FEDERAL COURT OF AUSTRALIA

BMP17 v Minister for Home Affairs [2019] FCA 112

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal by the addition of proposed ground 3 is refused.

2.    Appeal dismissed.

3.    The appellant to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority). The Authority affirmed the decision of a delegate of the Minister to refuse to grant the appellant a protection visa: BMP17 v Minister for Immigration and Border Protection [2018] FCCA 1127.

Background

2    The appellant is an Iraqi citizen who arrived in Australia as an unauthorised maritime arrival in April 2013.

3    The appellant was informed in April 2016 that the Minister had exercised his discretion under s 46A of the Migration Act 1958 (Cth) (Act) to permit the appellant to make a valid visa application, and in July 2016 the appellant made an application.

4    In November 2016 a delegate of the Minister refused to grant the appellant a protection visa.

5    In accordance with the fast track regime, the delegate's decision was referred to the Authority for review. The Authority affirmed the delegate's decision not to grant the appellant a protection visa.

6    The appellant filed an application for judicial review in the Federal Circuit Court and in May 2018 the primary judge affirmed the delegate's decision.

7    The appellant has appealed to this Court. The original notice of appeal contained only one ground, being that the decision-maker failed to give due consideration to the appellant's claims.

8    Shortly before the hearing, the appellant filed a minute of amended grounds of appeal, containing three grounds of appeal, and an outline of submissions directed to the amended grounds of appeal.

9    At the hearing, I granted leave to amend the grounds of appeal with respect to grounds 1 and 2, but reserved the position with respect to ground 3.

10    In short, the issues on this appeal are whether the Authority erred in failing to take into account new information about alleged threats; whether the Authority acted unreasonably in relying upon post-dated documents that potentially undermined the claims as to the existence of a group allegedly responsible for those threats, being the 'Fight for Just Punishment' group; whether the Authority wrongly made a critical factual finding as to the nature of the appellant's employment in Iraq; and, accordingly, whether the primary judge erred in failing to find that those errors on the part of the Authority justified the grant of the relief sought by the appellant on his judicial review application.

The protection claim

11    The protection claim before the delegate and Authority was as follows.

12    The appellant was born in the city of Nasiriya, in Dhi Qar province, in the south of Iraq. Other than some months spent with his aunt in Baghdad just prior to his travel to Australia, the appellant lived in Nasiriya all of his life. His family members continue to live in Nasiriya, with the exception of one brother who is currently in the United States.

13    In January 2010 the appellant was employed on a contract basis for a company called KBR, which provided provisions to US troops stationed in the area. His work involved processing orders for food and drink placed by different military units in KBR's computer systems. The appellant worked on the Imam Ali air base, which was an Iraqi base where many United States soldiers were stationed.

14    In November 2011 the appellant's contract, and those of another 11 local Iraqis employed in his section of KBR, ended. Sometime after the end of his contract, his mother received on his behalf three or four verbal messages from the 'Islamic Resistance in Iraq' or the Fight for Just Punishment group. The appellant's mother received the verbal messages on his behalf because she was in charge of the home and was always at home. The group told his mother to tell the appellant to meet them at a certain address. The appellant and his mother did not know of the group or what the group wanted so they ignored the messages. The appellant claimed that members of the group used to loiter in the vicinity of his home at night. They came in cars with tinted windows, harassed him and his family and threw things at his home.

15    The appellant claimed that the aim of the Islamic Resistance in Iraq is to punish Iraqis perceived to be sympathetic to foreign interests and that the Fight for Just Punishment group was one of a number of groups that formed the Islamic Resistance in Iraq. He claimed that the Fight for Just Punishment group was the part of the Islamic Resistance in Iraq that wished to harm him.

16    The appellant claimed that his uncle knew some people who knew the group, and his uncle went to meet with those people. They told his uncle that they had a letter for the appellant that their superiors had asked them to pass on. They said the appellant had to come and see them. Some other people had told them that the appellant worked with the Americans and they wanted to discuss this with the appellant. They also told the appellant's uncle that the appellant was suspected of passing information about the militias to the US military. The appellant claimed he received this letter on 6 March 2012. A document purporting to be a copy of a translation of the letter read as follows:

To hell with bad fate

In the name of God the strong the mighty

To/traitor [redacted]

Since you service the American occupation in Iraq, with all you intellectual and linguistic abilities, with this action you have become enemy to Islamic Resistance In Iraq, where it knows all you actions to service the occupier, through the actions (humiliations, spy, detain). against the Islamic fighters

Accordingly, The Islamic Resistance In Iraq decides to carry out the fair punishment against you and all traitors.

17    The appellant claimed that the uncle reported the threat to the police but they did not take any action. His uncle recommended that the appellant leave Nasiriya and go to live with his aunt in Baghdad for a while. The appellant moved to Baghdad in around April or May 2012 and stayed with his aunt until his departure from Iraq in March 2013.

18    The appellant claims he left Iraq because he was afraid that the Islamic Resistance in Iraq or the Fight for Just Punishment group would find out where he was living and kill him. The appellant claimed that if he returns to Iraq, the Islamic Resistance in Iraq or Fight for Just Punishment group, or another group, will find him and kill him wherever he is in Iraq because he worked for a company associated with the US and because he escaped from Iraq and travelled to Australia.

19    The appellant claimed that he could not rely on the protection of the Iraqi state and could not safely relocate anywhere else in Iraq.

Authority's decision

New material and s 473DD

20    The Authority was provided with the relevant material under s 473CB of the Act.

21    Prior to its determination, the Authority received a submission from the appellant's representative, some of which addressed matters that had already been raised in the delegate's decision, but some of which the Authority treated as new information (there was no challenge by the appellant to the selection of the new information).

22    The following elements of the submission were said to be new information:

(a)    the appellant received two written threats, the first of which was placed under the front gate of the appellant's family home in January or February 2012;

(b)    the second written threat, which was passed to the appellant's uncle, contained a threat to kill the appellant, including for passing information to the US military that lead to the capture of many of the group's leaders and affiliates;

(c)    both the appellant and his uncle reported the threats to the police;

(d)    the source of the threats to the appellant should have been identified as the 'Islamic Resistance';

(e)    the Islamic Resistance consisted of all Shia militias 'pre-army groups that were determined to fight the American troops, as they viewed them as occupying forces';

(f)    the Islamic Resistance group threatened to give the appellant 'fair and just punishment for his betrayal of the country and providing the US troops with information'; and

(g)    the appellant's brother is in the US as part of a special immigrant visa program on the basis of threats to his life associated with the appellant's alleged activities.

23    The Authority referred to s 473DD of the Act and stated as follows:

[10]    Section 473DD of the Act requires that the IAA must not consider any new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. In relation to information provided by the applicant, there is a further requirement that the applicant must satisfy the IAA that the new information was not, and could not have been, provided to the delegate before the delegate made his decision, or that the new information is credible personal information that was not previously known and, had it been known, may have affected the outcome of the applicant's claims.

[11]    The applicant's representative states generally that some factual issues were not considered in detail during the interview and the submission offers 'clarification'. The applicant provided evidence regarding the threats he claimed to have received in the entry interview of 25 April 2013, his TPV application of July 2016 and in the TPV interview conducted on 31 October 2016. The number, nature and circumstances of the threats were discussed in the TPV interview, as was the identity of the source. In view of the opportunities afforded to the applicant to provide evidence regarding the claimed threats, I am not satisfied that there are exceptional circumstances to justify the consideration of the new information relating to the threats to the applicant.

[12]    In terms of the new information regarding the applicant's brother, no information about the nature and dates of any claimed threats to his life, or the connection of the claimed threats to the applicant, has been included in the submission. In the absence of any such information, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.

24    The Authority then considered the protection claims. The relevant factual findings are as follows.

Employment with KBR

25    There was conflicting evidence given by the appellant as to when his employment terminated. For example, in his entry interview he claimed to have worked for the KBR from 2010 to 2013, whereas later evidence suggested his employment ceased in 2011. The appellant's written statement in support of his visa application referred to the period to 2012. Country information from the United Nations High Commissioner for Refugees indicated that the vast majority of troops had withdrawn from Iraq by 2011. Taking that into account, the Authority found that the appellant worked for KBR between January 2010 and November 2011. The Authority accepted that the appellant held a junior position in the provisioning area of KBR.

No evidence of existence of 'Fight for Just Punishment' group despite threat letter

26    The Authority was prepared to place only limited weight on the inability of the appellant to properly identify a group that had threatened him. However, having regard to country information from the Department of Foreign Affairs and Trade (DFAT), the United Kingdom Home Office, the United Nations High Commission for Refugees and ORSAM, the Authority was unable to find any evidence of the existence of any group known as Fight for Just Punishment or any similarly named group. Further, the Authority found that the appellant was inconsistent in his references to such a group. The Authority said these matters were of some concern.

27    The appellant had claimed that a threat letter he received was signed by the Fight for Just Punishment group. However, the document before the Authority did not establish that. It was a copy of what purported to be a translation, completed in Iraq, of a threat letter, and it was attached to the appellant's visa application. A copy of the claimed threat letter itself was not provided. The translation contains no reference to the Fight for Just Punishment group but indicates that the threat letter was signed by the 'Islamic Resistance in Iraq Brigades'. As a photocopy of a translation undertaken in Iraq of the claimed threat letter, the Authority placed no weight on the document.

28    The appellant had claimed in his visa application that Fight for Just Punishment was also known as the 'Islamic Resistance in Iraq'. In his interview, he claimed that the Fight for Just Punishment group was a sub-group of the Islamic Resistance in Iraq. The Authority noted that Islamic Resistance in Iraq is a term used to refer to four armed Shia groups that make up the Popular Mobilization Forces raised in 2014 to support the government's fight against Daesh (or ISIS) and that there was no evidence before the Authority that Islamic Resistance in Iraq was formed prior to 2014. The Authority had regard to various country information in coming to this conclusion, including country information about the Islamic Resistance in Iraq.

The alleged threats

29    The Authority detailed a number of inconsistencies in the appellant's evidence about the nature and frequency of the threats allegedly received. These included inconsistencies as to the number of threats, their content and the form of his response. For example, the Authority noted that in his application, the appellant claimed he had received threatening letters after his employment ceased, and that the letters continued for some three or four months. In his visa application interview, the appellant claimed he had received a single written threat which was passed to his uncle. The Authority also found it difficult to accept that a letter for the appellant 'happened to be there' at the time the uncle visited the members of the group. As already noted, the authority placed no weight on the alleged copy translation of the threat letter before it. In circumstances where the appellant provided no relevant explanation, the Authority found it implausible that the Islamic Resistance or Fight for Just Punishment group would believe that the appellant knew anything about the operations of such groups, that he would share such information with the US troops or that the groups would threaten to kill him on that basis. The appellant claimed to have no connection with any armed, political or religious group in Iraq. Further, there was no suggestion that the appellant was threatened during his employment or took steps to conceal his employment. Although he said that he also worked in a clothing shop after finishing work at the base, the appellant had described arriving at work in some detail without reference to any need for secrecy. He had discussed his employment with friends, at least after it ceased. KBR apparently had around ten different sections and the appellant worked in only one, suggesting that there may have been many other Iraqis employed on the base.

30    Ultimately, the Authority concluded its assessment of the facts as follows:

[42]    The variation in the applicant's evidence regarding the threats, in particular his evidence regarding the number and form of threats and the actions taken in response to the threat, and the implausibility of aspects of his evidence discussed, leads me to doubt that the applicant was threatened as claimed. While I accept that employees of companies associated with the US forces such as KBR may have been of adverse interest to Shia militia and other armed groups, I do not accept that the applicant was threatened as claimed, or that he was perceived by any group or person to have shared information of any type with the US military. I do not accept that the applicant was of any adverse interest to the 'Islamic Resistance' / 'Fight for Just Punishment' group, any Shia militia group, or any other armed group, for any reason associated with his employment with KBR. It follows that I do not accept that the applicant left Iraq because of any threats associated with his past employment received from the 'Islamic Resistance' / 'Fight for Just Punishment' group, any Shia militia group, or any other armed group.

[43]    DFAT reported in 2015 that in government-controlled areas, the opposition to the US and other Western nations had diminished somewhat in recent years such that overall, DFAT assessed the risk of violence to those who had worked with the international community to be moderate. DFAT noted that those most at risk were those most closely involved with the US military. I do not accept that as a junior contract employee who worked for KBR, a company closely associated with the US military, on a US base for a period of less than two years over five years ago, the applicant is of any current adverse interest to the 'Islamic Resistance' / 'Fight for Just Punishment' group, any Shia militia group or any other armed group.

[44]    The applicant has claimed that the 'Islamic Resistance' / 'Fight for Just Punishment' group or a similar group would also wish to harm him because he escaped Iraq and travelled to Australia. In a discussion of the treatment of people returning to Iraq from Australia, the Department of Foreign Affairs and Trade (DFAT) reports that the practice of Iraqis seeking asylum then returning home once conditions permit is well accepted among Iraqis. DFAT has seen no evidence to suggest voluntary returnees from the west are not assimilated back into their communities. Other than the applicant's claim, there is no evidence before me to suggest that Shia militia, or any other armed groups target people returning to Iraq from other countries. I do not accept that the applicant would be of any adverse interest to the 'Islamic Resistance' / 'Fight for Just Punishment' group, any Shia militia group, or any other armed group on the basis that he left Iraq and would be returning after living in Australia for approximately four years.

(footnotes omitted)

Refugee assessment

31    The Authority did not accept that, in light of its findings, the appellant was of adverse interest to the Fight for Just Punishment group or any Shia militia group on the basis of his past employment by the KBR, on the basis that he left Iraq, or on the basis that he had lived in Australia.

32    The Authority found that the appellant would return to Nasiriya in the Dhi Qar province where it was unlikely that he would be affected by sectarian violence. His family continued to live there. The DFAT 2015 assessment was that the Shias in southern Iraq face a low risk of generalised violence. Having regard to the totality of country information before it, the Authority accepted that violent incidents may occur in the Dhi Qar province but found the chance that the appellant may be harmed as a result of sectarian or other violence in Dhi Qar was less than the real chance of persecution criteria required to meet s 5J(1)(b) of the Act.

33    The Authority considered and found that there was no real chance the appellant would be harmed because he had unsuccessfully sought asylum in Australia. The Authority took into account that DFAT had advised that the practice of Iraqis seeking asylum and later returning to Iraq is well-accepted amongst Iraqis and DFAT had seen no evidence that returnees are not assimilated into the community. The Authority also was not satisfied that any combination of the appellant's circumstances (including his employment with KBR) would combine to expose the appellant to a real chance of harm in Dhi Qar province.

Refugee and complementary protection conclusion

34    Accordingly, the Authority was not satisfied that the appellant met the refugee definition in s 5H(1) or the criterion in s 36(2)(a) of the Act, or the complementary protection criterion in s 36(2)(aa) of the Act.

Before the Federal Circuit Court

35    The appellant sought judicial review of the Authority's decision. Relevantly, the primary judge considered three grounds of review.

36    The first ground was that the decision-maker had relied on irrelevant material, identified as reports and documents relied upon by the Authority in its consideration of the appellant's claim to have been threatened by 'Fight for Just Punishment'. The submission was to the effect that the material was irrelevant because documents or reports in which the material was contained post-dated the relevant events.

37    The primary judge held that the argument was misconceived as the date of a document does not alone establish the lack of relevance in any sense of that word. The primary judge said, '[a] report dated 2015 may contain accurate and up to date information concerning circumstances in 2012 just as, for example, a dictionary published in 2018 may contain information relating to the meaning of a word in the 16th century' (at [25]). The primary judge rejected the ground.

38    Ground 2 asserted failure by the Authority to consider claims, and comprised three parts.

39    The first part of ground 2 was a complaint about the Authority's refusal to consider the new information placed before it by the Appellant. It was asserted that the Authority failed to consider whether there were circumstances pertinent to s 473DD(b)(ii).

40    The primary judge considered the authorities with respect to the requirements of s 473DD(a) and (b) of the Act. The primary judge then considered [10], [11] and [12] of the Authority's reasons (included above). The Minister made certain submissions about that contention, which the primary judge recorded in the reasons:

[43]    The Minister submitted that there was no basis to infer that the Authority adopted an impermissibly narrow approach to the question arising under s.473DD because, in refusing to give consideration to the information about the applicant's brother, the Authority had regard, amongst other things, to the fact that there was no information about the nature and dates of any claimed threats to the brother's life, or what connection those threats might have to the applicant. That is, the Minister submitted, that the Authority considered the nature and probative weight of the information in determining the question of whether there were exceptional circumstances.

[44]    The Minister submitted that it is unlikely that the Authority took an unduly narrow approach in its consideration of the matters at [11] given its broader approach in [12]. The Minister also highlighted the fact that the Authority was under no obligation to set out its reasons for this aspect of its decision: CVS16 v Minister for Immigration &Border Protection [2017] FCCA 249 at [26] and BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [45].

41    For reasons that will become apparent, it is useful to note that the primary judge then said as follows:

[45]    I agree with the Minister's submissions. First, while inferences as to the Authority's reasoning process can clearly be drawn from what is written by it, it must be borne in mind that there is no obligation on the Authority to give its reasons. That means that the inferences to be drawn from matters which are missing from the Authority's statement of reasons in this respect cannot be as confidently drawn as they maybe in circumstances where there is such an obligation: cf. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30.

[46]    Secondly, the reasons of any decision maker, and indeed any written document, must be read as a whole. When that approach is taken here, it is clear from what is said at [10] that the Authority was aware that there were different aspects of s.473DD that had to be considered.

[47]    Thirdly, when [11] is read in light of [12] it must be inferred that the Authority was not only aware of the different aspects of s.473DD of the Act but also aware of their potential interplay as explained by White J in BVZ16.

[48]    Fourthly, it would be taking an unduly narrow approach to the reasons of the Authority to excise the matters in [10] and [12] so that [11] were to be read in isolation in order to form a view that the Authority took an unduly narrow approach to the question posed by s.473DD of the Act.

[49]    For all of those reasons, I am not satisfied that the Authority did not properly apply itself to the task required by s.473DD and therefore am not satisfied that it failed to take into account material that was properly before it.

42    The second aspect of ground 2 was a complaint that the Authority gave no weight to the document purporting to be a threat letter signed by the Islamic Resistance in Iraq Brigades. The primary judge noted three rational bases for the Authority's conclusion: the lack of any reference to the Fight for Just Punishment group; the inability to test the authenticity of a copy of a translation of an alleged letter; and the unlikely coincidence that the letter was available at the time the uncle visited members of the group. The primary judge held that the appellant was inviting the Court to engage in merits review, as the weight to be attributed to evidence was in any event a matter for the Authority.

43    The third aspect of ground 2 was a contention that the Authority placed insufficient weight on a report by the UNHCR concerning the risk faced by employees returning to Iraq. The primary judge rejected the ground on the basis that it trespassed into merits review but also overlooked the fact that the Authority based its conclusion on the fact that the appellant did not indicate he had taken any steps to conceal his employment. The primary judge found there was a rational basis for the Authority's conclusions in any event.

44    Accordingly, the primary judge dismissed ground 2 of the grounds of review and it was not necessary for a third ground to be considered, as it was dependant on the outcome of grounds 1 and 2.

Notice of appeal

45    The appellant seeks to raise three grounds of appeal before this Court. They are as follows:

(1)    the primary judge erred in law in unreasonably concluding, on the basis of speculation, that the Authority did not misdirect itself in exercising its discretion not to consider new information, in that the Authority failed to direct itself as to the relevance of the matters set out in s 473DD(b) of the Act in arriving at the satisfaction required to be reached in accordance with s 473DD(a);

(2)    the primary judge erred in law in unreasonably concluding that the Authority had not unreasonably relied upon information in documents created on dates post-dating the date of the circumstances under consideration which did not refer to a 'Fight for Just Punishment' or a similarly named group to conclude that the appellant was not threatened by a group in 2012 from which he claimed to fear harm; and

(3)    the primary judge erred in law in dismissing the application to review the decision of the Authority which erred in law by making a finding of fact for which there was no evidence, that the appellant was a junior contract employee of a company contracted to the United States military, being a fact critical to drawing the inference that he was not at risk of persecution.

46    The Minister opposes any grant of leave to rely on ground 3, on the basis it was not raised before the primary judge.

Determination

Ground 1 - new information

47    By ground 1, the appellant in effect takes issue with the primary judge's acceptance (in [45] of the primary judge's reasons) of a submission made by the Minister (referred to in [44]) that:

[It] is unlikely that the Authority took an unduly narrow approach in its consideration of the matters at [11] of the Authority's reasons.

48    Those matters relate to the Authority's decision to refuse to accept new information about the alleged threats made to the appellant on the basis that it did not consider there were exceptional circumstances as required by s 473DD.

49    Section 473DD provides as follows:

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

50    The appellant refers to Nesterczuk v Mortimore [1965] HCA 60; (1965) 115 CLR 140 and the statement by Kitto J at 149 (using the word 'tribunal' in a general sense) that:

The tribunal may of course reason from the material before it, drawing all logical inferences while refraining from speculation.

51    The allegation that the primary judge's conclusion was 'speculative' appears to be based on use of the word 'unlikely' in the Minister's submissions, a submission accepted by the primary judge. Mere acceptance of the Minister's submission, limited in any event to [11] of the Authority's reasons, does not establish that the primary judge's assessment of the Authority's process was speculative or indeed that it was based on the Minister's submission alone. On the contrary, the primary judge found, having expressly taken into account a number of matters including and in addition to the Minister's submissions, found that 'for all these reasons' he was not satisfied that the Authority did not properly apply itself to the task required by s 473DD: see the reasons recited at [40]-[41] above.

52    I do not consider the reasons when read as a whole support a contention that the primary judge merely speculated as to the task undertaken by the Authority.

53    Nor do I accept the contention in the appeal ground to the effect that the primary judge erred in failing to find that the Authority had failed to direct itself to the relevance of the matters set out in s 473DD(b) of the Act in considering whether there were exceptional circumstances that justified the new information being considered.

54    Such a contention appears to be based on the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221, and in particular the following statement:

[9]    The requirements of subparas (a) and (b) [of s 473DD] are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional.

55    His Honour's view was affirmed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [31]-[33] (Tracey, Murphy and Kerr JJ). However, it is important to consider more generally what has been said about the operation of s 473DD. The principles are summarised in a number of cases, but I respectfully adopt the recent summary of Colvin J in AOV18 v Minister for Home Affairs [2018] FCA 1871:

[4]    … Relevantly for present purposes, I note:

(1)    There are two requirements. First, the Authority must be satisfied that there are exceptional circumstances to justify considering the new information: s 473DD(a). Second, the applicant before the Authority must satisfy the Authority that the new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant's claims: s 473DD(b).

(2)    The two requirements are separately stated. The section does not require a judgment to be formed taking into account both requirements or by balancing them. They are cumulative requirements: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13].

(3)    If one requirement is not met, then the new information must not be considered. There is no need to go on and consider whether the other requirement is met: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [26] and BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [98].

(4)    In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51], it was said that matters relevant to the second requirement will usually form part of the consideration of all relevant circumstances required for the purposes of forming the state of satisfaction as to whether there are exceptional circumstances for the purposes of the first requirement. Even so, 'it is a misconception that the factors in s 473DD(b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether 'exceptional circumstances' exist as s 473DD(b) does not codify what constitutes 'exceptional circumstances': AQU17 at [14].

(5)    The statement by White J in BZV16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 at [9] that the two requirements 'are cumulative but may nevertheless overlap' (approved and applied in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]) is to be understood in that context. It is not the case that in considering whether there are exceptional circumstances it is necessary to consider all aspects of the second requirement. It depends upon the nature of the new information as to the significance of particular matters.

(6)    In forming a view whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [75]. To 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': Plaintiff M174/2016 at [30]. Plainly, whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances.

[5]    The final point is important because s 473DD conditions the exception to the prohibition in s 473DD upon the state of satisfaction of the Authority, not the view of the Court or the application of an objective standard.

[6]    The question for the primary judge was whether there was jurisdictional error in the manner in which the Authority dealt with the new information. In undertaking that task it was not for the primary judge to consider whether the reasoning process of the Authority was one which would satisfy the court. The question was whether the reasoning process displayed a misunderstanding of the nature and extent of the prohibition and the task of the Authority in forming the required state of satisfaction for the purposes of each of the two requirements that had to be met for the exception to apply such that there was no prohibition on considering the new information.

56    The appellant contends that the Authority restricted the exercise of its discretion to consideration of the fact that the appellant had opportunities to provide information as to the alleged threats in the entry interview, TPV application and TPV interview and failed to address s 473DD(b) matters. Counsel submitted that it was necessary for the Authority to consider the matters in s 473DD and it was not open to the Federal Circuit Court to infer that it did, when nothing was said about it in the reasons.

57    There are examples where the Authority, in considering the application of s 473DD, has listed similar opportunities for a protection visa applicant to give evidence in support of their claim, has found an absence of exceptional circumstances and has not expressly addressed the s 473DD(b) matters, and the Authority's decision to decline to accept new information has been the subject of a successful appeal.

58    For example, in BBS16 the Authority listed the opportunities given to the applicant to provide evidence about his protection claim generally, but also stated that the applicant had not provided any explanation as to why the new information (about a topic that had not previously been raised) could not have been provided earlier. In fact, an explanation had been provided and it was relevant to the prior failure to disclose. The Full Court found that the Authority's conclusion that it was not satisfied as to exceptional circumstances was based on its finding that the respondent had not provided any explanation as to why the information could not have been provided earlier (at [111]).

59    In CHF16 the Authority similarly listed the opportunities provided to the visa applicant to generally provide information supporting his claims. The Authority then stated that the new information related to events which occurred before the primary decision being made and that it was not satisfied that there are exceptional circumstances. The Full Court found that in considering whether there were exceptional circumstances, the Authority considered only the fact that the new information related to events which occurred prior to the primary decision being made and did not take into account why it had not been provided earlier or any other circumstances (at [44]).

60    The circumstances of this case are different. The Authority in this case did more than simply list the opportunities that had been made available to the appellant to address his protection claim. It addressed the new information insofar as it related to the alleged threats and noted that the appellant had already provided evidence about the threats in each of his entry interview, his TPV application and in his TPV interview. The Authority noted that the number, nature and circumstance of the threats were discussed in the TPV interview. That is, the Authority had regard to the existing (and conflicting) evidence about the alleged threats as part of the task it undertook to ascertain which parts of the information in the submission were in fact new. The Authority also had before it the purported translation of the written threat allegedly delivered by the uncle and was able to assess the new evidence taking into account the evidence purportedly provided by that letter. The process undertaken by the Authority supports an inference that it was well placed to consider the probative value of the new information and in fact did so.

61    The Authority noted the reason provided in the appellant's submission for providing the new information - being that some factual matters were not addressed in detail and the submission offered 'clarification'.

62    It should also be noted that the Authority had considered the recording of the TPV interview in the context of a suggestion that there were some misunderstandings arising out of the interpreting during this interview. The Authority said as follows:

[25]    In a covering email accompanying his submission to the IAA, the applicant's representative appears to claim that some confusion during the interview resulted in the applicant misunderstanding some questions and providing some short responses or no response to some essential points relating to his claims. The applicant's representative does not indicate whether he is referring to the TPV interview conducted on 31 October 2016 or the entry interview conducted on 25 April 2013 but I take his comments to refer to the TPV interview. Neither the email nor the submission explains how the claimed misunderstandings arose but issues with interpretation are not referred to.

[26]    While I accept that there are differences between common or colloquial Iraqi Arabic and the standard Arabic spoken by the interpreter in the TPV interview, having listened to the recording of the interview, I do not accept that these differences resulted in any misunderstanding of the applicant's evidence.

63    Further, although the appellant appears by his submissions as to ground 1 to limit his complaint to the Authority's determination about the new information relating to the threats, it is important to note the Authority's treatment of the information about the appellant's brother (at [11] of the Authority's reasons) in considering the task undertaken by the Authority as a whole. The primary judge alluded to this in [46]-[48] of his reasons. It must be remembered that there had been no prior mention of the appellant's brother's position in the materials. It seems clear to me that the Authority's identification of the lack of any detail about the brother's circumstances or connection to the appellant revealed an understanding of the need to consider the credibility and probative value of new evidence for the purpose of s 473DD, a matter relevant to s 473DD(b)(ii) but also relevant more generally to the question of exceptional circumstances.

64    On the basis of the matters set out at [60]-[63] above, it seems to me that it can properly be inferred that the Authority understood the nature of the task to be undertaken by it and it in fact considered the credibility and probative value of the new 'clarifying' material about the threats. I reject the proposition that because the Authority did not expressly refer to the manner in which it assessed the new information for the purpose of s 473DD, I should infer that it failed to do so. The appellant refers to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ), where their Honours stated that the operation of s 430 of the Act entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Administrative Appeals Tribunal to be material. This was because s 430 compels the Tribunal to provide a written statement of reasons outlining, among other things, what facts the Tribunal considered material to its conclusions. As the High Court said in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [31] (French CJ and Kiefel J), the statement in Yusuf does not mean that a matter not mentioned in the s 430 statement was not considered.

65    A decision made under s 473DD is not subject to a requirement such as that imposed by s 430 of the Act. Section 473EA of the Act (headed 'Immigration Assessment Authority's decision and written statement') only requires that the Authority's statement of decision sets out the decision on the review and reasons for the decision, and does not require the Authority to give reasons regarding a specific decision made under s 473DD: see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29]-[30] (Bromwich J). Where there is no obligation to give reasons, an inference of the kind drawn in Yusuf cannot readily be drawn: see also Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24]-[25] (French CJ, Bell, Keane and Gordon JJ).

66    The Authority correctly stated the requirements of s 473DD at [10]. It is not to the point that it did not then expressly step through each of s 473DD(a) and s 473DD(b)(i) and (ii) in its reasons for decision. The reasons are to be read as a whole and in context, and in my view although the paragraphs dealing with s 473DD are brief, the reasons do not display a misunderstanding of the nature and extent of either the prohibition in s 473DD or the task of the Authority in forming the required state of satisfaction for the purposes of the provision. Nor do they indicate the Authority did not properly apply itself to the task.

67    I would dismiss ground 1.

Ground 2 - reliance on post-dated reports

68    By ground 2, the appellant takes issue with the Authority's reliance (at [31]-[32] of its reasons) on DFAT country information dated between 2015 and 2016, which did not provide any evidence that either the 'Fight for Just Punishment' or 'Islamic Resistance in Iraq' groups existed in 2012. Relevantly, the Authority stated:

[31]    I have reviewed the information before me, which includes several documents listing Shia militia groups in Iraq. There is no reference to the 'Fight for Just Punishment' group or any group with a similar name. The applicant claims that the 'Fight for Just Punishment' group was also known as the 'Islamic Resistance in Iraq'. According to ORSAM - Center for Middle Eastern Strategic Studies, the 'Islamic Resistance in Iraq' is a term used to refer to the four main armed Shia groups who make up the bulk of the 'popular mobilisation forces' (PMF), or 'Al Hashdi al Shaab', a group of volunteer forces established in response to a fatwa for Jihad issued by Ayatollah Ali Sistani, Iraq's highest Shia religious authority in 2014. The PMF was primarily established to support the Iraqi government's fight against Daesh (or ISIS), who made significant territorial gains in Iraq following a successful campaign in June 2014. The four Shia militia groups making up the 'Islamic Resistance in Iraq' are reported to be the Badr Organization, Kata'ib Hezbollah, Asa'ib Ahl al-Haq and Saraya al-Salam.

[32]    As the term the 'Islamic Resistance in Iraq' is reported to have been adopted to create an identity for these four groups within the PMF, which was itself established in 2014, I hold some doubts that this group threatened the applicant in 2012 as claimed. I accept that there are numerous Shia militia groups, that such groups may emerge, dissolve and be subsumed by other groups over time, and that there may be variations in names resulting from translations of Arabic names into English. These factors may account for the difficulty in identifying the group that threatened the applicant and I therefore place limited weight on the inability to identify the relevant group. Nevertheless, the applicant's inconsistency in the references to the group from which he claims to fear harm, and the lack of any evidence that a group of either claimed name existed in 2012 is of some concern to me.

69    The appellant submits that the Authority erred in concluding that the 'Fight for Just Punishment' group did not exist in 2012 on the basis that post-dated information made no mention of it. The appellant submits that this error constitutes unreasonableness, within the meaning discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ), and is a decision which lacks an evident and intelligible justification.

70    The argument as presented by the appellant alleges that the Authority reached a positive conclusion as to the non-existence of the 'Fight for Just Punishment' group by having regard to documents that made no reference to them. The appellant submits that there was in fact evidence of the group's existence, being the appellant's oral evidence given before the Authority and the translation of the letter provided to the appellant's uncle.

71    However, the Authority's reasons demonstrate that it did not make the positive finding that the appellant claims it did. Reference to the first and last sentences in [32] of the Authority's reasons shows that the authority merely expressed 'doubts that this group threatened the applicant in 2012 as claimed' and 'some concern' about the lack of evidence on this point. Properly read, the Authority did not make a positive finding that the group did not exist.

72    As to the evidence provided by the appellant, the Authority's decision not to rely on it must be viewed in the context where the appellant's evidence on this point was considered unreliable due to its inconsistency, and where the Authority had placed no weight on the letter as it was merely a photocopy of a translation undertaken in Iraq of the claimed threat letter. Accordingly, the Authority gave logical reasons for discounting this material as evidence of the group's existence.

73    It should also be noted that the Authority only chose to place limited weight on the appellant's inability to identify the relevant group. The Authority found more concerning the substantial inconsistencies in the appellant's evidence as to the group's name. The Authority noted that the appellant referred to the group that threatened him exclusively as the 'Fight for Just Punishment' group eight times in his statement of claims, the appellant referred to the 'Islamic Resistance in Iraq' in his TPV application and interview, and the purported threat letter was signed by the 'Islamic Resistance in Iraq Brigades' with no reference to the 'Fight for Just Punishment' group.

74    I do not consider the Authority relied upon the DFAT material in a manner that is unreasonable. It was entitled to have regard to country information and give it such weight as it considered appropriate. It disclosed its reasoning process with respect to that information and I do not consider that process reveals illogicality or was otherwise unreasonable.

75    In any event, even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [30]-[31] (Kiefel CJ, Gageler and Keane JJ), [41] (Nettle J), [46] and [72] (Edelman J).

76    The Authority found at [42] that no group had threatened the appellant, whether that group was the 'Islamic Resistance in Iraq' / 'Fight for Just Punishment' group, any Shia militia group, or any other armed group. This finding was based on the inconsistencies in the appellant's evidence regarding the number and form of threats and the actions he took in response to them, country information contradicting his claims, the implausibility of some of his claims, and his role as a 'junior contract employee' in KBR (discussed in ground 3 below). It was not based on an inability to identify the relevant group. Accordingly, even if the Authority's use of post-dated country information was illogical, it would not appear material to its ultimate conclusion that the appellant had not been threatened by any group.

77    I would dismiss ground 2.

Proposed ground 3 - use of the descriptor 'junior'

78    The proposed appeal point arises out of the finding by the Authority (at [28]-[29] of its reasons) that it was willing to accept that the appellant's contract with KBR ended in November 2011 (and not later) and that he held a junior position in the provisioning area of KBR, a company contracted to the US military.

79    The starting point for proposed ground 3 is the appellant's leave application. The principles applicable to such applications were collected in SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 (Besanko, Gleeson and Burley JJ) as follows:

[28]    The appellant acknowledges that proposed grounds (1) and (2) are new grounds raised for the first time on appeal. Thus, the proposed amended notice of appeal does not in substance engage with the decision of the FCCA but rather focuses on that of the delegate. The appellant requires the leave of this Court to rely on them. The relevant principles for deciding whether to grant leave to raise a ground of challenge for the first time on appeal are set out in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48], as follows:

[46]    … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38].

[47]    In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

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

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

The statement of principle in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; (2016) 243 FCR 220 at [89]-[90] is to similar effect.

[29]    In MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1, the Full Court addressed an application for leave to raise on appeal matters not put to the Federal Magistrates Court of Australia, where the appellant had been unrepresented and put on no submissions at all. The Full Court said (at [66] to [68]):

[66]    In our opinion, if there was some merit in grounds 2 and 3, this would be a case where it would be expedient in the interests of justice to allow the grounds to be put for the first time.

[67]    However, we do not mean to say that appellants in administrative law matters of the kind with which this Court is concerned are entitled to think that they can put forward any new argument that occurs to their legal advisers on the appeal, whether or not it has been put before the Court at first instance.

[68]    All arguments, which an applicant wishes to put before the Court, must be put before the Court at first instance to be dealt with by that Court. The parties in a proceeding are entitled to expect that the opposing party, if an applicant, will have put all arguments upon which that applicant claims to be entitled to any relief or, if a respondent, will have put all defences upon which that respondent relies for dismissing the application. The Full Court is entitled to have the benefit of the reasons for judgment of the Court at first instance in respect of all arguments, in conducting its rehearing of the appeal. Although on this application we are inclined to decide the application by reference to the merits of the proposed new grounds, it cannot be thought that this Court should proceed on that basis in all cases. If the Court were compelled to consider an application of this kind by reference to whether or not the application would succeed, then that would have the de facto result that an appellant could raise any ground the appellant liked without reference to the arguments put before the Court at first instance.

80    The appellant was represented before the Federal Circuit Court. There was no explanation proffered as to why the ground was not raised previously, save for counsel's submission that the failure to do so was not deliberate. Although the appellant's employment by KBR was squarely raised and a topic before the primary judge, no issue was taken with the Authority's use of the term 'junior'. Counsel for the appellant submitted that it is a critical word, and is a description unsupported by and contrary to evidence. Counsel submitted that use of the word indicates that it was a critical fact in the Authority's decision that the appellant was not at risk of harm as a result of his employment.

81    A difficulty with the proposed ground is that it comprises an invitation to embark on merits review. Further, it is an allegation of an error of fact, and as such would not ordinarily disclose jurisdictional error.

82    It is important in any event to put the statement in context.

83    There was some evidence about the appellant's employment. It was not all accepted by the Authority. For example, the Authority did not accept evidence that the appellant's employment continued beyond November 2011 to 2012 or 2013, as claimed.

84    The Authority referred to the nature of the appellant's employment. His role was to process orders for food and water. There was also evidence before the Authority (although not referred to) comprising certificates that referred to the appellant's role as a warehouseman. One of the certificates referred to him as a 'warehouseman, senior'. However, the appellant's evidence in his own statement in support of his visa application was that he was not able to find a job after completing some accounting studies and so between 2010 and 2012 he worked on a fixed term contract for a US defence contractor and a subsidiary of the Halliburton Group in Nasiriya, where he 'processed orders for food and water for United States troops'. The certificates included in the materials do not otherwise expand upon or explain the role he actually undertook. Elsewhere in its reasons the Authority recited the appellant's evidence that he worked with 11 other Iraqi employees in his section of KBR on the US base, and that KBR had around 10 sections, a matter that suggested many others were also employed on the base. The nature of the appellant's role as he described it should not be ignored. I note that elsewhere in its reasons the appellant was described by the Authority as being in a 'low-level role'.

85    As is clear from its reasons at [43], the Authority noted that opposition to the US and other Western nations had diminished in recent years such that the risk of violence to those who had worked with the international community was moderate. It also acknowledged those most at risk were those 'closely involved with the US military'. In that context, the appellant's personal circumstances were relevant, and were considered by the Authority. It considered the nature of his job. As its findings make clear, it did not accept that the appellant was threatened as claimed or that he was perceived to have shared information with the US military. The Authority did not accept that the appellant was targeted by any group on the basis of his past employment with the KBR. These were important factors in coming to the view that the appellant was not of any current adverse interest to Shia or other armed groups as a result of his employment with the KBR.

86    I also note that the Authority, in the context of considering whether the appellant had a well-founded fear of persecution, did not accept that the appellant would be of any adverse interest to any Shia militia group on the basis he left Iraq and would be returning to Iraq having lived in Australia for some years.

87    In my view, there is no error disclosed by the Authority's description of the appellant's role as 'junior' (or for that matter, low-level). I do not accept the appellant's submission that there was no evidence to support that description. The role described by the appellant could appropriately be so described, taking into account his own evidence. The proposed ground places much weight on the word 'junior' without regard to the evidence as a whole. Furthermore, at most, the low-level or 'junior' nature of the appellant's job was but one factor taken into account in the Authority's reasoning. In light of his evidence as to his role, those descriptions are not without a rational basis. Nor are they illogical. Counsel for the appellant appeared to accept that the reference to 'senior' in the context of the warehouse certificate did not lead to a conclusion that the appellant was in a position at KBR that should properly be described as 'senior'.

88    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality or irrationality must be shown, 'measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions'.

89    Further, where the impugned finding is but one of a number of findings that may have led to the Authority's ultimate conclusion, jurisdictional error will generally not be made out.

90    As Wigney J stated in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516:

[54]    The Minister's submission in that regard is rejected. The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings "on the way" to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

[55]    Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal's decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal's ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

[56]    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal's findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

91    And as noted above, the High Court in Hossain v Minister for Immigration and Border Protection again confirmed that materiality is a requirement for jurisdictional error.

92    The mere description of the appellant's role as 'junior' does not, in my view, establish jurisdictional error. It does not suffer from the sort of extreme illogicality described by Robertson J. The Authority was aware of the role undertaken by the appellant at KBR. Its use of the term 'junior' should not be read in isolation. The authority had regard to the actual tasks the appellant said that he undertook.

93    The descriptor is not critical to the ultimate conclusion, in circumstances where the nature of the role has been identified. At [42] of its reasons, the Authority acknowledged that employees of companies associated with the US forces such as KBR may have been of adverse interest to Shia militia, but it was not satisfied that was so with respect to the appellant. It took into account not only his role but the length of time of his employment and the time that had subsequently elapsed since his employment. The ultimate conclusion that the appellant was not of any current adverse interest to Shia or other armed groups was also based on the fact that the Authority did not accept that the appellant was threatened by any such group as he had claimed and did not accept that he was perceived to have shared information with the US military. Those matters clearly informed the Authority's view as to whether the appellant was of any current adverse interest to such groups.

94    Accordingly, and applying the principles discussed above, I would not grant leave to add ground 3 in circumstances where it was not raised before the Federal Circuit Court. To my mind, it has no real prospect of success.

Determination

95    It follows that the appeal is to be dismissed. Costs should follow the event in the usual way.

Associate:

Dated:    26 February 2019