FEDERAL COURT OF AUSTRALIA

EKN17 v Minister for Immigration and Border Protection [2019] FCA 1135

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof there issue absolute in the first instance:

  (a)    a writ of certiorari directed to the second respondent to quash the decision of 1 September 2017; and

  (b)    a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law.

3.    The first respondent pay the appellant’s costs of the appeal as agreed or assessed.

4.    Any application with respect to costs of the proceedings in the Federal Circuit Court be made within 7 days.

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

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    The appellant applied for a Safe Haven Enterprise (Subclass 790) visa on 6 March 2016, claiming to fear harm after making negative comments about Qais Al-Khazali, the leader of the Shia militia group Asa’ib Ahl al-Haq (AAH), while driving members of the AAH militia in his taxi.

2    A delegate of the Minister for Immigration and Border Protection refused the grant of a visa on 22 May 2017. The delegate was not satisfied that the appellant met the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth). She therefore concluded the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a). She was also not satisfied that Australia owed protection obligations to the appellant under s 36(2)(aa) of the Act.

3    The Immigration Assessment Authority affirmed the delegate’s decision on 1 September 2017. The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority’s decision. The amended application for judicial review was dismissed on 13 November 2018. The appellant appeals from the orders dismissing his application.

Background

4    The primary judge summarised the relevant background facts at J[3] and the Authority’s reasons for decision at J[7] to J[11]: EKN17 v Minister for Immigration & Anor [2018] FCCA 3589. The following account of facts incorporates but expands upon that given in the reasons of the primary judge.

Events in Iraq

5    The appellant was born in Iraq and is a Shia Muslim. He was working as a taxi driver from 2006 onwards. On 30 January 2013, he picked up three men who wished to be taken into the city. He engaged in conversation with them. The passengers made derogatory comments about Moqtada Al-Sadr, the founder of the Mehdi Army. The appellant echoed those comments. The three men admired what he said and then asked the appellant what he thought of Qais Al-Khazali, the leader of the AAH. The appellant made derogatory comments about him too, saying he was even worse than Moqtada Al-Sadr.

6    The men became very angry and revealed that they were members of the AAH. Indeed one of them was a leader of a particular group within AAH. They demanded that the appellant pull his taxi over and threatened to cut out his tongue.

7    The appellant apologised profusely but was told that his only redress was to join the AAH. The men told the appellant that he would receive telephone instructions on how to do this. Ultimately, the appellant was taken to a cemetery where a gun was put to his head and he was ordered out of the vehicle. The men took a photo of him and his vehicle, and demanded his phone number, and told him they would murder him if he refused to join the AAH.

8    The appellant reported all of this to the Department of Police on the same day that the events occurred. The police prepared a report dated 30 January 2013 in the following terms (being an English translation of the original):

We should like to inform you that on 30/01/2013 we received information from the Central checkpoint informing us that three men threaten to kill [the appellant]. He was driving his taxi and as he approached [x] Depot, he was hailed by three people; the three of them were unknown to him. They asked him to take them to the town centre.

As he drove toward the destination, one of them began to utter derogatory remarks about Imam Moqtada Al-Sadr leader of Al-Mahdi’s Army. The driver, [the appellant], agreed with them and said that Imam Moqtada Al-Sadr is a failure of a man and does not have the skills to run a country. The passengers were happy to hear what the driver said and then they asked him of his opinion of Mr Quaiss Al-Khozaali, the leader of the Asaeb Ahl Al-Haq (the League of the Righteous Ones). The driver, who came to our office to file this report, told them that Qaiss Al-Khozaali is worse than Moqtada Al-Sadr because he does not understand anything.

Then the three of them began to hail abusive words at [the appellant] and threated to cut his tongue. They were very angry because he denigrated Qaiss Al-Khozaali. [The appellant] apologised for what he said but the three men said that they will accept his apology only on one condition and that is to join Asaeb Ahl Al-Haq (the League of the Righteous Ones).

They then took him to a [graveyard] … and pointed the gun on his head and ordered him to alight from the vehicle. He thought that they will murder him. But they took a photo of him. Then then [sic] took a photo of his vehicle and his phone number and told him that they will test him before he joins them and if he refused to join, they will cay [sic] out their threats and murder him. They left him and went on their way and the driver returned home.

[The appellant] then came to our police station to report the matter. We will inform you of any development in this matter.

Colonel [X]

30/01/2013

9    The authenticity of this document, which provides a contemporaneous account of what occurred, has never been doubted.

10    Two days later the appellant received a phone call from an unknown telephone number telling him to go to a certain place. The caller said “you know who we are”. The appellant responded that he did not know and would not go. The caller threatened him. Two days later the call was repeated. The caller said that this was the appellant’s last chance and that the next time “we will act on it”. The applicant took steps to depart Iraq and left on 14 February 2013.

11    He left his wife and two children behind.

12    The appellant arrived in Australia on 14 March 2013. He attended an “arrival interview”, at which he was told to be brief in what he said.

Visa application and PV interview

13    On 6 March 2016, some three years later, the appellant applied for a Safe Haven Enterprise Visa. The appellant prepared a statutory declaration dated 2 March 2016 which accompanied his visa application. In the statutory declaration, the appellant stated that his family in Iraq had found a letter in August 2013 saying “death is coming even after a while”.

14    The appellant attended a Protection Visa interview (PV interview) with a delegate on 20 March 2017. He provided a number of documents to the delegate. The documents included two letters, one dated 22 February 2013 and one dated 8 September 2014. Both letters purported to be from the AAH.

15    The 22 February 2013 letter stated:

This warning is directed at [the appellant].

You have to understand all too well that you will be punished for your refusal to join us.

You refused to participate in our operations and you refused to belong to us and for this reason the Special Committee of the League of the Righteous Ones in Holy Najaf (Asseb Ahl Al-Haq) decided that you will not be let off without punishment.

You will be murdered and you will be verily murdered at the hands our Islamic Resistance Heroes.

Allah is capable of giving us victory.

Islamic Resistance in Iraq

(Asaeb Ahl Al-Haq)

Holy Najaf

22/02/2013

16    This letter is dated 8 days after the appellant’s departure from Iraq.

17    The 8 September 2014 letter stated:

This warning is directed at [the appellant].

Our Islamic Resistance men investigated you and they received information that you have travelled abroad.

The information we have is that you have fled Iraq to an unknown destination. This is the case with all cowards and collaborators and spies.

Therefore we urge all members of our Islamic Resistance to search more and more for the traitor [the appellant]. He who may found out his whereabouts, anytime, anywhere, should murder him without mercy and apply the punishment of Allah and the league of the Righteous ones by killing him.

Victory is for the Islamic Resistance.

Islamic Resistance in Iraq

(Asaeb Ahl Al-Haq)

Holy Najaf

08/09/2014

The Delegate’s Decision

18    The delegate did not accept that either of these letters, or the letter of August 2013 referred to in the statutory declaration, had been received. She reached this adverse conclusion pointing out, amongst other things, that there was a “lack of security features” in the threat letters alleged to have been sent by the militia, which made it difficult to verify their authenticity. The delegate:

(1)    stated: “it seems illogical that [the AAH] would send him letters after not acting on the threats they issued over the phone, when they apparently knew his home address”; and

(2)    referred to: “the illogicality of the AAH sending letters to the applicant rather than harming him when they had an opportunity to do so and when they knew of his whereabouts”.

19    The delegate was not concerned by the fact that the letters dated 22 February 2013 and 8 September 2014 had not been mentioned in the appellant’s statutory declaration.

20    The delegate expressed what she accepted in the following way:

•    [The appellant] was born in [Town A].

•    He is a Shia Muslim.

•    In 2013, he was working as a taxi driver. He was driving three passengers to [Town A] city centre. One passenger initiated a conversation about the leaders of militant groups operating in southern Iraq.

•    He insulted Moqtada Al-Sadr (leader of the Mahdi Army). The passengers agreed with his assessment of Al-Sadr. They asked him what he thought of Qais Al-Khazali (leader of Shia militia Asa’ib al-Haq/AAH). The applicant insulted him. The passenger threatened to cut his tongue off, and produced a gun from underneath his shirt. It became apparent that the passenger was a leader of Asa’ib Ahl al-Haq.

•    He dropped the passengers off near a cemetery. The Asa’ib Ahl al-Haq leader threatened him with his gun, photographed his vehicle and took his phone number.

•    The applicant apologised to the men. He was told that the apology would only be accepted if he joined Asa’ib Ahl al-Haq.

•    He reported the incident to the police. They wrote an incident report but told him that nothing more could be done.

•    He has received two phone calls from Asa’ib Ahl al-Haq.

•    If he returned to Iraq, he would do so as a failed asylum seeker from the West.

21    However, the delegate recorded that she did not accept that:

•    The AAH sought to recruit [the appellant].

•    He received letters from the AAH, threatening him for not joining their group.

22    The delegate’s decision was referred to the Authority for review under s 473CC of the Act on 25 May 2017.

The Authority

23    The Authority accepted the appellant’s central claims and his account of the statements and actions of the militia members during the taxi ride. The Authority accepted that the appellant was threatened by members of the AAH in early 2013 and that he feared harm from the group. Unlike the delegate, the Authority also accepted that the AAH militia members had demanded that the appellant join the AAH, and considered it “plausible that the [appellant] was told that he would have to join the AAH in order for his apology to be accepted”.

24    The Authority did not accept, however, that the appellant would still be of any interest to the AAH after four years. This conclusion was based on the Authority’s finding that:

(1)    the letters dated 22 February 2013 and 8 September 2014 that the appellant produced at the PV interview were not genuine;

(2)    the appellant’s family in Iraq had not received any of the three threat letters.

25    It is the Authority’s reasoning on this issue at A[8] around which the main issues in the appeal turn:

In considering whether the applicant would remain of any interest to the AAH after some four years, he contended in his statutory declaration that in August 2013 his family found a threat letter saying that “death is coming even after a while”. The delegate asked the applicant about this at the PV interview. The applicant stated that his parents had received the letter but when he asked them to send it to him in Australia they said they no longer had it. The applicant however then provided two further typed documents bearing the AAH letterhead and watermark. These documents are dated 22 February 2013 and 8 September 2014. The first states that he will be punished for his refusal to join the AAH and will be murdered, the second advises that they are aware that he has travelled overseas and urges all members of the Islamic Resistance to search for him and murder him. The applicant has at no point mentioned receiving these documents. In his statutory declaration of March 2016 the only threat letter mentioned was that of August 2013, which he now states his parents did not keep. I am not satisfied that the documents provided at the PV interview are genuine. I am not satisfied that any threat letter has been received by his family at any point since he has departed Iraq. He has not claimed that any members of his family have been approached by the AAH and I am satisfied that they have not. I do not accept that the applicant remained of any interest to the AAH or any other militia groups after early 2013.

26    Having reached the conclusions it did at A[8], the Authority was not satisfied that there was a real chance that the threats made against the appellant would be realised, or that the appellant would face any threats or harm in the future stemming from the incident.

27    The Authority was not satisfied that Australia had protection obligations under s 36(2)(a).

28    The Authority also concluded that the appellant would not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia with the result that Australia did not owe him protection obligations under s 36(2)(aa).

Federal Circuit Court

29    The appellant filed an application for judicial review in the Federal Circuit Court on 3 October 2017. The application was amended on 30 August 2018. The appellant ultimately relied upon grounds 2, 3, 4 and 5 of his amended application.

30    Ground 2 of the amended application before the Federal Circuit Court was summarised by the primary judge at J[13] as follows:

Ground 2 is that as the Authority had some doubt in making the finding about the two letters provided to the delegate at interview it ought to have considered, but did not, that it might be wrong about its finding when assessing whether or not there was a real chance of persecution for the purposes of the review.

31    In relation to the two threat letters which the appellant had received, the Authority had stated at A[8] that: “I am not satisfied that the documents provided at the PV interview are genuine”.

32    In rejecting ground 2, the primary judge found that “the finding expressed in that way does not give rise to any inference that the Authority had any doubt about its findings such that it was required to ask whether it was wrong”: J[13]. At J[18], the primary judge stated:

The mere fact that the findings made in [8] of the Authority’s reasons were expressed in terms of satisfaction does not mean that the Authority did anything other than reject those claims.

33    The primary judge referred to the decision of Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60], [62]-[63] and [67] upon which this ground was based. The primary judge concluded that the principle established in Rajalingam did not apply because the Authority had no relevant doubt about its conclusion.

34    Ground 3 of the amended application before the Federal Circuit Court was that the Authority fell into jurisdictional error in concluding at A[8] that the appellant’s family did not receive a threat letter in August 2013. The appellant submitted that the Authority relied upon the statutory declaration to find that the two threat letters the appellant provided were not authentic, whilst assuming the authenticity of the two letters to conclude that the appellant’s family had not received the August 2013 letter. It was said that this involved illogical reasoning.

35    The primary judge concluded that ground 3 was not an accurate reflection of the Authority’s reasoning. His Honour stated that the underlying assumption at A[8] of the Authority’s reasons was that “had the applicant in fact received the threat letters of 22 February 2013 and 8 September 2014 as claimed he would have referred to those at the same time as mentioning the letter of August 2013”: J[21]. It should be mentioned that there was nothing before the Federal Circuit Court to suggest that the appellant had claimed that he had received the letters of 22 February 2013 and 8 September 2014 at the time he made his statutory declaration. His case was that the letters had been received by his family in Iraq. Obviously, he had the two letters by the time of the PV interview (over a year after the appellant made his statutory declaration), but it is not clear when he claimed to have received them or when he claimed to have known that they existed.

36    Ground 3 was dismissed on the basis that the appellant did not establish the factual premise to the ground of review. The Authority did not accept that the threat letters dated 22 February 2013 and 8 September 2014 were genuine or use such a finding to conclude that the letter of August 2013 had not been received by the appellant’s family.

37    Ground 4 of the amended application was that the Authority fell into jurisdictional error by equating a “low risk of harm” with a “remote chance of harm”. The appellant pointed to a number of authorities to establish that a low risk of harm can constitute a real risk of harm: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ) and 429 (McHugh J); Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 572.

38    The primary judge dismissed ground 4 because the Authority “did not in fact reason in the way that the applicant alleges”. The primary judge noted that the reference at A[12] to Shias facing a “low risk of generalised violence” was a reference to what was cited as ‘referred material’. His Honour noted that the Authority examined the country information in greater detail, including a DFAT country report concerning the general security situation in 2013 and 2014, before concluding that “there was no real chance the applicant would face serious harm should he return on the basis of the level of general violence”: J[24]. The primary judge therefore did not accept that the Authority reasoned that there was no real chance of violence solely from the fact that there was a low risk of violence.

39    Ground 5 of the amended application contended that the Authority committed a jurisdictional error in failing to turn its mind to the reasonably foreseeable future in making its findings at A[13], as demonstrated by its failure to refer expressly to “the reasonably foreseeable future” in that paragraph.

40    The primary judge held that “the mere lack of reference to the reasonably foreseeable future does not mean that the Authority closed its mind from considering what might happen to the applicant at a time immediately after he arrives in Iraq”. The primary judge considered the whole of the Authority’s assessment of the facts and concluded that the “application of those facts of the applicant’s claims to the country information is premised upon a forward looking test” and so rejected ground 5: J[27] to J[29].

The Appeal

41    The grounds of appeal before this Court were set out in a Notice of Appeal filed on 28 November 2018 (numbering amended):

1.    The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), was obliged to take into account the possibility that the two threat letters were genuine. If the IAA had taken this possibility into account, it may have affected the IAA’s assessment of whether the applicant faces a real chance of persecution on his return to Iraq.

2.    The appellant contended in the Federal Circuit Court that the IAA relied on the applicant’s reference in his 2 March 2016 statutory declaration to receiving the August 2013 threat letter as a basis for making the intermediate finding that the applicant did not receive the February 2013 and September 2014 threat letters, it is then illogical or irrational to use the intermediate finding to find that the applicant did not received [sic] the August 2013 threat letter.

3.    The appellant contended in the Federal Circuit Court that the IAA The IAA [sic] stated at [12] that “Shias in Shia dominated provinces in southern Iraq are at low risk of generalised violence”, and cited a 2015 DFAT report in support of this statement. The IAA then found at [13] that the risk of harm the applicant faces “is not at a level that would give rise to a real chance that the applicant would face serious harm should be [sic] return”. This finding involves a misapplication of the real chance test, because High Court decisions say that a low risk is sufficient for there to be a real chance.

4.    The appellant contended in the Federal Circuit Court that the IAA has overlooked considering matters into the reasonable foreseeable future in a manner which constitutes jurisdictional error.

Ground 1

42    Ground 1 of the appeal, which mirrored ground 2 of the application to the Federal Circuit Court, concerned the Authority’s conclusion at A[8] that the two threat letters presented by the appellant at the PV interview were not genuine and that no threat letters had been received by the appellant’s family.

43    The appellant submitted that the Authority’s conclusion displayed sufficient doubt such that the Authority was required to (but did not) consider the possibility it was wrong; it was required to (but did not) make an assessment regarding the real chance of persecution the appellant might face if the two letters provided to the delegate were genuine.

44    As noted at [33] above, this argument was based on the principle established in Rajalingam. A Full Court of this Court (Keane CJ, Perram and Yates JJ) referred to Rajalingam with apparent approval in MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123 at [94] and [95].

45    The first step in applying the principle is to determine whether the Authority in fact had a real doubt about its conclusion with respect to the relevant past events: AKR17 v Minister for Home Affairs [2018] FCA 1684 at [26]. If it did not, no occasion arises to consider whether the Authority should have taken into account the possibility it was wrong.

46    Reading the Authority’s reasons fairly and practically as a whole, it cannot be said that the Authority’s finding that the two threat letters were not genuine was attended with any doubt.

47    Ground 1 must fail.

Ground 2

48    The second ground of appeal mirrored the third ground of the application to the Federal Circuit Court, outlined at [34] and [35] above. It centred on the reasoning at A[8], extracted at [25] above.

49    The Federal Circuit Court correctly concluded that the Authority did not accept that the August 2013 letter had been received by the appellant’s family. Rather, it employed the appellant’s assertion that the August 2013 letter had been received by his family in its reasoning process. The assertion in the statutory declaration that the August 2013 letter had been received by the appellant’s family, coupled with a failure to mention the letters dated 22 February 2013 and 8 September 2014, indicated to the Authority that those two letters did not in fact exist at the time of the statutory declaration. That reasoning could only make sense if either:

(1)    the appellant claimed to have known of the letters dated 22 February 2013 and 8 September 2014 at the time he made his statutory declaration dated 6 March 2016; or

(2)    the Authority reasoned or assumed that the appellant would have known about those two letters at the time he made his statutory declaration if those two letters had in fact been received by his family in Iraq.

50    It was permissible for the Authority to consider the timing in which the appellant raised certain matters in the visa application process and:

(1)    conclude that the matter was of such significance that, if it had occurred or were true, it would have been mentioned at an earlier stage than it was; and

(2)    infer from the appellant’s failure to mention the matter, taking into account any other relevant circumstances or explanations, that in fact the matter did not occur or was not true.

51    Reasoning in that way does not involve any lapse in logic. However, as mentioned, it could only make sense in this case if the existence of the letters dated 22 February 2013 and 8 September 2014 was something which the appellant claimed he knew about at the time of his statutory declaration, or if the Authority reasoned or assumed that the appellant would have known about them if they had in in fact then been received by his family in Iraq.

52    The appellant, who was unrepresented at the hearing of the appeal, made submissions which suggested his complaint was not confined to a lack of logic but extended to complaints of unreasonableness or a failure properly to review his claim, including the question whether the threat letters had in fact been received.

53    The parties were invited to make further written submissions on two issues, namely whether the Authority:

(1)    concluded at A[8] that the appellant had given inconsistent accounts of whether his parents kept the letter of August 2013 and, if so, whether that conclusion was open on the material before the Authority; and

(2)    failed to undertake the “review” contemplated by s 473CC of the Act or acted legally unreasonably in reaching the conclusions that no threat letters had been received and that the letters dated 22 February 2013 and 8 September 2014 were not genuine.

54    The appellant engaged counsel to prepare his further written submissions.

The First Issue

55    The first issue arises from the sentence at A[8] emphasised in the following extract (emphasis added):

In considering whether the applicant would remain of any interest to the AAH after some four years, he contended in his statutory declaration that in August 2013 his family found a threat letter saying that “death is coming even after a while”. The delegate asked the applicant about this at the PV interview. The applicant stated that his parents had received the letter but when he asked them to send it to him in Australia they said they no longer had it. The applicant however then provided two further typed documents bearing the AAH letterhead and watermark. These documents are dated 22 February 2013 and 8 September 2014 … In his statutory declaration of March 2016 the only threat letter mentioned was that of August 2013, which he now states his parents did not keep. I am not satisfied that the documents provided at the PV interview are genuine. I am not satisfied that any threat letter has been received by his family at any point since he has departed Iraq.

56    The use of the word “now” in the underlined passage might suggest that the Authority considered the appellant had changed his account of relevant events – that is, that he had previously stated his parents had kept the letter, but “now” (presumably at the PV interview) asserted the contrary.

57    If the Authority had so reasoned, that would have involved error. There was nothing in the material before this Court (or the Federal Circuit Court) which indicated that the appellant had previously stated that his family had kept the August 2013 letter.

58    However, neither Counsel contended that the underlined sentence should be read as indicating that the Authority considered the appellant had changed his account in relation to whether his parents had kept the August 2013 letter. Accordingly, the first issue can be put to one side.

59    I would note that the underlined sentence indicates that the decision-maker took an adverse view as to the appellant’s credibility on this issue. The Authority’s use of the word “now”, read in the context of A[8] as a whole, implies scepticism or disbelief in the account the appellant gave at the PV interview. The sentence is immediately followed by two sentences which necessarily involve adverse credibility findings. Perhaps the Authority considered it was implausible that the appellant’s family would not have kept the August 2013 letter if it had truly been received. Perhaps it considered that, for some reason, the appellant should have mentioned earlier than he did that his family had not kept the August 2013 letter. The reasons do not expose why the Authority took the adverse view it did. The appellant’s evidence referred to at A[8] – that when he asked his parents to send him the August 2013 letter they said they no longer had it – was not inherently implausible. There could have been any number of explanations for his parents not keeping the letter, none of which appears to have been explored.

The Second Issue

60    The second and more significant issue related to the second matter put to the parties for further submission, namely whether the Authority failed to undertake the “review” contemplated by s 473CC of the Act, or acted legally unreasonably in reaching the conclusions that (a) the letters dated 22 February 2013 and 8 September 2014 were not genuine and (b) none of the three threat letters had in fact been received by the appellant’s family.

Legal principles

61    The Authority is required to conduct a “review” of a “fast track reviewable decision” referred to it: s 473CC. It must do so “by considering the review material” provided to it: s 473DB(1). In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [17], Gageler, Keane and Nettle JJ made the following observations about a “review” under s 473CC(1):

(1)    the “review” is “a de novo consideration of the merits of the decision that has been referred to it”;

(2)    the “task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met”.

62    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. In the context of a Part 7 “review”, it has been said that the review requires a conscious consideration of the evidence and material before the decision-maker and of the arguments and issues which arise: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [44]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38]. Whilst a review under Pt 7 is different to a review under Pt 7AA in various ways, a Pt 7AA “review” requires a conscious and genuine consideration of the “reviewable decision” and “review material” and this necessarily includes a genuine consideration of the issues which arise.

63    Further, the “review” contemplated by Pt 7AA is not one which begins with a pre-conceived outcome. An approach to the review task which involves seeking to identify reasons for rejecting a visa applicant, or reasons for affirming the decision under review, could not be described as a de novo consideration of the merits. Such an approach is liable to result in a failure to consider and weigh properly those matters which favour the fast track review applicant. Such an approach involves a misunderstanding of the nature of the statutory review required to be undertaken.

64    A failure to carry out the “review” or to carry it out in the way contemplated by the legislative scheme amounts to a failure to exercise jurisdiction, or the exercise of jurisdiction in a manner affected by jurisdictional error.

65    In AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Full Court (Kenny, Griffiths and Mortimer JJ) emphasised the need, when dealing with so-called “inconsistencies”, to be precise about the issue to which the label “inconsistency” is attached, so that real consideration can be given to the significance of the “inconsistency” in the context of the case as a whole. Their Honours observed that, whilst the weight and evaluation of the particular issue in the context of the case as a whole is one for the decision-maker, a failure to appreciate the nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

66    Their Honours said at [28]:

[E]ven where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

67    These observations apply equally to the situation where the issue is one of the time at which a claim is made, or a fact is asserted, as opposed to the giving of necessarily incompatible accounts of what occurred. In AVQ15 at [27], the Full Court observed:

… In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

68    The weight to be attached to an “inconsistency” can only be assessed when the precise nature of the “inconsistency” is understood and considered against the case as a whole – see: ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [40] to [45] (Griffiths, Mortimer and Steward JJ).

Consideration

69    In the present case, there was no “inconsistency” in the sense of the making of irreconcilable statements. Rather, there was a failure to mention two letters at a time the decision-maker, for reasons not fully exposed, considered they should have been mentioned.

70    The appellant’s statutory declaration was very brief. It comprised seven paragraphs. It was in that short document that the appellant had stated:

In August 2013, my family found threat letter saying that ‘death is coming even after a while’.

71    Leaving aside the “threat letters”, the Authority accepted everything the appellant had claimed. Apart from the timing issue, there was no suggestion that the Authority was in the slightest concerned about the appellant’s credibility. It did not consider his claims untruthful or exaggerated in any way.

72    The Authority made no express credibility finding. However, its reasoning involved two implicit conclusions:

(1)    the appellant was truthful about the entirety of his account of what had occurred and the threats that were made to him, including the threatening phone calls which precipitated his departure from Iraq, leaving his wife and two children behind; and

(2)    he lied about his family subsequently receiving threat letters in Iraq.

73    The second implicit conclusion was based solely on the appellant’s failure to mention two of the three letters in the statutory declaration. As mentioned, that failure could only be criticised if:

(1)    the appellant claimed or accepted that he knew about the letters dated 22 February 2013 and 8 September 2014 at the time his statutory declaration was made; or

(2)    the Authority reasoned or assumed that, had such letters truly existed, the appellant would have known about them at that time.

74    Which of those two alternatives applied matters to an assessment of credibility or reliability.

75    The material before this Court did not suggest that the appellant claimed that he knew about the letters dated 22 February 2013 and 8 September 2014 at the time he made his statutory declaration. Accordingly, it is more likely that the Authority reasoned that, if those two letters had in fact been received by the appellant’s family, the appellant would have known about them at the time of his statutory declaration.

76    The Authority’s reasons do not reveal:

(1)    why it concluded or assumed that the appellant would have known about the letters dated 22 February 2013 and 8 September 2014 at the time he made his statutory declaration if those letters had in fact been received by his family in Iraq;

(2)    whether any inquiry had been made of the appellant at the PV interview as to why the letters had not been mentioned in his statutory declaration or whether any explanation had been given by the appellant whether or not such an inquiry had been made; or

(3)    why the failure to mention the two letters was so significant in the context of the case as a whole, particularly when balanced against the apparent plausibility of threat letters having been received given the history of events, including threatening phone calls, which had been accepted as truthful.

77    In relation to (1), the Authority’s reasons for concluding or assuming that the appellant would have known about the two letters if they had existed at the time of the statutory declaration affect what weight the Authority should give to the adverse conclusion reached, namely that the two letters were not genuine. Like the drawing of inferences from primary facts, some conclusions are more certain than others. Without understanding the basis for a conclusion (or an assumption or inference) it is difficult to assess what weight should be given to it. Exposing the primary facts and inferences drawn from them and the reasoning process for reaching a conclusion focusses the decision-maker’s mind on, for example, whether there is a proper basis for the conclusion or whether it is in the nature of speculation or whether it is a conclusion which leaves room for doubt and, if so, how much doubt. The weight to be attributed to an adverse credibility finding resulting from a more doubtful conclusion is – all other things being equal – less than an adverse credibility finding made on the basis of a conclusion which follows irresistibly from primary facts.

78    In relation to (2), if no inquiry had been made or explanation given as to why the two letters had not been mentioned in the appellant’s statutory declaration, that fact might also affect the weight the Authority would give in its “review” to the adverse conclusion it drew from the failure to mention the two letters in the statutory declaration. It might be recognised by the Authority that, if the appellant had been asked for or given an explanation at the PV interview, he may have provided a satisfactory answer. This is not a case where it is obvious that no satisfactory explanation could have been given. In this regard, it is relevant to note that, unlike the Authority, the delegate had not apparently been concerned about the appellant’s failure to mention the two letters in the statutory declaration. This lack of concern might explain why no inquiry was made by the delegate at the PV interview (assuming that to be the case) or why the appellant did not proffer an explanation. I interpolate that:

(1)    it was, accordingly, not surprising that the timing issue which caused the Authority concern was not raised in the written submissions made to the Authority on behalf of the appellant;

(2)    if no inquiry had been made at the PV interview, that fact might also inform the Authority’s view as to whether to get “new information” under s 473DC.

79    The matters in (1) and (2) thus affect the reliability or certainty of the Authority’s conclusion that the letters were not genuine, a conclusion based solely on a failure to mention the two letters earlier. Those matters are also relevant to the issue raised at (3) above, namely how the failure to mention the letters earlier should be treated in the context of the case as a whole, including the facts which suggested such letters may well have been received.

80    As to (3), an assessment of the genuineness of the two letters had to be undertaken by reference to all of the relevant facts, not by reference purely to an inadequately explained conclusion that two of the letters should have been mentioned by the appellant earlier than at the PV interview.

81    A number of circumstances which were accepted by the Authority suggested that it was perfectly likely that threat letters would have been received. The Authority accepted that the incident in the taxi occurred as described by the appellant. The appellant’s claim about the incident in the taxi was supported by a detailed contemporaneous incident report prepared by the Department of Police which was consistent with the appellant’s subsequent reports about what occurred that day. The Authority accepted that the appellant was told he would have to join the AAH before his apology would be accepted. The Authority accepted that the appellant received two threatening telephone calls from the AAH after the incident in February 2013 and shortly before he fled Iraq. The first threat letter was dated 22 February 2013, not long after the second threatening phone call, but after the applicant had fled, leaving his wife and two children behind.

82    There was no consideration apparently given to the consistency between the events which were accepted as truthful and the existence of the “threat letters”.

83    For example, the Authority did not mention, and I conclude did not give real consideration to, the contemporaneity between the first threat letter (22 February 2013) and the telephone calls which it had accepted occurred only a little while earlier. The contemporaneity between the first threat letter and the telephone threats (and the consistency between them and the appellant’s account more generally) was obviously probative of whether it was likely that the first letter had been received. It would be open to infer, for example, that letters were sent once the appellant had left Iraq because further telephone or other contact had failed.

84    That “threat letters” might be received in light of the accepted history of the appellant’s experiences was not suggested to be inherently implausible. The Authority did not suggest there to be anything artificial or inherently implausible about the letters themselves or the content of them. It was not suggested that the sending of threat letters was an unusual occurrence or that it was not supported by country information.

85    There was no consideration by the Authority of the tension between the appellant being honest and reliable in relation to everything which had occurred, including receiving threatening telephone calls whilst he was in Iraq, but to have lied about his family in Iraq receiving threat letters directed to the appellant after he had left. It was not suggested that the threat letters were perceived by the appellant to be especially important to his claims such that he was prepared to lie about that one aspect of his case but otherwise give a truthful and reliable account of the relevant events. The primary focus of the short statutory declaration was on the account of what had occurred on the day of the taxi trip. The statutory declaration only descended into detail when recounting those events.

86    Rather than engaging in such consideration, the Authority simply stated that the two threat letters produced at the PV interview had not been mentioned in the statutory declaration and concluded that they were, for that reason alone, not genuine. That conclusion then led to the conclusion that the appellant’s family had not received any of the three “threat letters”. The Authority did not expose why it concluded that the appellant should be taken to have been aware at the time of his statutory declaration that his family in Iraq had received the letters dated 22 February 2013 and 8 September 2014.

87    It might be said that the Authority was aware of the matters referred to at [81] to [84] above. However, there is a distinction between being aware of facts and giving those facts appropriate consideration in relation to a given issue: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [58] (Sackville J); NAJT v Minister for Immigration and Multicultural & Indigenous Affairs (2005) 147 FCR 51 at [212] (per Madgwick J with whom Conti J essentially agreed).

88    The Authority did not engage in a process of weighing any of the matters which suggested the threat letters might be genuine against its superficially explained conclusion that the letters dated 22 February 2013 and 8 September 2014 should have been referred to in the appellant’s statutory declaration if they had in fact been received by the appellant’s family in Iraq.

89    The consequence of failing to engage in such a process is that the Authority did not undertake a “review” of the kind required by Part 7AA. It may be accepted that the weighing and evaluation in a particular case is a matter for the decision-maker, but a failure by a decision-maker to undertake, in a real way, the task of weighing and evaluating clearly relevant matters is a failure properly to exercise the jurisdiction to review.

90    In his further written submissions, the Minister referred to the decision of the Full Court of this Court in Singh v Minister for Home Affairs [2019] FCAFC 3 at [34] (Reeves, O’Callaghan and Thawley JJ) and submitted that the obligation to give proper, genuine and realistic consideration was an obligation to give consideration to:

    a “substantial, clearly articulated argument relying upon established facts”;

    a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review”; or

    a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review”.

91    As the Full Court made clear in Singh at [34], those three matters are examples of matters to which a decision-maker must give real consideration. That to which a decision-maker must give real consideration depends upon the particular facts of each case. The principle is concerned with whether the jurisdiction reposed in the decision-maker is in fact exercised and exercised in a way which is authorised by the statute. Here, the Authority had to conduct its review “by considering the review material” provided to it. The jurisdiction to conduct a review under Part 7AA is not properly exercised simply by identifying one matter which tells against a particular conclusion and failing to give real consideration to the other matters which tell in favour of that conclusion.

92    Having concluded that the Authority did not conduct a “review” of the kind contemplated, it is not necessary to reach a conclusion as to whether the Authority’s rejection of the appellant’s case concerning the threat letters on the sole basis of his failure to mention two of them earlier than he did, without any apparent consideration of the matters supporting the likelihood of such threat letters having been received in the context of the appellant’s case a whole, was sufficiently arbitrary to warrant the decision being classified as legally unreasonable in the sense described in cases such as Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408.

Ground 3

93    Ground 3 in the appellant’s notice of appeal was listed as the second-numbered “Ground 2”. It related to the Authority’s findings at A[12] and A[13], specifically the Authority’s conclusions that “Shias in Shia-dominated provinces of southern Iraq are at a low risk of generalised violence” and that:

[O]n the basis of the referred information I conclude that [violent crime] is not at a level that would give rise to a real chance that the applicant would face serious harm, should he return. Nor am I satisfied that the applicant faces a real chance of serious harm from sectarian violence.

94    The appellant submitted that the Authority’s finding involved a misapplication of the real chance test, because a “low risk” was sufficient for there to be a “real chance” of harm.

95    The Authority did not misapply the real chance test. As correctly pointed out by the primary judge, the Authority made its findings after considering the country information in some detail. The primary judge noted that “[i]t was after that assessment of the further information that the Authority came to the view that there was no real chance the applicant would face serious harm should he return on the basis of the level of general violence”: J[24].

96    The Authority’s finding that there was no real chance of harm was informed, in part, by the fact that there was a “low risk of generalised violence”. However, the Authority did not misapply or supplant the real chance test with some other test. The Authority did not reason solely from the fact that there was a low risk of violence to the conclusion that there was no real chance of violence. The Authority’s reasons cannot fairly be read in that way.

97    This ground must be dismissed.

Ground 4

98    Ground 4 in the appellant’s notice of appeal was numbered “Ground 3”. In Ground 4, the appellant submitted that the Authority failed to consider the reasonably foreseeable future and thus committed jurisdictional error.

99    The appellant submitted to the Federal Circuit Court that, because the Authority did not expressly refer to the “reasonably foreseeable future” in making its finding at A[13], it may be inferred that the Authority failed to turn its mind to the reasonably foreseeable future in making that finding.

100    It is well established that the Authority is required to assess an applicant’s claims to have a well-founded fear of persecution by reference to the reasonably foreseeable future and not merely the immediate future or the present situation: CDW18 v Minister for Home Affairs [2019] FCA 270 at [14] (Thawley J), citing AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [26] (Perry J); Minister for Immigration and Citizenship v SZQKB (2012) 133 ALD 495 at [41] (Yates J); SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [2] (Allsop J).

101    The primary judge correctly pointed out that “the mere lack of reference to the reasonably foreseeable future does not mean that the Authority closed its mind from considering what might happen to the applicant at a time immediately after he arrives in Iraq”: J[27]. As said in CDW18 at [20]:

It is not the use of a phrase which determines whether there was error. The question is whether, as a matter of fact, the Authority failed to consider the reasonably foreseeable future in assessing, by reference to the claims made by the applicant before the Authority, whether there was a well-founded fear of persecution. The inverse proposition is also true: the mere use of the phrase “reasonably foreseeable future” does not immunise a decision-maker from falling into error if, in fact, the decision-maker fails to consider that issue: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [3] (Allsop J); AIE15 at [33].

102    The Authority’s reasons show consideration of the appellant’s claims, including with respect to possible future harm. The Authority’s reasons at A[11], [12], [13] and [14] consider possible future harm, and demonstrate that the Authority did apply itself to the question of what might reasonably occur in the future so far as it was able on the basis of the material before it: CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60] (Mortimer J).

103    Although the Authority’s reasoning was undertaken with reference to past events, reference to past events is relevant in assessing what may occur in the future, as noted by the High Court in Guo at 575:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

See also Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33]-[35]; CDW18 at [15].

104    The Authority addressed the security situation in Iraq over a period of time. It also considered the passage of time from when the threats were made against the appellant in early 2013 to the point at which the relevant decision was made, and beyond, to the appellant’s possible return to Iraq. Although the words “reasonably foreseeable future” were not used in the Authority’s reasons, it is tolerably clear that the Authority used past events in Iraq, and direct reference to the appellant’s personal experiences, to assess what was likely to occur in the reasonably foreseeable future. Ground 4 must also therefore be rejected.

Conclusion

105    For the reasons identified in relation to Ground 2 above, the Authority failed properly to exercise its jurisdiction by failing to conduct the “review” which the Act required. The conclusion that two of the three threat letters were not genuine and that none of the three letters had been received by the appellant’s family in Iraq was material to the result because those conclusions were important and causally relevant to the Authority’s conclusion that there was no ongoing interest in the appellant on the part of the AAH.

106    The appeal should be allowed and in place of the orders made by the Federal Circuit Court there should be an order quashing the decision of the Authority and remitting the matter to it for determination according to law. The appellant has succeeded in an argument which had not been put to the Federal Circuit Court. My provisional view is that it is sufficient in those circumstances simply to set aside the costs order against the appellant which was made by that Court. Any application with respect to costs of the proceedings in the Federal Circuit Court must be made within seven days.

Associate:

Dated:    25 July 2019