FEDERAL COURT OF AUSTRALIA

DZF17 v Minister for Home Affairs [2019] FCA 979

Appeal from:

DZF17 v Minister for Immigration [2018] FCCA 3619

File number:

NSD 62 of 2019

Judge:

THAWLEY J

Date of judgment:

21 June 2019

Catchwords:

MIGRATION – appeal from orders of Federal Circuit Court of Australia affirming decision of Immigration Assessment Authority to refuse protection visa – leave granted to advance new grounds of appeal – leave granted to adduce further evidence – Authority failed to give real consideration to the appellant’s claims and evidence – whether the Authority unreasonably failed to consider exercising the discretion to get new information under s 473DC(1)

Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Federal Court of Australia Act 1976 (Cth) s 27

Federal Court Rules 2011 (Cth) r 36.57

Migration Act 1958 (Cth) Pt 7AA, ss 473CC, 473DB(1), 473DC(1), 473EA(1)

Cases cited:

BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605

ETA067 v Republic of Nauru (2018) 92 ALJR 1003

Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Tickner v Chapman (1995) 57 FCR 451

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

Date of hearing:

20 June 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

73

Counsel for the Appellant:

Mr A Aleksov

Solicitor for the Appellant:

Esser Legal

Counsel for the Respondents:

Ms D Watson

Solicitor for the Respondents:

Australian Government Solicitor

ORDERS

NSD 62 of 2019

BETWEEN:

DZF17

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

21 JUNE 2019

THE COURT ORDERS THAT:

1.    The appellant is granted leave pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) to rely upon the affidavit of Hassan Alsudani filed on 31 May 2019.

2.    The appellant is granted leave to rely upon Ground 1(a) in the amended notice of appeal.

3.    The appeal is allowed.

4.    The orders of the Federal Circuit Court of Australia are set aside and in lieu thereof:

(a)    the decision of the second respondent is quashed;

(b)    the matter be remitted to the second respondent for determination according to law;

5.    The first respondent pay the appellants costs of the appeal, except the costs of and incidental to the appellants application for an adjournment which was heard on 6 May 2019.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from orders of the Federal Circuit Court of Australia made on 19 December 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 8 August 2017: DZF17 v Minister for Immigration [2018] FCCA 3619.

2    The Authority had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a protection visa.

background

3    The appellant is a Shia Muslim citizen of Iraq who arrived in Australia at Christmas Island on 23 June 2013 as an unauthorised maritime arrival. He applied for a protection visa on 10 January 2017.

4    In 2004, he commenced employment with the Intelligence Office, Department of Justice in Location A. He later transferred to Location B.

The Appellants Statutory Declaration

5    The appellant described his duties in some detail in his statutory declaration made on 3 December 2016. He explained that he collected information by employing secret informants, performing character checks of the secret informants and checking their ideological backgrounds. He made inquiries in relation to militia movements, drug trafficking, sectarian killings and the methods by which terrorist attacks were implemented. The information he collected was sent to the intelligence analysis centre. He was responsible for gathering information about people suspected of and involved in terrorist activities such as car bombings and attacks on US bases.

6    In his statutory declaration he also stated he believed a lot of people in Location B knew he worked as an intelligence officer because of the interviews he carried out to obtain information. He reported to the Location B intelligence service which, in turn, reported to the General Directorate of Intelligence in Baghdad.

7    He also stated that, whilst his duty was to collect information, he was at times called to assist police and security forces within their operations against militia groups. He gave as an example that he would witness the arrest of a person under the security forces, where he had been the source of the information which led to the arrest of the person.

8    He stated that, although he testified in court in a secretive way (as part of his duties), there were people who worked in the court system who might leak information:

9.    Sometimes I would have to testify about my information collected before a court of law, and this was usually done in a very secretive way and I would never see the suspect face to face. However, the courts in Iraq are full of people who can tell the militias about my activities within the court and my role in testifying against someone who belongs to a terrorist militia, or those charged under section 4 of the Counter Terrorism Act.

9    In early 2013, the appellant was informed of a security brief from the General Directorate of Intelligence that militia groups had lists of various intelligence and security officers that the militia intended to target.

10    The appellant stated that, on the day he was informed of the security brief, he was also spoken to privately by his commander and told that the government was releasing a number of prisoners. Amongst those to be released was A, a prominent figure associated with the Mehdi army and militia. The appellants commander had checked relevant records and seen that the appellant was the officer who had furnished the relevant information which had been used to secure the arrest of A. The commander was concerned for the appellants safety because A had been heard to say that he knew who had collected the information against him and would punish him:

14.    … [M]y commander [Captain R] at the intelligence office called me to his office. There he told me that the Government in Baghdad had an agreement with some of the parliamentarians who belong to some militia from mehdi army; asaeb ahlaq alhaq and alfadheela party, in which the Government facilitated the release of some of the militia members in order to calm down the critics against the government. He told me that some of the people who were released had plans to target the people who were behind their arrests. Specifically, he was concerned about a released person called [A] who was considered a prominent figure in the mehdi army and militias, as that he was overheard saying that he knew who gathered information against him and he will punish that person accordingly. My commander said he checked [A]s file and found that I was the officer that provided all of the intelligence information against him. He said that he was gravely concerned that [A] actually lives in the same suburb where I did.

11    The appellant recorded in his statutory declaration that, after the security brief had been received, one of his colleagues had been targeted by the Mehdi army, had been sent a death threat letter and that his house had been shot at, resulting in his colleagues brother being injured. His colleague fled the country.

12    The appellant stated that he received a threat letter on 15 March 2013. He stated:

16.    It was placed under my door, it had a bullet in it and the letter read to the meaning of: to the supporters of the occupiers, warning to leave your work, we have received information that the collaborator [redacted] is supplying the government and the coalition forces with information presented to the intelligence agency to facilitate the arrest of mehdi army members (the mujahideen), note: you have to leave your work within three days, you been warned... The letter had a picture of [redacted] and his father, stamped by the mehdi army, dated 15/3/2013. I sent the letter as an image to my commander, and my commander stated that my colleague who fled Iraq received the exact same letter. I knew my life was in immediate and imminent risk at the time.

13    Thereafter, the appellant fled to a deserted area before leaving Iraq on 25 April 2013, leaving his wife and two children behind.

Protection Visa Interview

14    The appellant was interviewed by a delegate on 31 May 2017. He was represented by a migration agent. More is said about the Protection Visa interview (PV interview) below. At this point, it is sufficient to note that his evidence included that:

1.    he had been the person primarily involved in the arrest of A in that he was responsible for collecting relevant information, making inquiries, interviewing relevant witnesses, giving evidence to the Iraqi court in closed session and witnessing the arrest; and

1.    the Iraqi court system had been penetrated by the militia, meaning that it included people who leaked information to militia groups.

The Delegates Decision

15    The delegates decision to refuse the protection visa was made on 15 June 2017. The delegate accepted that the appellant had been employed as an intelligence officer. The delegate also accepted that the appellant played a role in the arrest and, consequently, the imprisonment of [A].

16    The delegate recorded:

The applicant claimed that he supplied incriminating photographs of [A] given to him by one of his informants. The applicant then testified in court which led to the arrest and imprisonment of [A].

17    The delegate stated:

The applicant stated in his PV interview and his SOC that he was told by his superiors to be careful as they had heard that upon [A]s release from prison he had made claims saying that he knew who had gathered information against him and that he would punish that person accordingly.

It was put to the applicant that the process of arresting and detaining someone would involve multiple people, not just himself, following a chain of command. Although I accept the applicants claims that [A] may have made these threats, I am not satisfied that it was relating to the applicant specifically. The threat that was overheard, did not mention the applicant by name, nor would it be plausible that only the applicants name would be listed as the only person responsible for all of the intelligence gathered against [A] as asserted by the applicant in his PV interview and consequently his arrest.

18    As to the threat letter the delegate stated:

The applicant also claimed that he received a threatening letter with a bullet enclosed that was left underneath his door. Specifically, the applicant claims that the letter warned the applicant to leave his workplace within three days, this letter was purported to be from the Mahdi Army, however although it stated that the applicant was known to be supplying information to the government, it did not specify the applicant as being involved with the arrest of [A] and that [A] would be seeking revenge.

The UNHCRs 2012 Eligibility Guidelines state that individuals associated with, or perceived to be supporting the Iraqi authorities, including members of the army, security and intelligence apparatus, are likely to be in need of international refugee protection. Further, the practice of sending threat letters with bullets enclosed has been documented by various sources, this practice has been used by various militia groups, the Mahdi Army have also been known to send out these types of letters accompanied with their insignia or stamp. On the information before me, although I accept that the applicant received a threatening letter ordering him to leave his work place, I am not satisfied that this is in connection with the release of [A] and his claims to seek revenge on those responsible for his arrest. I find it more likely that it was a general warning to those who were working for the Iraqi government and those perceived to be supporting the occupation of Iraq as supported by country information above.

19    The delegate disbelieved the appellant in respect of a claim he made during his PV interview that his brother had received adverse attention from [A] and members of the Mehdi army about 6 months after the appellant arrived in Australia. This disbelief was based on the fact that the appellant had not mentioned these events either in his entry interview or in his statutory declaration. As the Authority was later to observe, the appellant could not have mentioned these events in his entry interview because they had not, at that time, occurred.

20    The delegate concluded that the appellant was not of ongoing interest to individuals connected with the Mehdi army or other militia groups in Iraq. The visa application was refused.

21    Because the appellant was a fast track review applicant, the delegates decision was referred to the Authority for review under s 473CC of the Migration Act 1958 (Cth) on 20 June 2017.

The Authority

22    The Authority also accepted that the appellant was employed as an intelligence officer from 2004 until his departure from Iraq in 2013: A[6].

23    As to what it described as the central event, the Authoritys reasons were contained in two paragraphs. At A[8] and A[9], the Authority stated:

8.    The central event described by the applicant was the release from gaol, in early 2013, of a number of militia members. This was apparently done in an attempt by the Maliki government to garner the support of the militias and their political allies including Muqtada al-Sadr, the founder of the Mehdi Army. One of the men released was [A], known as Devices due to his skills in forming IEDs (improvised explosive devices). The applicant has stated that he was involved in gathering the intelligence that led to this mans arrest and incarceration in 2008 and I accept that he was. The applicant stated that, at the time that the militia members were being released, a meeting was held and all of the intelligence officers were advised of the event via communiqué from their Baghdad central office. They were further advised that there was a list of targets in the hands of the militias, these being the intelligence and security officers involved in their capture or who participated in their arrests. At the PV interview the delegate asked the applicant whether his name was on the list. He does not appear to have answered this question however has not at any point claimed that his name was on such a list.

9.    I conclude that the applicant was one of many officers who had been involved in the arrests of the men being released. I am not satisfied that his name was on a list of targets. The applicant has stated that he was told that [A] had been overheard saying that he knew who had gathered information against him and that this person would be punished. I do not consider it plausible that [A] would have at any point been notified of the name of the intelligence officer who compiled any reports used in his arrest or conviction. I am not satisfied on the basis of this that there is credible information to conclude that a specific threat was made against the applicant.

24    As to the threat letter, the Authority stated at A[10]:

10.    The applicant has stated that he received a letter under his door on 15 March 2013 from the Mehdi Army, addressed to the people who are in alliance with the occupation, the American alliance and stating that as a result of his deeds in supplying information and intelligence Mehdi Army supporters and members were being arrested. The letter demanded that he cease his job within three days. There was a bullet in the envelope with the letter. At least one of his fellow officers received a similar letter and this officers house was sprayed with bullets, injuring his brother. The colleague left the country after the attack. I accept that the applicant received the letter as claimed however I am not satisfied that this required him to leave the country. He has stated that the letter required him to leave his job. He did so and moved to live in a rural area for some six weeks, before leaving the country. From the applicants own evidence the letter does not state that he has been sentenced to death due to his actions against militia members or to being a collaborator or for any other reason. I conclude that, having complied with the demand and left his job in the Ministry of Defence, the applicant was of no further interest to the Mehdi Army. I find that the applicant no longer holds a position in the Ministry of Defence and there is no indication that he has any similar position to return to.

25    In relation to the events concerning the appellants brother the Authority stated:

11.    The applicant further stated at his PV interview that six months after his arrival in Australia the militia, including [A], went in black cars to his older brothers house. They told the applicants brother that the applicant was working with the hated occupying forces against us and that they could kill him (the brother) too. The applicants brother agreed that the militia were good people and that the applicant had abandoned his wife and children. As a result the militia did not kill his brother. The applicant stated that he had not mentioned this at his arrival interview because he was not able to give his full story at that time. I note that he could not in any event have mentioned it at the arrival interview of July 2013 as it had not then occurred. He has not explained why he did not include this event in his statutory declaration of December 2016. There is no explanation as to how his brother knew that [A] was among the visitors. It is not clear why the militia went to his brothers house, however the applicants oral evidence is extensive and I conclude it is not fully translated. I am not satisfied on the basis of the evidence before me that this event occurred.

26    The Authority affirmed the decision not to grant the protection visa.

LEAVE TO ADVANCE NEW GROUNDS OF APPEAL AND EVIDENCE

27    The appellant sought leave to rely upon grounds which had not been argued before the Federal Circuit Court. The principles applicable to whether leave should be granted to rely upon grounds first advanced on appeal are well known. It is sufficient to refer to VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599. One important consideration is the merit of the proposed new grounds. For the reasons identified below, Ground 1(a) has merit sufficient to warrant leave to rely upon it.

28    The appellant also sought leave under r 36.57 of the Federal Court Rules 2011 (Cth) to rely on fresh evidence being a double-translated transcript of the PV interview. This was said to demonstrate unsatisfactory interpretation of the appellants evidence. Section 27 of the Federal Court of Australia Act 1976 (Cth) permits the Court to receive further evidence on appeal. As the Full Court stated in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] (Beaumont, Lindgren and Tamberlin JJ), two conditions must ordinarily be satisfied for the court to receive further evidence on appeal:

1.    first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and

2.    secondly, the evidence must be such that very probably the result would have been different.

29    I have reached the conclusion that the appeal should be allowed on the basis of Ground 1(a). The reasoning for that conclusion does not depend upon the later translation of what the appellant said. Nor does that later translation improve the merit of the remaining grounds (Grounds 1(b) and 2) to the point where leave to rely upon those grounds should be granted.

30    The double translation also contains a written record of the interpretation given by the interpreter who attended the PV interview. No such written record was before the Federal Circuit Court and nor was the audio recording of the PV interview which formed part of the review material given to the Authority. The Minister did not contend that the translations provided in the double translation were inaccurate in any way. In my view, the double translation should be admitted into evidence notwithstanding the first condition mentioned in NASB is not met.

GROUND 1

31    The first proposed ground of appeal was:

1.    The IAA failed to consider important and centrally relevant evidence in the review, in that the IAA did not consider the evidence that:

a.    the appellant gave evidence in Court against [A] and that the Courts are penetrated by agents acting for [A]; or

b.    there was an explanation for why the appellant had not earlier raised the claim that [A] had visited his brothers house in Iraq.

Paragraph (a)

32    In support of Ground 1(a), the appellant relied upon two aspects of the appellants evidence which had been given at the PV interview, namely that:

1.    first, he had given evidence at the court hearing which led to the imprisonment of A; and

3.    secondly, the court was penetrated by people working for insurgent groups who could have communicated the appellants status as a key witness in the case against A.

33    It was submitted that evidence to this effect had been given in Arabic but had not been well interpreted.

34    As to the first matter referred to at [32] above, the delegate in her reasons had stated:

The applicant testified in court which led to the arrest and imprisonment of [A].

35    It is clear from this sentence that, irrespective of any deficiency in interpretation, the delegate understood the evidence which had been given in this respect.

36    As to the second matter referred to at [32] above, the delegate did not mention the appellants evidence to the effect that the court in Iraq was penetrated by people working for insurgent groups who could have communicated the appellants status and involvement in the case against A. Nor did it refer to the content of [9] of the appellants statutory declaration set out at [8] above.

37    The Authority referred to neither of the matters set out at [32] above.

38    The double translation indicated that the following evidence had been given. Unless otherwise indicated, this is discernible whether one uses the actual interpreters translation or the double translators translation of what the appellant in fact said:

1.    The appellant, in the course of his work as an intelligence officer, would give evidence in court about the information he collected. This would be in closed session. His written testimony had to be recorded in front of, or certified by, a judge.

2.    After the closed session, the appellants testimony would be reported to the executive authorities and allied forces and a copy of it would go to the Intelligence and Security High Committee. This aspect of the appellants evidence was not clearly interpreted by the interpreter – see: [39] below.

3.    Because the appellant was the source of information, he would be asked to assist in carrying out arrests, for example, by acting as a guide to locate the relevant person. He would do this about twice a month.

4.    A was a prominent active member of the Al-Mehdi army. He was an expert in explosive devices. On the basis of information collected and provided by the appellant, A was arrested. Although the appellant was given preliminary information (in the form of a photo or photos provided by M), the appellant was the person who collected intelligence about A and conducted investigations into his identity, the crimes he had committed and the threat that he posed. It was the information which the appellant collected which led to As arrest.

5.    The appellant gave evidence in closed session before the court concerning A.

6.    The appellant assisted in, and witnessed, the arrest of A.

7.    In early 2013, the appellants commander, Captain R, notified the appellant and others of a warning letter which had been received from the Directorate-General of Security and Intelligence in Baghdad indicating that militia groups had lists of people who had facilitated or participated in arresting members of militia groups and warning that those people might be targeted.

8.    Captain R also talked with the appellant privately. Captain R stated that he had received information that A was one of the people confirmed to be released and that A had stated that he knew the person who had participated in arresting him and that he would get revenge.

9.    It was possible that the appellant could have been seen in connection with the court proceeding or in connection with the arrest of A by people associated with the militia.

39    The appellants evidence that the Court was penetrated by people who collaborated with militia groups was recorded in the double-translation as follows:

INTERVIEWER: Yeah. So if you were the person that was being very secretive and that you went to court and it was very secretive, it was a closed session, how would they be able to know that you were the person that was responsible?

INTERPRETER: (in Arabic) She said, if you went there and have given your statement in a closed session how would they know that it was you?

WITNESS: (In Arabic) First of all, the court itself is penetrated by collaborators and people who have sympathy with the militias. And there are also officers who collaborate with the militia when the reports go to executive authorities and the High Committee of Security Intelligence. Collaborators, who would leak such information to the militias.

INTERPRETER: (In English) He said first of all the court has many officers who some of them are linked to the militia, and he said that as well as when the report going to different level of intelligent, there is so many officers who are cooperate with this army militia.

WITNESS: (in Arabic) As you know, the Iraqi security forces, the military, the Ministry of Interior, Ministry of Defence, are consisted of combined armed militias in accordance to the law of amalgamation. Therefore the security forces were penetrated.

INTERPRETER: (In English) and he said that maybe you are aware that the army and the intelligence are, according to the law, which is regroup all the militia together, they become a part of the army as well as the police and the intelligent.

40    To similar effect was [9] of the appellants statutory declaration, set out at [8] above. That paragraph referred to the courts being full of people who could tell militia groups about the appellants activities. The appellants representative also made submissions at the end of the PV interview, which included:

Now, more importantly, he gave some sort of written testimony in the court, at the closed court hearing before a judge. However, the corruption in Iraq is very well documented. We have a lot country information that talks about the infiltration by the military groups within the police and the military forces. We have [indistinct] 2005 that amalgamated actually the militia groups within 100,000 members of the militia groups within the Iraqi military and police. Not all the people who worked for the intelligence or the police of for the military are loyal to the country. Some of them have hierarchy. They are loyal more to the military groups and to the police. They have their religious beliefs, I assume, so thats why some of this information were leaked actually and his commanders warned him that his name was actually in this file, specifically in this file.

41    The appellants evidence as to the possibility that he was in fact seen by people associated with the militia in connection with his court appearance or in connection with the arrest of A, was as follows:

WITNESS: (In Arabic) In the court, when I go out, it is possible that I have been seen by them. And there were people who had links to the militias and were aware of what was happening at the offices of the court. As for [A], I myself, eye-witnessed his arrest, and there were people in the neighbourhood who also witnessed their arrest. And of those people, many were members of al-Mehdi army, also people who are loyal to the religious militias.

INTERPRETER: (In English) Yeah, and he say that - and said that while Im in court there Is many officers saw me coming and going as we and also I was witnessed myself the operation of arresting A.

42    As mentioned, the Authoritys reasoning on this topic was contained at A[8] and [9] set out at [23] above.

43    The Authority concluded, at A[9], that it was implausible that A would have been notified of the appellants name. The only reason given at A[9] for reaching that conclusion was the Authoritys finding that the appellant was one of many officers who had been involved in the arrests of the various people being released. This did not address the claim which the appellant had made which centred on his specific involvement in the arrest of A.

44    The Authority did not engage with the case the appellant had advanced in the following respects:

1.    First, the appellants case was that he was the person primarily responsible for securing the arrest of A. The Authority accepted at A[8] that the appellant was involved in gathering the intelligence that led to As arrest and incarceration, but did not refer to or assess the level of his involvement. For example, the Authority did not refer to the appellants evidence that, apart from receiving the photo or photos from M, he was responsible for gathering the information which led to the arrest of A. It did not mention that the appellant had given evidence in court in closed session. It did not mention the appellants evidence that he was a witness at the arrest. These matters were directly relevant to the probability of A coming to learn of the appellants identity and involvement.

2.    Secondly, whilst it was a closed session of the court at which he had given evidence, the appellants case was that the court had been penetrated by militia groups such that it was likely that information would be leaked. Again, this was directly relevant to the probability that A had come to learn of the identity of the appellant. It was not referred to or addressed by the Authority.

3.    Thirdly, the appellant raised the possibility that he could have been seen either in the context of the court process or when he participated in and was present at the arrest. In this regard, it is to be recalled that – as a result of the various inquiries he had to make over the course of carrying out his duties as an intelligence officera number of people in the community knew that he was an intelligence officer.

45    Section 473EA(1) provides that the IAA must make a written statement that:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; and

(c)    records the day and time the statement is made.

46    Section 25D of the Acts Interpretation Act 1901 (Cth) provides:

Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression reasons, grounds or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

47    The Full Court has held that reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth): BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35 at [45]-[49].

48    The obligation under provisions such as s 473EA does not require a decision-maker to refer to all of the evidence before it. In ETA067 v Republic of Nauru (2018) 92 ALJR 1003 at [13], Bell, Keane and Gordon JJ stated in analogous circumstances (citations omitted):

[13]    The absence of an express reference to evidence in a tribunals reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons which, here, included referring to the findings on any material questions of fact and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.

49    However, where reasons do not refer to particular evidence, provisions imposing an obligation to provide reasons may entitle a judicial review court to draw the inference that the decision-maker did not regard the evidence as material – see: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69].

50    Further, in an appropriate case, a failure to refer to evidence (or a claim) might enable the inference to be drawn that the decision-maker did not consider the evidence (or claim), either at all or in a real way. The more significant the evidence or claim, the easier the inference. A failure to consider evidence might also lead to a conclusion that there was a failure to consider or engage properly with a claim made.

51    In Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67, the Full Court stated at [34]:

[34]    The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: [Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594] at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: [Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431] at [52].

52    The function of the Authority was to undertake a de novo merits review: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [17] (Gageler, Keane and Nettle JJ), at [85] (Gordon J) and at [92] (Edelman J). That review was to be conducted in the manner contemplated by Part 7AA. The Authority must in fact review the reviewable decision and it must do so by considering the review material provided to it: s 473CC and s 473DB(1).

53    The consideration which the Authority must give to the review material must be a real consideration in the sense described in cases such as Tickner v Chapman (1995) 57 FCR 451 and Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352.

54    The Authority did not give proper consideration to, in the sense of engaging in an active intellectual process with, the evidence which the appellant had given in the PV interview, or the case he advanced, in relation to the matters identified at [44] above. I reach that conclusion on the basis of the actual interpretation given in the PV interview. Nor did it give proper consideration to [9] of his statutory declaration. The statutory declaration and the recording of the PV interview were part of the review material. In failing to give real consideration to the review material the Authority failed to exercise its statutory function. Ground 1(a) is made out whether or not regard is had to the further evidence admitted on appeal.

55    The explanations given by the appellant of his level of involvement in the arrest of A and how it was that he might have been identified were central and critical to his claim. These would have been mentioned in the reasons for decision if they had been genuinely considered. The reasons do not disclose what consideration was given to the various aspects of the appellants evidence referred to above concerning what the Authority itself recognised to be the central event or whether his evidence was accepted or rejected or what conclusions were drawn from that evidence.

56    Leave should be granted to raise Ground 1(a) and the appeal should be allowed.

Ground 1(b)

57    At the interview with the delegate, the appellant gave the following evidence:

INTERVIEWER: Okay. Im going to ask you specific questions now and I would like yes or no answers, if you can, because were running out of time. You had never mentioned that your - that militia went to your brothers house in your statement of claims, in your application or in your entry interview. Why are you raising those claims now?

INTERPRETER: (in Arabic) She says, I want your short answers now because the time is passing quickly and I want yes or no answers. You, not at your first interview, not in your statement, ever mentioned that the militias went to your brothers house. Why are you mentioning it now?

WITNESS: (In Arabic) I didnt mention it? Because I thought I would have the chance to explain it to you during this interview. Because I thought at the interview, I will be talking in detail. You see, nobody has ever asked me whether my family has been targeted or not. Now when you ask me about this, I simply gave my answer.

INTERPRETER: (In English) He said that because here I said that I can talk freely about what happened, and never anyone before you now ask me about what happened to my family.

58    It was submitted that the interpretation given by the PV interview interpreter was inadequate to convey the answer in fact given. It was submitted that the evidence, given in Arabic, formed a part of the review material (together with the translation). It was submitted that the evidence (in Arabic) was not considered because the translation was inadequate. It does not matter that the failure to consider what was actually said involved no fault of the Authority cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47])

59    Ground 1(b) centred on A[11], set out at [25] above.

60    The Authority found that the appellant had not explained why he did not include [the asserted visit by A and the militia to his brother’s house] in his statutory declaration of December 2016”. This might indicate that the Authority did not have regard to the answer given by the appellant set out at [57] above, which does contain an explanation. Reading the Authority’s reasons literally, the Authority did not conclude that the explanation given was unsatisfactory. It concluded that the appellant had not given an explanation at all.

61    On the other hand, it may be that such a literal interpretation of the Authoritys reasons contravenes the principle that its reasons should not be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272..

62    Ultimately, but with some doubt, I conclude that the better reading of the Authoritys decision is that it was troubled by the fact that the appellant had not mentioned the event in his statutory declaration and it did not consider that the omission had been satisfactorily explained. The Authority was otherwise willing to give the appellant the benefit of the doubt that the perceived lack of explanation as to why the militia went to the appellants brothers house might be explained by the fact that, on the Authoritys view, there was not a full translation of the evidence at the PV interview.

63    That is, I conclude that the Authority did consider the appellant’s explanation in that it considered the interpretation of what he said at the PV interview contained on the recording of the PV interview. There is insufficient difference between the interpretation given in the PV interview and what the appellant in fact said (as revealed by the double translation) to warrant granting leave to rely upon Ground 1(b).

GROUND 2

64    Ground 2 was as follows:

2.    The decision of the IAA is affected by legal unreasonableness in that the IAA unreasonably failed to consider whether to invite the appellant to give new information in the review relating to the reason why [A] visited his brothers house in Iraq.

65    To make good this ground, the appellant bears the onus of establishing that:

1.    the Authority failed to consider exercising the discretion to get new information under s 473DC(1);

2.    the failure to consider exercising the discretion was legally unreasonable.

66    It was submitted that the failure to consider exercising the discretion should be inferred from the failure to mention any consideration of the issue in the reasons. It was said that the Authority had chosen to give reasons about the information before the Authority at A[3], where it stated:

Information before the IAA

3.    I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act). On 23 July 2017 the IAA received a submission on behalf of the applicant from his representative, Mr Alkafaji. The representatives submission addresses the delegates decision and findings. As such, it may be regarded as argument rather than information and I have had regard to it.

67    It was submitted that this should be taken as an exhaustive statement of the Authoritys reasons on the topic, reference being made to East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at [308]-[310].

68    A[3] is merely a statement of the information before the Authority. I would not infer from that statement that the Authority did not consider exercising the discretion to get new information. However, even if it did fail to consider exercising the discretion, for the reasons which follow I do not consider that any such failure was legally unreasonable.

69    Ground 2 was also directed to the reasoning at A[11], set out at [25] above.

70    The appellant submitted that the Authority evidently considered it important to know why the militia and A visited the appellants brothers house and considered that it was not clear why they did. In those circumstances, it was submitted, the Authority ought to have considered asking the appellant for an explanation.

71    The Authoritys reasons in this respect are curious. It would appear tolerably clear from the second sentence of the Authoritys reasons at A[11] that the reason for the militia and A visiting the appellants brother was to threaten the appellant and his brother because they considered the appellant was working against the militia. The Authority did not elucidate why it concluded it was not clear why the militia went to his brothers house.

72    Reading the Authoritys reasons at A[11] fairly, it was not troubled by the asserted lack of explanation of why A and the militia would visit the appellants brothers house. It was prepared to proceed on the basis that an explanation had been given (but was not translated). This aspect of the Authoritys consideration of this issue was not of such importance that a failure to consider exercising the discretion to get new information, assuming there was such a failure, could be regarded as unreasonable. I also note that it is difficult to see what explanation could have been given beyond the explanation in fact given and recorded by the Authority in the second sentence of A[11]. Proposed Ground 2 has insufficient merit to warrant granting leave to rely upon it.

CONCLUSION

73    The parties agreed that, if the appeal were successful, there should be no order with respect to the costs before the Federal Circuit Court because none of the grounds advanced in the appeal had been advanced before that court. The following orders should be made:

1.    The appellant is granted leave to rely upon the affidavit of Hassan Alsudani filed on 31 May 2019.

2.    The appellant is granted leave to rely upon Ground 1(a) in the amended notice of appeal.

3.    The appeal is allowed.

4.    The orders of the Federal Circuit Court are set aside and in lieu thereof:

(a)    the decision of the Authority is quashed;

(b)    the matter be remitted to the Authority for determination according to law;

5.    The first respondent pay the appellants costs of the appeal, except the costs of and incidental to the appellants application for an adjournment which was heard on 6 May 2019.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.

Associate:

Dated:    21 June 2019