not satisfied that there were exceptional circumstances to justify considering the new information simply because, when analysed more closely, the information was not relevant to the making of its decision. That is because the Upper Tribunal case concerned a person who had a different profile and was from a different part of Iraq than the appellant here. As the primary judge pointed out at [38] it may have also been open to the IAA to not regard the Upper Tribunal case as constituting “new information”.

53    The IAA having come to the threshold view, however, that the information might be relevant so that it qualified as “new information”, I see no error on the part of the IAA in concluding that, after a closer examination of the information, there were no exceptional circumstances to warrant its further consideration because of its lack of relevance. Having regard to that view, which was plainly open to the IAA, it is difficult to think of any other matters which could ever outweigh that finding in determining whether or not there are exceptional circumstances. The IAA’s ultimate finding on lack of relevance was central to its assessment of “exceptional circumstances”. The appellant did not challenge that ultimate finding.

54    For these reasons, ground 7 is rejected.

Conclusion

55    For these reasons, leave is refused to raise proposed grounds 1 and 6 in the amended notice of appeal. The appellant may rely upon proposed ground 7, but it is rejected. Accordingly, the appeal must be dismissed, with costs.

Associate:

Dated:    30 November 2018