FEDERAL COURT OF AUSTRALIA

CRS18 v Minister for Home Affairs [2019] FCA 2019

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal filed 22 February 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

INTRODUCTION

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 1 February 2019: CRS18 v Minister for Home Affairs & Anor [2019] FCCA 280 (CRS18). The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) affirming a decision of a delegate of the Minister for Home Affairs, the first respondent, to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV).

FACTUAL BACKGROUND

2    The appellant was born in Iran on 1 July 1978 soon after her parents were expelled from Iraq. In 2004, the appellant was married. In 2009, her husband left Iran and came to Australia. He is now an Australian citizen. Shortly thereafter, while she was still in Iran, the appellant applied for an Australian Refugee and Humanitarian (Class XB) (Subclass 202 – Split Family) visa. On 5 May 2015, a delegate of the Minister rejected that application.

3    In the meantime, the appellant followed the same course as her husband. In 2012, she and her brother also left Iran and came to Australia. On 5 April 2016, the appellant filed the visa application which is the subject of the present appeal. The claims she made in that application were conveniently summarised in the Authority’s decision as follows (at [7]):

•    The [appellant’s] parents are Faili Kurds born in Iraq who were expelled from Iraq before the [appellant] was born. In Iran they are stateless and have no documentation. The [appellant’s] father was scared he would be arrested or killed in Iran by the authorities and as a consequence her parents did not register as refugees and remained living there as unregistered, undocumented stateless Faili Kurds.

•    The [appellant] was born in Iran and is a Faili Kurd and because of her parents’ stateless status she is also stateless and has no documents from Iran or Iraq.

•    The [appellant] has no knowledge of the background of her grandparents.

•    The [appellant] identifies as a Shia Muslim but does not practise; the family had to tell people in Iran they are Shia to avoid being killed.

•    Because of their status the family could not access services such as education and health care and her father was too scared to register to obtain such services. The [appellant] did not attend school and her only learning was reading books at home; her father paid for her brothers to be privately tutored. Her father paid someone to obtain any medications when these were required.

•    The [appellant] married a stateless Faili Kurd in Iran in 2004. Her husband came to Australia in 2009 and is now an Australian citizen.

•    The [appellant] and her brother decided to leave Iran and her husband made arrangements with a people smuggler to obtain a fraudulent passport and to pay bribes at the Teheran [sic – Tehran] airport to facilitate her departure. She left Iran around October 2012 and travelled initially to Dubai and from there to Indonesia and onto Australia. The passport was taken from her in Indonesia.

•    Since being in Australia the [appellant] has accompanied her husband and brother to a church and has been attending for two years. She does not understand English so does not know about Christianity. She has made friends at the church and enjoys socialising with them.

•    The [appellant] fears harm from the authorities in Iran as an unregistered, undocumented stateless Faili Kurd and for being a failed asylum seeker.

4    A delegate of the Minister refused the appellant’s application on 28 July 2017. As the delegate’s decision was a fast track reviewable decision, it was referred to the Authority for review. On 1 May 2018, the Authority affirmed the delegate’s decision.

5    On 23 May 2018, the appellant filed an application for review of that decision in the Federal Circuit Court. The Federal Circuit Court dismissed that application on 1 February 2019.

THE AUTHORITY’S DECISION

6    The primary judge provided the following summary of the Authority’s decision (CRS18 at [34]–[43]):

34.    The [Authority] went through her claims very thoroughly. The [Authority] ended up having quite some doubts as to her claim to be stateless. In the reasons, the [Authority] pointed to country information that did not support the claim of the [appellant] that there was widespread arrests of Faili Kurds who were attempting to register with the Iranian authorities. The [Authority] had difficulty accepting her claim that her father’s fear of the authorities outweighed his concern for the education and welfare of his children.

35.    There were a number of inconsistencies and implausibilities which the [Authority] conceded were, in themselves minor, but when they were added altogether, it gave the [Authority] a very firm impression that her evidence was inconsistent and evasive.

36.    The [Authority] referred to country information as to how so-called stateless Kurds were treated in Iran, which was somewhat different to what the [appellant] had described. Ultimately, the [Authority] was not satisfied that the [appellant] was either undocumented or unregistered, and stateless.

37.    The [Authority] also had concerns about her account of her departure from Iran. It noted that she claimed that her husband paid a people smuggler about $5,000 AUD. The country information indicated that a required bribe to secure departure through the airport would be significantly greater than $5,000 AUD.

38.    In the end, the [Authority] was not satisfied that the [appellant] was undocumented, unregistered or stateless and, based on her own evidence, that neither she nor her family members had ever experienced harm in Iran because they were Faili Kurds. The [Authority], therefore, was not satisfied that she would face a real chance of harm in Iran as a Faili Kurd.

39.    As to her claims to have converted to Christianity in Australia, the [Authority] considered the claims about her attendance at church in Australia and her evidence that she did not know much about Christianity as she did not speak English. The [Authority] accepted that the [appellant] made friends with members of a Christian church in Australia, but was not satisfied that the [appellant] had converted to Christianity.

40.    The [Authority] looked at country information as to the [appellant’s] situation. It considered that she did not practise Islam and she had really no knowledge of Christianity, had not adopted Christianity. Therefore, the [Authority] was not satisfied she would be viewed as an apostate if she returned to Iran.

41.    The [Authority] looked at what would happen to her if she returned to Iran as a failed asylum seeker. The country information was that voluntary returnees face harm on return, and there was nothing that would indicate that the [appellant’s] profile would have been one that would be of interest to the authorities.

42.    The [Authority] accepted that she may be questioned because of her travel document but did not accept that this would result in adverse interest or that she would be harmed during questioning upon her return.

43.    Therefore, when one looked at that, there was no basis upon which the [appellant] met the criteria for refugee, nor the complementary protection criteria. Therefore, the [Authority] affirmed the decision.

(Errors in original)

THE FEDERAL CIRCUIT COURT’S DECISION

7    The appellant was represented before the Federal Circuit Court. Her grounds of review, with particulars, were set out in the primary judge’s decision as follows (CRS18 at [48], [59]–[64]):

48.    The application ground one is worded this way:

The [appellant] was not provided with procedural fairness under s 473DA of the Migration Act 1958 (“The Act”), as it was not provided with all of the information in the Secretary’s control and relevant to the review under s 473CB(1)(c) of the Act.

…

59.    … The second ground is:

The [Authority] has not taken a relevant consideration into account.

60.    The particulars given were that the [appellant’s] husband lodged an application for a visa which was refused. The circumstances and evidence pertaining to this application in the accompanying file were not taken into account by the [Authority].

61.    The third ground is that:

The [Authority] has not taken a relevant consideration into account and has made a decision that is illogical and irrational.

62.    The particulars given there are that:

The [Authority] should have taken into account that the [appellant’s] Husband was granted Protection having successfully left Iran on a false passport through the Tehran International Airport and that the [appellant] adopted the same methodology and also left on a false passport through the Tehran International Airport travelling the same route as her Husband. It was both logical and rational for the [appellant] to undertake the same process and journey as her Husband, in order to escape Iran.

63.    The fourth ground is:

The [Authority] has not taken a relevant consideration into account.

64.    The particulars given are:

The [Authority] has not considered taken the circumstances of the [appellant’s] husband’s circumstances into account, given that her husband came into Australia in 2009 and sought protection, which was granted to him, and he is now an Australian citizen. The [appellant] must have been subject to the same persecution as the husband.

(Errors in original)

8    With respect to ground of review 1, the primary judge found (CRS18 at [50]) that “the gravamen of the complaint is … that the Secretary did not provide the [Authority] with all of the relevant material” and so the question was whether the material contained in the file was “significant and material to the outcome of the review” (CRS18 at [54]). The primary judge did not accept the appellant’s submissions regarding this ground and concluded (CRS18 at [58]) that “[w]hat is contained in the file is simply someone else’s opinion, and that opinion is simply that. It is not a matter of fact”.

9    With respect to grounds of review 2, 3 and 4, which the primary judge considered should be dealt with together because they suffered “from exactly the same fatal flaw”, namely a “conflating of what has occurred”, the primary judge concluded that “the information in those files was not significant or material to the outcome of the review, as that term was described by … Judge Driver in AKK17” and “[t]hat being the case, [his Honour was] not persuaded that there [had] been any jurisdictional error committed by the [Authority] in [its] decision” (CRS18 at [78]–[79]).

THE GROUNDS OF APPEAL

10    The appellant did not seek to pursue grounds of appeal 1, 2, 6, 8 and 9 in the notice of appeal which she filed in this Court. The remaining four grounds of appeal are as follows:

…

3.    The learned Federal Circuit Court judge erred by failing to appreciate or find that the breach of s473CB of the Migration Act by the Secretary meant that the [Authority] failed to conduct a proper review in accordance with Part 7AA of the Migration Act 1958.

4.    The learned Federal Circuit Court judge erred in not finding that the [Authority] failed to properly assess whether the appellant was stateless.

5.    The learned Federal Circuit Court judge erred in not finding that the [Authority] generally failed to conduct a proper review in accordance with Part 7AA of the Migration Act 1958.

…

7.    The learned Federal Circuit Court judge wrongly applied and/or wrongly interpreted the concepts of unreasonableness as applicable to the [Authority] in its decision.

(Errors in original)

11    The Minister complained that grounds of appeal 4, 5 and 7 were being raised for the first time on appeal to this Court. He contended that they should not be considered without the leave of the Court. The appellant responded that ground of appeal 5 broadly challenged the integrity of the review undertaken by the Authority and that grounds of appeal 4 and 7 were “intertwined” with that ground. I reject that explanation. Grounds of appeal 4 and 7 raise what may be described as the citizenship issue. It is apparent from the grounds of review before the primary judge (set out at [7] above) that the appellant did not raise an issue of that kind before the Federal Circuit Court. The appellant therefore requires leave before raising those grounds for the first time in this appeal. To obtain that leave, she will need to provide some explanation as to why those grounds were not raised before the Federal Circuit Court and to show that they have merit (see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48]). The appellant did not provide the former explanation and, as will emerge later in these reasons, I do not consider there is any merit in these grounds of appeal. Accordingly, leave is refused to raise those grounds for the first time in this appeal.

12    The Minister also complained that, by seeking to rely on the country information that was before the Authority, the appellant was seeking to rely on new evidence that was not before the Federal Circuit Court. I reject that contention. While the primary judge did not consider it was necessary to rely on that information in his judgment, it is apparent that that information was before the Authority because it specifically relied upon it in its decision. It follows that that material is not new evidence and it is available to be considered by this Court.

THE CONTENTIONS

The appellant

13    Under ground 3, the appellant alleged that the primary judge erred by failing to appreciate, or failing to find, that the Secretary’s breach of s 473CB of the Migration Act 1958 (Cth) (the Act) meant that the Authority failed to conduct a proper review in accordance with Part 7AA of the Act. Specifically, the appellant alleged that the Secretary had possession of her earlier file relating to her application for a protection visa and her husband’s file relating to his protection visa application and neither file was provided to the Authority.

14    The appellant submitted that her husband’s file was relevant to the Authority’s review as it provided “evidence of one successful modus operandi for escaping from Iran on a false passport”. The appellant submitted that similar considerations related to her own file and that, had the Authority had access to it, it “may not have made the findings about the exit pathway and statelessness”. Finally on this ground, the appellant contended that, because it did not have access to those files, the Authority did not conduct a proper review and, for his part, the primary judge erred in finding that those files were merely opinions.

15    On the footing that they are interrelated, the appellant dealt with grounds 4 and 7 together. With respect to ground 7, the appellant contended that legal unreasonableness can manifest in a number of ways, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li). She contended that the Authority’s finding that she is an Iranian citizen fell into this category. She claimed that this finding appeared to stem from its observations that her grandparents may have been Iranian citizens. Yet, so she claimed, the Authority had not found that her parents were Iranian citizens. Accordingly, she contended that this finding was “purely speculation”. Under those grounds, she also contended that the Authority’s rejection as unbelievable her claim that she paid a bribe of $5,000 to leave Iran was illogical given that the Danish report referred to by the Authority set the “high” threshold for such bribes at €8,000 to €10,000.

16    As for ground 5, the appellant contended that the primary judge had erred in not finding that the Authority generally failed to conduct a proper review in accordance with Part 7AA of the Act. Specifically, citing Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 (Chetcuti), she contended that the Authority did not conduct a proper review because it failed “to grapple with the fact that her husband had used the exact pathway before” to leave Iran using a fraudulent passport. She submitted that the Authority took “an idiosyncratic view as to how a refugee might escape a country” or, alternatively, that the Authority had operated on a “gut feeling” and thus had fallen into the kind of error identified in WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74.

The Minister

17    With respect to ground 3, the Minister submitted that the appellant’s contentions were misconceived as s 473CB(1)(c) focused on what the Secretary considered to be relevant and, as such, the question of relevance had to be determined subjectively, citing CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 (CQR17). On that basis, the Minister submitted that there were essentially two possibilities for jurisdictional error to arise: that the Secretary had completely failed to consider the relevance of documents in his possession or control; or that the Secretary had considered the relevance of those documents and had unreasonably concluded that they were not relevant. Since the appellant had not submitted that the Secretary had completely failed to consider the relevance of the two files in question, he contended she must establish the latter.

18    Dealing with the two files in turn, the Minister submitted that, with respect to the husband’s file, it was open to a reasonable decision-maker to conclude that the file, as a whole, was not relevant, or to come to the conclusion that the findings of another decision-maker on the husband’s application were not relevant. Further, the Minister submitted that there was very little factual nexus between the appellant’s claims and those of her husband. In this respect, the Minister instanced the significant difference in timing between the appellant’s departure in 2012 and that of her husband in 2009. Additionally, the Minister contended that any factual assertions recorded in the appellant’s husband’s file could not be tested by the delegate or the Authority as he did not give evidence in connection with the appellant’s application. In respect of the appellant’s own file, the Minister submitted that a reasonable decision-maker could conclude that any previous statements made by the appellant that were consistent with her current claims were of little relevance.

19    Finally, the Minister contended that, even if the Secretary fell into error in the discharge of his duty under s 473CB(1)(c), that error could not be characterised as a material error as the appellant had not identified “any reasonable basis to think the result could realistically have been different if the two files were before the [Authority]”. The Minister submitted that this was particularly so given that the Authority would have to be satisfied that the two files met the “new information” requirements imposed by s 473DD of the Act before it could consider them.

20    In respect of grounds 4 and 7, the Minister contended that the appellant’s submission that the Authority’s finding was based on pure speculation could not be sustained because there was clear evidence to support it, namely the fact that the appellant had left Iran using a genuine passport which could only have been issued to an Iranian citizen. Further, the Minister submitted that, even if there was no evidence to support this finding, the error did not pertain to a sufficiently critical finding so as to result in jurisdictional error. Specifically, the Minister submitted that the appellant’s primary claim was that she would be harmed by the authorities in Iran because she was an unregistered and undocumented Faili Kurd and the Authority had rejected that claim. With respect to the appellant’s complaint regarding the amount of the bribe she paid, the Minister submitted that this was a new complaint and, even if it were to be considered, the Authority’s finding was open to it and, even if that were not so, the asserted illogicality in the context of the Authority’s reasons as a whole was too insignificant to give rise to a jurisdictional error.

21    Finally, the Minister contended that ground 5 fell into the category of “an impermissible attempt to cavil with the merits of an administrative decision” (citing King v Minister for Immigration and Border Protection [2014] FCA 766 and SZRBA v Minister for Immigration and Border Protection (2014) 314 ALR 146; [2014] FCAFC 81).

22    In oral reply submissions, the appellant returned to the issue of compliance with s 473CB and submitted that the evidence showed that the Department had complied with that requirement rather than the Secretary. Further, she contended the following factors were sufficient to establish that the Secretary did not consider the relevance of the two files: the absence of a concession that the files were not provided; the evidence that the Department had provided the Authority with the documents rather than the Secretary; and the absence of a document checklist such as that referred to in CQR17.

GROUND OF APPEAL 3 – SECRETARY’S OBLIGATIONS UNDER SECTION 473CB(1)(C)

23    Section 473CB(1)(c) of the Act provides:

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

…

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review …

24    The principles bearing on the question whether a breach of this section can constitute jurisdictional error were conveniently summarised in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (cited by Jagot J in CQR17 at [28]) as follows (at [41]–[42]):

41    As a matter of principle, it was at least arguable that a breach of s 473CB(1)(c) by the Secretary could, in an appropriate case, have the consequence that the Authority’s decision was affected by jurisdictional error:

(1)    Section 473CB(1)(c) requires the Secretary to form a view as to which documents are relevant to the review to be conducted by the Authority – see, in a different context: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [64].

(2)    The view so formed is the subjective view of the Secretary as to relevance: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [73] (Griffiths J).

(3)    The Secretary’s view as to relevance must be formed in a reasonable manner and on a correct understanding of the law – see, albeit in a different context: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890 at [57]; NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 551 at [41] (Tamberlin J).

(4)    An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).

(5)    A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It [is] not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process – cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].

42    In amplification of the last proposition:

(1)    If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.

(2)    A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law – see: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.

(3)    The reasoning in cases such as WAGP at [62]-[64], in relation to a breach of s 418(3) (found in Part 7), does not easily translate to a breach of s 473CB(1) in light of the quite different scheme contemplated by Part 7AA; see also: SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 and BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. A Part 7 review is triggered by the making of a valid application by the applicant, not by the receipt of material under s 418(3). The review body is not prevented from receiving new material. By contrast, under Part 7AA, the review is automatic: the Secretary “must refer a fast track reviewable decision” to the Authority: s 473CA. Subject to the terms of Part 7AA, the Authority must (s 473CC(1)) conduct its review “by considering the review material” and “without accepting or requesting new information” or “interviewing the referred applicant”: s 473DB(1). Part 7AA does not contemplate the Authority affording procedural fairness in a manner equivalent to Part 7. The s 473CB(1) “review material” is, accordingly, a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.

(Bold in original)

25    Among other things, these principles make it clear that a critical consideration under s 473CB(1)(c) is the Secretary’s subjective view as to the relevance of the material in question. I therefore reject the appellant’s contention that this question of relevance is assessed objectively.

26    The appellant’s complaint under this ground of appeal relates to two files that both parties seem to accept were in the possession or control of the Secretary. They are the file relating to the appellant’s husband’s successful visa application and the appellant’s file concerning her earlier unsuccessful visa application in 2010.

27    To establish a breach of s 473CB(1)(c), the appellant needs to establish that those two files were relevant to the Authority’s review and that the Secretary did not give them to the Authority for the purposes of that review. Both of these matters are questions of fact upon which the appellant bears the onus (see CQR17 at [30]).

28    On the latter question, it is worth noting that the present appeal is materially different from CQR17. In that appeal, the Minister conceded that the documents in issue were not provided to the Authority (see CQR17 at [9]). In this matter, no such concession has been made and, although the Authority’s decision (at [3]) refers to “the material given by the Secretary under s.473CB of the [Act]”, there is no evidence as to what that material was. Furthermore, there is no checklist in this matter of the kind that was amongst the materials in CQR17 (see CQR17 at [15]–[18]).

29    Nonetheless, having regard to the matters illuminated in CQR17 at [31]–[33], I am prepared to accept that the appellant need only adduce “slight” evidence to discharge her onus on this question.

30    To attempt to meet this prerequisite, the appellant pointed to the Authority’s letter to her dated 3 August 2017, which referred to the Department, not the Secretary, having provided the necessary documents to the Authority and which stated that it (the Department) had provided the Authority:

… with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The [Authority] will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

31    The Minister submitted that I should infer from the contents of this letter that the Secretary duly considered what material was required to be provided to the Authority and then instructed the Department to provide it.

32    Given the statement in the Authority’s decision referred to above, I consider the position on this aspect is more likely to be that stated by the Minister. But even if that were not so, while it is clear from that statement that some material was provided to it by the Secretary, this letter does nothing to establish either way what that material was.

33    Perhaps the strongest argument for the appellant on this question came from the Minister. He pointed to the obligation imposed on the Authority under s 473EA of the Act to make a written statement that sets out its decision and the reasons for it. Having regard to that provision, he submitted that, since there was no mention of the files in contention in the Authority’s reasons, it could be inferred that the Secretary had concluded that the files were not relevant and therefore had not provided them to the Authority. It would appear from the appellant’s submissions that she adopted this approach. Accordingly, I consider it is appropriate to draw the inference that the Secretary did not provide the two files in question to the Authority. That brings me to the question whether the appellant has discharged her onus on the first matter mentioned above, namely whether those two files in question were relevant to the Authority’s review (see at [27] above).

34    On that question, the Minister contended that there were the two possible ways in which the Secretary could have committed a breach of s 473CB(1)(c) mentioned above (see at [17]). While some of the matters mentioned in her reply submissions (see at [22] above), might suggest otherwise, on balance, the appellant would appear to have contended for the first, namely that the Secretary did turn his mind to the files and unreasonably decided that they were not relevant to the Authority’s review. As for the unreasonableness component, the appellant cited Hayne, Kiefel and Bell JJ in Li (at [72] and [76]) as follows:

72    … Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

    …

76    … Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

35    The Minister’s approach to this question was perhaps more specific. Citing CQR17 at [37]–[41], he submitted that, to establish unreasonableness, the appellant needed to show that there was no evident and intelligible justification for the Secretary to have concluded that the files were not relevant. He also submitted that question fell to be assessed at the time the materials were referred to the Authority (citing CQR17 at [39]). He emphasised that, in circumstances where the Secretary was not required to give reasons for his decision, establishing unreasonableness was quite difficult.

36    To discharge her onus on this aspect, the appellant claimed the material in the two files was relevant because her husband and herself were both from the same ethnic group and had broadly similar claims. She further claimed that she used the same modus operandi to leave Iran as her husband had by using a false passport and paying a bribe to depart through Tehran airport. Finally, she claimed that she consistently made the same claims in her first application as in the present application.

37    The Secretary was not required to provide reasons for his decision about the relevance of the materials he provided to the Authority. There are therefore no reasons to indicate why he formed the subjective view that the two files in question were not relevant to the appellant’s review. This absence of reasons, in my view, makes it difficult to apply the “evident and intelligible justification” approach advanced by the Minister in this matter (see Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 (Eden) at [64]). That aside, however, there is also nothing in the matters to which the appellant has pointed which, in my view, demonstrates that the Secretary did not reasonably conclude that the files were not relevant to the appellant’s review. As the Minister pointed out in his written submissions, two people with broadly similar backgrounds may have different risk profiles dependent upon their individual facts and circumstances. As to the appellant’s claims to relevance based upon her husband and her having used the same modus operandi to leave Iran, the Minister pointed to the three year time difference between their departures and the different country information that was likely to have been available at those two points in time, along with the different security and other circumstances that were likely to have prevailed at Tehran airport at those times. On this modus operandi issue, it is also important to note that the appellant’s counsel was not able to point to any evidence that the appellant had made such a claim in her departmental interview or before the delegate. Finally on this aspect, I consider it is pertinent to note that the husband did not give evidence in support of the appellant’s claim.

38    As for the file relating to the appellant’s earlier visa application, the Minister pointed to the sparseness of the information contained in that file and the fact that the delegate in the present application had accepted that the appellant’s claims were consistent with her earlier claims to be undocumented and to be Kurdish.

39    Having regard to all of these factors, I do not consider that the appellant has discharged her onus to establish that the Secretary unreasonably assessed the two files in question to be irrelevant to her review before the Authority.

40    Finally, for completeness, I should add that, even if the appellant had discharged her onus to establish that the Secretary had acted unreasonably in assessing the relevance of the two files, because of the factors outlined above, I do not consider that she has discharged her onus to show that, assuming the Secretary had committed that breach, that “there [was] a realistic possibility that the [Authority’s] decision could have been different if it had taken [them] into account” (see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [48]).

41    For these reasons, I do not consider the primary judge committed an error in dismissing the equivalent ground of review before him. Accordingly, no appellable error is revealed by this ground of appeal.

GROUNDS OF APPEAL 4, 5 AND 7 – the CITIZENSHIP ISSUE

42    These grounds focus on the Authority’s conclusion that the appellant is an Iranian citizen. That finding was made in the penultimate sentence of [18] of the Authority’s reasons. The appellant contended that finding is legally unreasonable because it was not based on the materials before the Authority and was, therefore, entirely speculative. In response, the Minister said the reasoning and the materials relied upon to support that finding is apparent from the Authority’s reasons, particularly at [15] and [18].

43    As has already been mentioned above, the Full Court said in Eden (at [64]), where reasons are provided by a decision-maker, they are likely to provide the focus for the evaluation of the legal reasonableness of the decision. In that situation, the “evident and intelligible justification” approach is warranted.

44    Furthermore, the findings concerned must reflect a significant degree of lack of logic or rationality to constitute jurisdictional error. In this respect, the pertinent principles are outlined in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60], referring to Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] and [54]–[56]:

52    As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

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

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

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

See also, with respect to materiality, SZMTA at [48] and as to the caution necessary to avoid merits review, Eden at [103].

45    As the Minister has correctly observed, the “evident and intelligible justification” for the Authority’s finding concerning the appellant’s Iranian citizenship is contained in [15] and [18] of its reasons as follows:

15.    While I have accepted that the applicant is a Faili Kurd she has failed to satisfy me that she is an undocumented Faili Kurd who is not registered with the Iranian authorities. In considering her identity and status in Iran further, particularly her claim to be stateless, I have had regard to her account of her departure from Iran, and I find this casts doubt on her claim to be a stateless Faili Kurd. The IAA submission draws attention to country information cited in the delegate’s decision that demonstrates the possibility of using fraudulent documents to depart Iran if airport officials are bribed as the applicant claims is what happened in her case. Overall country information indicates that departure from Iran using a fraudulent passport would be difficult and that Iranian border control is rigorous. To obtain a genuinely issued passport identifying documentation is required and while counterfeit passports can be purchased on the black market the authorities are adept at identifying such documents. In its 2013 report the Danish Immigration Service provided detailed information on security measures at the international airport in Teheran [sic – Tehran] and overall most sources quoted reported strict and efficient security measures. While departure using a fraudulent passport was not entirely ruled out sources indicated the quality of the document would need to be high and bribes paid to officials to facilitate departure would be high, amounting to 10,000 USD or 8,000-10,000 Euros. Most sources indicated that the porous border to Turkey provided an easier and more established people-smuggler route. I am surprised that as the applicant and her brother claim to be undocumented their illegal departure was not arranged via the “easier” illegal route of the land border with Turkey, noting DFAT advice that many Iranians travel to Turkey and from there travel onwards using forged documents. I find the applicant’s willingness to undertake the risk of departing Iran using a fraudulent passport belies her claimed fear of the authorities, particularly her claim that her fear was such that she was not willing to approach the authorities for the lawful purpose of registering as a refugee and that all her life she rarely left the local area for fear of harm from the authorities. I also note she claims her husband made arrangements with a people smuggler for her departure the cost for which totalled approximately 5,000 AUD. This amount is substantially less than that cited in country information as the required bribe amount to secure departure through the airport with a fraudulent passport. Considered overall I do not accept the applicant’s account that she departed Iran using a fraudulently issued passport to be genuine.

…

18.    In the light of the implausibilities in her account of her circumstances and the reasons given for why her father did not register as a refugee, her claimed lack of knowledge of her family history regarding the origins of her grandparents, her ability to leave Iran using a passport and pass security at the international airport, and considered together with her apparent willingness not to tell the truth about matters such as her husband’s family circumstances, I do not accept that the applicant has provided a truthful account of her circumstances. While I accept that the applicant is a Faili Kurd, I am not satisfied that she is an undocumented Faili Kurd. Taking account of country information that indicates many Faili Kurds have re-availed themselves of Iranian citizenship and considered together with the above, I am satisfied that the applicant is an Iranian citizen. Consistent with this finding I am satisfied that the applicant departed Iran legally using her genuinely issued Iranian passport.

(Footnotes omitted)

46    The Authority’s ultimate finding in [15] is in the last sentence. The salient aspects of the reasoning upon which that finding is based are these. First, the country information cited in the delegate’s decision revealed that “departure from Iran using a fraudulent passport would be difficult and that Iranian border control is rigorous”. Secondly, in order to obtain a genuine passport, “identifying documentation is required and while counterfeit passports can be purchased on the black market the authorities are adept at identifying such documents”. Thirdly, the Danish report mentioned indicated that “strict and efficient security measures” were in place at Tehran airport. Fourthly, the porous border with Turkey provided an easier departure route. Fifthly, there was a contradiction between her claimed fear of the authorities and her willingness to confront the authorities at Tehran airport with a fraudulent passport. Sixthly and finally, the $5,000 bribe she claimed she paid was “substantially less than that cited in country information”.

47    As mentioned above, the ultimate finding in [18] is also contained in the last couple of sentences. Those findings are based on a number of factors highlighted earlier in that paragraph, including the “implausibilities” in her account, one of which related to her grandparents’ origins and another of which referred back to the findings in [15] about her departure from Iran “using a passport and pass[ing] security at the international airport”. These factors led to the finding that she is an Iranian citizen and that she “departed Iran legally using her genuinely issued Iranian passport”. While the Authority did not expressly link these two findings, the connection is clearly implicit. Indeed, the appellant’s counsel himself said in oral submissions that no country issues passports to non-citizens.

48    Having regard to these features of the Authority’s reasons, I do not consider the conclusion it came to with respect to the appellant’s Iranian citizenship involved speculation or was legally unreasonable. As the outline above reveals, the Authority explained, in some detail, what parts and aspects of the materials before it led it to that conclusion. I therefore consider it disclosed an “evident and intelligible justification” for its conclusion. The appellant may disagree with the many intermediate conclusions about which she complained, even strongly, but, read in context, I do not consider those conclusions involve speculation or are illogical or irrational. Viewed in this light, those criticisms must be rejected as an attempt at merits review of the Authority’s decision. In short, the appellant did not, in my view, meet the exacting standard necessary to discharge her onus to establish legal unreasonableness.

49    For these reasons, I do not consider these grounds of appeal have merit. That being so, I refuse leave to the appellant to raise them for the first time in this appeal.

CONCLUSION

50    For these reasons, none of the appellant’s grounds of appeal has merit. It follows that the appellant’s notice of appeal filed on 22 February 2019 must be dismissed with costs.

51    The orders will be:

1.    The appellant’s notice of appeal filed 22 February 2019 is dismissed.

2.    The appellant is to pay the first respondent’s costs to be taxed failing agreement.

Associate:    

Dated:    29 November 2019