FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v AYJ17 [2019] FCA 591

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The first respondent (the respondent), a citizen of Iraq of Sunni Muslim faith, arrived in Australia by boat in September 2012. He attended an initial interview with an officer of the then Department of Immigration and Citizenship (the Department) on 20 September 2012 (the arrival interview). Subsequently, on 13 November 2012, he attended a more detailed interview with an officer of the Department (the entry interview).

2    On or about 10 December 2015, the respondent applied for a Temporary Protection (subclass 785) visa (protection visa). In broad terms, the respondent claimed that he was a Sunni who was employed as a police officer in a Shia-dominated area of Iraq. Among other things, he claimed that his car had been fitted with a bomb that exploded in February 2011 and that his brother was driving the car at the time and was killed. The respondent attended an interview with a delegate of the appellant (the Minister) on 23 September 2016 (the protection visa interview). In a decision dated 12 October 2016, the delegate found the respondent to be “generally credible in relation to his claims for protection”. The delegate concluded his consideration of the respondent’s claims by stating: “I accept the claims made by the [respondent] in their entirety”. However, given the time that had elapsed and in the absence of evidence that former police officers were being targeted by militia groups or others, the delegate did not find that the respondent faced a real chance of serious harm in the reasonably foreseeable future due to being a former police officer. The delegate concluded that the respondent did not satisfy the criteria for a grant of a protection visa.

3    The decision of the delegate was referred to the Immigration Assessment Authority (the IAA) for review pursuant to Pt 7AA of the Migration Act 1958 (Cth). The review proceeded on the basis of the material referred by the Secretary under s 473CB of the Migration Act. In relation to the respondent’s claim regarding his brother’s death, the IAA noted that the respondent did not mention his brother’s death in the arrival interview. In contrast, the claim regarding the brother’s death was made in the entry interview, the protection visa application and the protection visa interview. Principally on this basis, the IAA did not accept the respondent’s claim regarding his brother’s death. The IAA affirmed the decision of the delegate not to grant the respondent a protection visa.

4    The respondent applied to the Federal Circuit Court of Australia for judicial review of the IAA’s decision. The primary judge upheld two of the three grounds of review that were pressed at the hearing. The primary judge held that the IAA’s rejection of the respondent’s claim concerning the death of his brother because he did not mention the claim at the arrival interview was perverse in a manner constituting jurisdictional error. The primary judge also held that it was legally unreasonable for the IAA to reject the respondent’s claim regarding his brother’s death on the basis that it was not mentioned in the arrival interview without exercising the power under s 473DC of the Migration Act to give the respondent an opportunity to comment.

5    The Minister appeals from the judgment of the primary judge. The Minister challenges each of the conclusions of the primary judge referred to above. The Minister also contends that even if, which is not conceded, the IAA erred in its fact finding, any errors were not material and, accordingly, there was no jurisdictional error. The materiality contention was not advanced before the primary judge.

6    By a notice of contention, the respondent contends that the judgment of the primary judge should be upheld on the basis of the ground of review that failed before the primary judge (to the effect that the IAA overlooked the relevance and significance of the English translation of a death certificate relating to the respondent’s brother’s death).

7    For the reasons set out below, the appeal is to be dismissed. It is therefore unnecessary to determine the issue raised by the notice of contention.

Background

8    In September 2012, the respondent arrived in Australia by boat. He was an unauthorised maritime arrival.

9    On 20 September 2012, the respondent attended the arrival interview. The materials before the Court include a form headed “Arrival Interview”. The form is a printed form of eight pages, with a series of typed questions, with spaces for responses to be written by hand. The first page of the form indicates that the interview lasted 50 minutes. It is apparent from the last page that the respondent was assisted by an interpreter. It may be inferred that the form was completed by an officer of the Department (rather than by the respondent personally). The form comprises two Parts: Part A is concerned with “Biodata”; Part B is concerned with “Travel”. On page 1 of the form, under the heading “Part A – Biodata”, there is a paragraph as follows:

Introduction to client

This is the first opportunity for you to provide information regarding your circumstances. We encourage you to be as honest and accurate with the information as you can be. Information provided by you will need to be re-confirmed at a later time. Please also consider what supporting documents or evidence you have (or have access to) that may support the information you provide.

10    Question 21 on the form is: “Why did you leave your country of nationality (country of residence)?” The form provides a box with three lines for a response to this question to be inserted. The primary judge recorded at [89] of her reasons for judgment (the Reasons) that, at the hearing before her, counsel for the Minister confirmed that the box is not capable of expansion. The respondent’s response to the question, which occupied two of the three lines was as follows:

I was an officer with Police in Iraq + I was threatened by religious groups.

11    On 13 November 2012, the respondent attended the entry interview. The materials before the Court include a form headed “Irregular Maritime Arrival – Entry Interview”. The form has a series of questions with boxes or fields for answers to be typed in. The completed form is 18 pages in length. It appears from the first page that the interview went for about 1.5 hours. On the first page of the form the following information appears:

Important Information

I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

The Department is careful to protect the privacy of all information given by you during this interview. This information will not be made available to authorities in the country of your habitual residence. The exception to this is if a determination is made that you have no lawful basis to remain in Australia. In this situation, personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia.

The information you provide at this and any future interview may be used or disclosed as the basis for checks with authorities in countries through which you have passed or in which you have resided since you left your country of origin.

The information may also be used to carry out checks with international humanitarian agencies concerning any contact you may have had with them before coming to Australia.

The information may also be disclosed to Australian Government agencies authorised to receive information, including that in relation to foreign affairs, border control, health, security and law enforcement matters.

The recording for this or any future interview may be disclosed to language experts contracted by the Australian Government to assist in verifying your place of origin.

12    The form is divided into three parts. In Part C, question 1 was: “Why did you leave your country of nationality (country of residence)?” The form records the respondent’s response as follows:

I was an officer with the police in Iraq and I was threatened by religious groups.

I left Iraq because where I was as a police office was majority Shia. I received a lot of calls and threats for over 6 months and I don’;t know who there were from. We were cautious but one day my brother was killed in an explosion my whole family moved to another area. He was targeted and killed on 25/02/2012 and a few weeks later we left. We did the religious area on the 7th day and I left on the 19th March 2011. I believe my brother was targeted because of me. He took my car to buy breakfast and the car exploded, it had booby traps and exploded. The calls were religious sentences (threats) I think I was targeted because I am Sunni in a Shia dominated area.

I left Syria because of what is happening at the moment. The war.

(Errors in original.)

13    On or about 10 December 2015, the respondent lodged his application for a protection visa. The respondent’s application for a protection visa is summarised at [26] of the Reasons.

14    On 23 September 2016, the respondent attended the protection visa interview.

15    On 12 October 2016, the delegate refused the respondent’s application for a protection visa. The decision of the delegate is summarised at [28]-[35] of the Reasons. I note, in particular, the following matters:

(a)    The delegate found the respondent to be “generally credible in relation to his claims for protection”.

(b)    The delegate stated that the respondent “has been consistent throughout his interactions, including his entry interview, with the department about his identity and narrative history”.

(c)    The delegate accepted the following facts:

•    The [respondent] is a Sunni from Thi Qar governorate.

•    The [respondent] was employed as a police officer in Thi Qar between 2004 and 2011.

•    The [respondent] was subjected to threatening phone calls in relation to being a Sunni police officer. These calls commenced in December 2010 or January 2011.

•    The [respondent’s] car was fitted with a bomb that exploded in February 2011.

•    The [respondent’s] brother, Jamal, was driving the car at the time and was killed.

•    The [respondent] left his home and made arrangements to leave Iraq, initially settling in Syria before the civil war in that country compelled him to leave. He then travelled to Australia.

(d)    In relation to the claim regarding the brother’s death, the delegate stated:

With regards to the incident itself, the [respondent] has provided consistent details in his entry interview, written application and PV interview. These details are that the incident followed threatening phone calls, that his brother was driving the [respondent’s] car and that his brother was killed instantly by the bomb which destroyed the car. Immediately after the explosion, the brother left his home and travelled to a different part of Thi Qar where his maternal family owned approximately twenty houses. As the [respondent] has been consistent with his recollection of this event and provided answers without hesitation at his PV interview, I find that the [respondent] has presented a credible account of this event and that the [respondent’s] car was destroyed in an explosion.

The [respondent] claims that, he was the real target of the bombing due to his employment as a police officer and in particularly being a Sunni working in that field. The bombing took place in close proximity to the commencement of a series of phone threats directed to the [respondent] (December 2010 to February 2011). I note that the [respondent’s] brother was a minor (aged approximately 17) at the time of his death and as such does not appear to have had a profile that would make him singled out as a target for a militia group and that he was driving the [respondent’s] car. Conversely there is considerable country information noting the targeting of police officers in the post-Saddam era. Based on this, I accept that the brother was the victim of a bombing that sought to target the [respondent] due to the latter’s employment as a police officer.

(Footnotes omitted; emphasis added.)

(e)    In relation to the death certificate provided by the respondent, the delegate noted some concerns, but concluded that “the document is most likely genuine and that any issues relating to procedure are due to administrative lapses, rather than the fault of the [respondent] or the [respondent’s] family”.

(f)    The delegate concluded his section on findings of fact by stating “I accept the claims made by the [respondent] in their entirety”.

(g)    The delegate then considered whether the refugee criterion was established. The delegate found that the car bombing was a result of the respondent’s work as a police officer and that it was probable that the respondent’s Sunni religion was a contributing factor. The delegate accepted that, at the time of the incident, the job of police officer was a dangerous one, particularly for a Sunni operating in a majority Shia area. However, the delegate stated, the respondent had not been a police officer for over five years and no reports could be located indicating that former police officers were targeted for violence by militia groups or others. After setting out some further reasons, the delegate concluded that he did not find that the respondent faced a real chance of serious harm in the reasonably foreseeable future due to being a former police officer. The delegate considered a number of other matters and concluded that he was not satisfied that the respondent was a refugee as defined in s 5H(1) of the Migration Act. Accordingly, he was not satisfied that the respondent was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a).

(h)    For the same reasons, the delegate found that the complementary protection criterion was not made out.

16    The delegate’s decision was referred to the IAA for review pursuant to s 473CA of the Migration Act. The key relevant provisions of Pt 7AA are set out in the Reasons at [16]-[25].

17    The IAA conducted its review on the basis of the material that had been provided by the Secretary under s 473CB of the Migration Act.

18    On 31 January 2017, the IAA decided to affirm the decision not to grant the respondent a protection visa. The IAA’s reasons are summarised at [37]-[60] of the Reasons. I note the following matters in particular:

(a)    The IAA accepted that the respondent had been a police officer.

(b)    In relation to the respondent’s claim regarding his brother’s death, the IAA stated at [17]-[18]:

17.    In the arrival interview conducted on 20 September 2012 the [respondent] advised that he left Iraq because he was a police officer in Iraq and was threatened by religious groups. He did not mention his brother’s death. In the entry interview conducted on 13 November 2012, the [respondent] advised that he left Iraq because he was a Sunni police officer in a Shia-majority area and received death threats, and his brother was killed by a bomb that was attached to the car usually driven by the [respondent] and was intended to kill the [respondent]. The [respondent] also made the claim regarding brother’s death in his TPV application and in his TPV interview. He characterised this event as the catalyst for his departure from Iraq, explaining that he made preparations to leave Iraq immediately after his brother’s death.

18.    The delegate did not refer to the evidence provided by the [respondent] in the arrival interview and concluded that the [respondent’s] evidence regarding his brother’s death had been consistent. I find the [respondent’s] omission of any reference to his brother’s death in the arrival interview difficult to reconcile with the later claim made in the entry interview, TPV application and TPV interview that his brother’s death was the event that prompted his departure from Iraq, particularly given that the [respondent] claims that the explosive device was intended to kill him. I have a number of other concerns in relation to the [respondent’s] claims regarding his brother’s death.

(Emphasis added.)

(c)    The IAA noted at [19] that the respondent had provided a copy of a document that purported to be a death certificate relating to his brother’s death. The IAA discussed the certificate at [19]-[21], concluding that it would “place no weight on this document”. After referring to the respondent’s evidence regarding the death certificate, the IAA stated at [21] that it considered it “more likely that the [respondent] arranged to obtain a fraudulent death certificate to support his claims for protection”.

(d)    The IAA concluded its consideration of the claim relating to the brother’s death at [22]:

I have significant concerns regarding the [respondent’s] evidence as it relates to his brother’s death. Had his brother’s death been the trigger for his departure from Iraq, and had the explosive device been intended to kill the [respondent] as claimed, I consider that the [respondent] would have mentioned his brother’s death in the arrival interview. As discussed, I place no weight on the purported death certificate. Having regard to the evidence before me, I do not accept that the [respondent’s] brother was killed by an explosive device placed on his car by Shi militia that was intended to kill the [respondent]. On the limited evidence before me, I am not able to make a finding as to whether the [respondent’s] brother was killed or died from any other cause.

It followed, the IAA stated at [23], that the IAA did not accept that the respondent left Iraq because of his brother’s death.

(e)    The IAA considered whether the respondent satisfied the definition of a refugee, at [27]-[69], concluding that he did not.

(f)    The IAA considered the complementary protection criterion at [70]-[80], concluding that this criterion was not satisfied.

The proceeding in the Federal Circuit Court

19    The respondent applied to the Federal Circuit Court for judicial review of the IAA’s decision. The respondent’s amended application contained four grounds of review (which are set out in [62] of the Reasons). The respondent did not, however, press the fourth ground. The first three grounds were, in summary, as follows:

(a)    Ground 1: The IAA, in reversing the finding of the delegate in the respondent’s favour concerning the death of his brother in the course of targeting the respondent, without exercising its power in s 473DC to give the respondent an opportunity to comment, involved conduct by the IAA that was legally unreasonable.

(b)    Ground 2: The IAA, in the course of making its finding regarding the death certificate, overlooked the relevance and significance of the English translation of the death certificate.

(c)    Ground 3: A principal reason the IAA rejected the respondent’s claim concerning the death of his brother was because the respondent did not mention the claim at the arrival interview. In light of the role of the arrival interview, this finding was perverse in a manner that constituted jurisdictional error.

20    The primary judge rejected ground 2 at [66]-[72] of the Reasons. In summary, the primary judge did not accept the respondent’s contention that the IAA overlooked the relevance and significance of the English translation of the death certificate.

21    The primary judge dealt with grounds 1 and 3 together at [73]-[101] of the Reasons. The primary judge accepted (at [80]) that Pt 7AA contemplates that the IAA will evaluate for itself material considered by the delegate and is not required to notify the applicant that it is considering taking a different and adverse view of the material considered by the delegate, citing DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16) at [72]. However, the primary judge noted at [81], s 473DC provides that the IAA may get any documents or information that were not before the Minister and the IAA considers may be relevant; and may invite a person to give new information in writing or at an interview, whether conducted in person or in any other way. The primary judge also noted that s 473DC(2) states that the IAA does not have a duty to get, request or accept new information whether the IAA is requested to do so by a referred applicant or by any other person or in any other circumstances.

22    The primary judge noted that the IAA’s statutory power in s 473DC must be exercised reasonably, citing Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16) at [82].

23    The primary judge stated at [87]:

When one looks at the Arrival interview (a copy of which was in the bundle of relevant documents filed on 13 March 2017, and marked Exhibit 1A) which went for 50 minutes, it is directed to answering pre-framed questions about biodata and travel. Many of the questions are related to the [respondent’s] papers and how the [respondent] managed to arrive in Australia.

24    The primary judge referred to the introductory paragraph on the arrival interview form (set out above) and stated, at [90], that “[i]t is quite clear that the Arrival interview is not intended to be a fulsome account of the [respondent’s] claims”. The primary judge contrasted this with the entry interview.

25    After referring to MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56]-[57], the primary judge stated:

95.    I accept the [respondent’s] submission that for the Authority to make an adverse finding against the [respondent] because he did not identify all his protection visa claims at an Arrival interview, which is not designed or intended to elicit information about his protection visa claims, is perverse.

96.    In the case before this Court, there is no logical connection between the evidence given by the [respondent] in the Arrival interview and the findings made by the Authority to reject the [respondent’s] subsequent protection visa claims made at the Entry interview because they were not made at the Arrival interview. As stated above, the Arrival interview is primarily for a different purpose, namely, to ascertain the manner in which the [respondent] has arrived in Australia (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2) (“DAO16”).

26    The primary judge referred to authorities concerning legal unreasonableness, and concluded as follows at [100] and [101]:

100.    The Authority’s rejection of the [respondent’s] claims about his brother’s death and that being his reason for departing from Iraq was based on the failure of the [respondent] at the Arrival interview to make those claims. As stated above, it was not the role of the Arrival interview to elicit fulsome claims from the [respondent]. The information sought at the Arrival interview was directed more at eliciting information about the [respondent’s] identity and the circumstances of his arrival in Australia. In those circumstances, the Authority’s rejection of the [respondent’s] later claims about the circumstances of his brother’s death and that being his reason for leaving Iraq, and the Authority’s failure to invite the [respondent] under s.473DC of the Act to provide any comment or information in relation to the [respondent’s] failure to mention those claims at the Arrival interview were, for the reasons above, arbitrary, capricious, without common sense and lacking an evident and intelligible justification (see Li).

101.    In the circumstances, the Authority’s rejection of the [respondent’s] claim concerning the death of his brother because he did not mention the claim at the Arrival interview, in light of the role of the Arrival interview, was perverse in a manner constituting jurisdictional error. Further, it was legally unreasonable to reject those claims by the [respondent] on the basis that they were not mentioned at the Arrival interview without exercising the power under s.473DC of the Act to give the [respondent] an opportunity to comment and was legally unreasonable in all the circumstances.

27    Accordingly, the primary judge set aside the decision of the IAA and remitted the matter for determination according to law.

The appeal to this Court

28    The Minister appeals from the judgment of the Federal Circuit Court. The three grounds of appeal set out in the notice of appeal are as follows:

1.    Her Honour erred in finding that the rejection of the applicant’s claims by the Immigration Assessment Authority (IAA) ‘without exercising the power under s 473DC of the (Migration Act 1958 (Cth)) to give the applicant an opportunity to comment ... was legally unreasonable in all the circumstances’ (at [101]).

Particulars

1.1    Her Honour misconstrued the nature of the statutory power provided for in s 473DC. That power concerns a discretion on the part of the IAA to obtain new information, as defined in s 473DC(1), including by inviting the applicant to provide such information at an interview (s 473DC(3)(b)). It is not concerned with providing an applicant with an ‘opportunity to comment’ where there are credibility concerns.

1.2    To the extent that her Honour may have considered the Court bound by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (see reasons at [82]), her Honour erred. That decision is clearly distinguishable as no new issue that had not been considered by the delegate was being considered by the IAA in this case: compare the Full Court decision in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]-[72].

2.    The Federal Circuit Court (FCC) erred in finding (at [101]) that the IAA’s rejection of the applicant’s claim concerning the death of his brother ‘because he did not mention the claim at the Arrival interview’ was ‘perverse in a manner constituting jurisdictional error’. The FCC ought instead to have found that the failure to refer to the claim at the Arrival interview was one of the reasons, but not the principal reason, for the rejection of the applicant’s claim, and that finding was open to the IAA on the review material before the IAA.

Particulars

2.1    To the extent that her Honour considered that the FCC was bound to make the finding it did by the decision of the Full Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (MZZJO) (see FCC reasons at [93]-[95]), her Honour erred in not finding that the observations of the Full Court in MZZJO at [56]-[57] were obiter and in any event, rose no higher than an expression of caution.

3.    Even if, which is not conceded, the IAA erred in its fact finding, her Honour erred in finding that there had been a jurisdictional error as, in light of the conclusion of the delegate who accepted the claims of the applicant in their entirety, but found those claims did not meet the criteria for the grant of a protection visa, any factual errors could not have been material and thus could not have affected the outcome: compare Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [31]; [72].

29    The respondent has filed a notice of contention containing two grounds. The first ground is not pressed. By the second ground, the respondent contends that the judgment should be affirmed on the basis of the second ground of review before the primary judge.

Consideration

30    It will be convenient to consider each ground of appeal in turn.

Ground 1

31    The first ground of appeal concerns the primary judge’s conclusion that it was legally unreasonable for the IAA to reject the respondent’s claims on the basis that they were not mentioned at the arrival interview without exercising the power under s 473DC to give the respondent an opportunity to comment.

32    Section 473DC is set out in the Reasons at [25]. The principles concerning legal unreasonableness have been considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 (SZVFW) and by the Full Court of this Court in cases including Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1. In SZVFW, Kiefel CJ stated at [10] that in the joint judgment in Li “it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification”. This may be the case where a decision is one which no reasonable person could have arrived at. The Chief Justice emphasised, at [11], that “the test for unreasonableness is necessarily stringent”. (See also [51]-[60] per Gageler J; [78]-[87] per Nettle and Gordon JJ; and [131]-[135] per Edelman J.)

33    CRY16 involved an application of the principles of legal unreasonableness in relation to the statutory power in s 473DC. In that case, an issue of relocation arose before the IAA. That issue had not been considered by the delegate. The Full Court stated, at [67], that, as explained by Gageler J in Li, reasonableness is closely linked to procedural fairness. The Full Court stated: “Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness.” The Full Court also stated: “Further, in our opinion, that the outcome is unfair ‘in an ordinary sense’, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.” The Full Court stated at [77] that the analysis of legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred. The Full Court considered both the powers available to the Authority and the broader statutory context. The Full Court conclude at [82]:

Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

34    Applying these principles in the present case, I consider that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The circumstances included: that the delegate had not raised with the respondent during the protection visa interview any question regarding why the respondent had not referred to his claim regarding his brother’s death during the arrival interview; the delegate had not relied on the fact that the respondent had not referred to his brother’s death in the arrival interview; the arrival interview was primarily concerned with biodata and travel and the form contained only limited space for an answer to be recorded for question 21; and the arrival interview was conducted through an interpreter. Had the respondent been asked a question about the omission to refer to his brother’s death in the arrival interview, he may have provided an explanation for the omission, or he may have provided evidence that he did in fact mention it and this part of his response to the question was not recorded on the form. In circumstances where the IAA knew that it did not have any evidence from the respondent about this matter (because he had not been asked about it by the delegate) and that the respondent was likely to be able to provide relevant evidence, it was legally unreasonable to rely on the arrival interview in the way the IAA did and not to consider exercising the power in s 473DC.

35    It is true that, as the Minister submits, the present case does not concern an issue of relocation (as considered in CRY16). Part of the reason the legal unreasonableness argument was successful in that case was that the issue of relocation had not been explored before the delegate: see CRY16 at [82]. But that is but one example of circumstances that may constitute legal unreasonableness. For the reasons given above, in my view, the circumstances of the present case also support a finding of legal unreasonableness.

36    This is not to suggest that the IAA is obliged to provide an opportunity to comment simply because it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Clearly, there is no such obligation: DGZ16 at [72]. But the circumstances here are quite different. The IAA proposed to rely on a matter that had not been explored before the delegate and about which the respondent was likely to be able to provide evidence. This is not merely a matter concerning credibility. Accordingly, I do not regard the above analysis as inconsistent with DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].

37    Accordingly, the first ground of appeal is not made out.

Ground 2

38    The second ground of appeal concerns the primary judge’s conclusion that the IAA’s rejection of the respondent’s claim concerning the death of his brother because he did not mention the claim at the arrival interview was perverse in a manner constituting jurisdictional error.

39    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS), Crennan and Bell JJ said at [130]-[131]:

130    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

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

40    In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J said at [151] that in his opinion the reasons of Crennan and Bell JJ in SZMDS do not support a focus limited to the end result, albeit the overarching question is whether the decision was affected by jurisdictional error.

41    In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent’s claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent’s claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the “Important Information” set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.

42    Secondly, the respondent’s response to question 21 (which asked, “Why did you leave your country of nationality (country of residence)?”) was: “I was an officer with Police in Iraq + I was threatened by religious groups.” In my view, this was a high-level summary of the respondent’s claims and was capable of encompassing the respondent’s claim regarding his brother’s death. As set out in the delegate’s decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent’s response to question 21 was capable of encompassing the claim regarding the brother’s death. In addition, I note that the respondent’s response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq.

43    It is noteworthy that the delegate, who considered the claim regarding the respondent’s brother’s death carefully, did not refer to the arrival interview and the fact that the respondent had not referred expressly to this claim in the arrival interview. This is consistent with the analysis set out above, both that it was not the purpose of the arrival interview to obtain a detailed account of the respondent’s claims, and that the broadly expressed response to question 21 encompassed the claim regarding the brother’s death.

44    Although not necessary for my decision, I note that the delegate, who interviewed the respondent, made strong credibility findings in his favour (including in relation to the claim regarding his brother’s death), while the IAA, which did not interview the respondent, made credibility findings against him, and on a basis that was not, at any stage, put to him.

45    For these reasons, ground 2 is not made out.

Ground 3

46    By the third ground of appeal, the Minister contends that even if (which is not conceded) the IAA erred in its fact finding, any error was not material, in that it could not have affected the outcome. This ground was not raised before the primary judge. The respondent does not object to it being raised now, but sought to be heard on costs if the ground succeeds.

47    In support of this contention, the Minister relies on the reasons of the delegate (rather than the IAA). The Minister submits that, although the delegate accepted the respondent’s claim regarding his brother’s death, the delegate nevertheless concluded that the refugee criterion and the complementary protection criterion were not established.

48    I have considerable difficulty with this submission. The question of materiality is to be assessed by reference to the IAA’s decision, rather than that of the delegate. The IAA was obliged to undertake a review of the delegate’s decision. It cannot be assumed that, had the IAA made the same finding as the delegate regarding the respondent’s brother’s death, it would have also made the same findings as the delegate in relation to the refugee criterion and the complementary protection criterion.

49    Further, the reasons of the IAA indicate that its rejection of the respondent’s claim regarding his brother’s death was integral to its consideration of the refugee criterion and the complementary protection criterion. In the course of the refugee assessment, the IAA stated at [29]: “I have not accepted that the [respondent’s] brother was killed by an explosive device placed by Shia militia and intended for the [respondent].” This formed part of the IAA’s reasoning that led to its conclusion, at [36], that the IAA was not satisfied that there was a real chance of harm to the respondent at the hands of armed Shia or Sunni groups, or any other group or person, in Thi Qar province on the basis of his past employment as a police officer, then or in the foreseeable future.

50    It is true that, at [35], the IAA found that the respondent would not return to the police force upon return to Iraq, and this formed part of its reasoning in support of the conclusion at [36]. But I am not satisfied that this constituted an independent basis for the conclusion. I consider that the conclusion at [36] was based on all of the reasons at [29]-[35], including the rejection of the claim relating to the brother’s death (which was referred to in [29]).

51    The IAA relied on essentially the same reasons in concluding that the complementary protection criterion was not made out (at [78]).

52    Accordingly, I am not satisfied that, if the IAA had not made the finding that it did regarding the respondent’s claim in relation to his brother’s death, the outcome would have been the same. Ground 3 is therefore rejected.

Conclusion

53    In light of the above, it is unnecessary to consider the notice of contention.

54    For the reasons set out above, the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore make an order that the Minister pay the respondent’s costs, to be fixed by way of a lump sum.

Associate:

Dated:    1 May 2019