FEDERAL COURT OF AUSTRALIA

AAV19 v Minister for Home Affairs [2020] FCA 287

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant be granted an extension of time to seek leave to appeal and be granted leave to appeal.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court made 4 March 2019 be set aside and in lieu thereof order that:

(a)    the orders of Registrar Morgan made on 7 February 2019 dismissing the application for judicial review of the decision of the Immigration Assessment Authority (IAA) be set aside; and

(b)    the First Respondent pay the Applicant’s costs of the reinstatement application heard on 4 March 2019.

4.    The application for judicial review of the IAA decision be remitted to the Federal Circuit Court, differently constituted.

5.    The First Respondent pay the Applicant’s costs of the application for an extension of time and leave to appeal before this Court.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant seeks an extension of time and leave to appeal an interlocutory order of the Federal Circuit Court of Australia made 4 March 2019 which dismissed his application for reinstatement of a proceeding in that Court. The applicant had sought judicial review of a decision of the Immigration Assessment Authority (Authority) made 3 December 2018 by which the Authority affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (Minister), not to grant the applicant a Safe Haven Enterprise Visa (visa).

2    The application for leave to appeal from the interlocutory orders made on 4 March 2019 was only out of time by four days, and the Minister consented to an extension of time. The dispute between the parties turns on whether the merits of the proposed appeal are such that it is appropriate to grant leave to appeal. For the reasons I explain below, I consider it to be reasonably arguable that the Authority’s decision is affected by jurisdictional error and that the primary judge erred in failing to so find and dismissing the reinstatement application. I have accordingly made orders granting leave to appeal and allowing the appeal.

3    The Court is grateful for the assistance provided by Ms Rachel Francois of counsel, who accepted a pro bono referral to represent the applicant in the proceeding. It is difficult for a layperson to understand what may constitute jurisdictional error, which in this case is compounded by the fact that the applicant has little ability to read or write in English and his English-speaking ability is limited. He could not have properly represented himself.

The factual and procedural background

4    The applicant is a citizen of Iraq of Shia Muslim faith who arrived in Australia on 16 July 2013 as an unauthorised maritime arrival. The Minister later exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the applicant to make a valid application for a specified visa, and he did so on 5 June 2017.

5    In his visa application the applicant claimed to fear harm if returned to Iraq for various reasons, only some of which are relevant to the proposed appeal.

6    In the claim which is central to the proposed appeal, the applicant claimed that he was a soldier in the Iraqi Army from 2007. He said that in 2012 he was stationed in Tikrit, where a large prison was situated. He claimed that on 22 September 2012 a large number of prisoners, a group which included convicted terrorists, escaped and commenced to riot and kill prison guards. The Army and police were called in and a fierce gun battle broke out with the prisoners who had become armed, including with heavy weapons. The riot (or battle) went from approximately 7:00 pm until 2:00 am the next day, and the applicant was shot in the leg.

7    In his Arrival and Induction Interview on 12 August 2013 (arrival interview) the applicant said that after his injury recovered at home, I infer in Basra, for three months and then returned to duty in Tikrit. While in Tikrit he started to receive threats saying “either you leave the army or we will kill you”, and that many of his colleagues were killed.

8    In the statement accompanying his visa application on 5 June 2017 (statement) he expanded on this and said that when he returned to the Army base in Tikrit he saw “lots of” damage to houses in the area caused in the riot and that the local people were blaming the Army and wanted the Army to fix the damage. He said the people were also angry because “a lot” of local people were killed in the fight. The local people were largely Sunnis and were also angry at the soldiers because of their religion. He said that the local people created unofficial checkpoints at which they would stop people and review their names and they could tell a person’s religion by their name. He said that was a “massive problem” to him as his name was identifiable as a Shia name. He again said that “a lot” of his Army colleagues were killed.

9    The applicant claimed that because of these threats he applied for one month’s leave from the Army, doing so on the basis that his son was sick and that he needed to look after him. To obtain the leave, the applicant exaggerated his son’s health problems and said that his son was in hospital when he was not. He moved back to his home district of Basra, and while still on leave he left Iraq by air, on a valid Iraqi passport, with his father, wife and children. Eventually, with the assistance of a people smuggler, they boarded a boat in Indonesia and came to Australia.

10    In his arrival interview, when asked what will happen to him if he returned to Iraq, he is recorded as having replied:

Applicant:    If I were to go back I would be imprisoned.

Department Officer:    Why?

Applicant:    Firstly because I was in the Army, secondly because I left Iraq illegally. Because a person in the Army cannot leave the country without getting permission from the Ministry of Defence

11    He did not mention this in his arrival interview, but in his 5 June 2017 statement the applicant claimed that while he was in Basra in 2012 he was told by friends that some strangers had asked about him on several occasions. He expanded upon this in his Protection Visa Interview on 30 May 2018 (visa interview) and said that the people asking about his whereabouts were Sunnis from Tikrit who had lost family members in the battle at the prison. He said that he no longer felt safe in Basra after that.

12    The Department officer interviewing the applicant during the visa interview noted that in the arrival interview, when the applicant was asked whether he was safe in Basra, he replied: “Yes I was safe in Basra”. The following exchange occurred:

Department Officer:    Why would you say you’re safe in Basra then?

Applicant:    Who said?

Department Officer:    You did. You are asked: “you were safe in Basra?” And you said “Yes I was safe in Basra”.

Applicant:    No way.

Department Officer:    Um. I mean your agent presumably has a copy of the arrival interview.

Applicant:    I have myself.

Department Officer: You’ve listened to it?

Applicant:    Yes and I also have the CDs from the camp. I listened to them also.

Department Officer:    So the transcript’s [sic] very clear that you were asked once you returned to Basra you were safe, and your reply is “In Al Basra yes I was safe”.

Applicant:    But when they came and asked about me I wasn’t safe anymore. When they were asking about me in Basra.

(Emphasis added.)

13    Before me the Minister conceded that, while the interview recording shows the interpreter said the applicant stated he was safe in Basra, the recording did not capture applicant’s actual response in Arabic.

The delegate’s decision

14    The delegate made various findings in relation to the applicant’s claims.

15    In relation to the applicant’s claim to fear harm because he had deserted the Iraqi Army and left Iraq illegally, the delegate accepted that the applicant left the Iraqi Army without resigning his position. However, on the basis of country information the delegate did not accept that the applicant faced a risk of prosecution for desertion, noting that there was an amnesty in place for military deserters.

16    The delegate did not accept that Sunnis from Tikrit had targeted the applicant when he was in Basra as a result of his involvement in the battle at the prison. The delegate reached an adverse view of the credibility of that claim on the basis that:

(a)    the arrival interview recorded the applicant as stating that he was safe once he returned to Basra, although the applicant denied saying that; and

(b)    it was implausible that Sunnis from Tikrit would travel to Basra to attempt to find and harm an individual soldier who had been involved in the fighting in Tikrit.

17    For these and other reasons, on 10 August 2018 the delegate did not accept the applicant’s various claims and decided to refuse to grant the applicant a visa.

The Authority’s decision

18    The delegate’s decision was a “fast track reviewable decision” and on 15 August 2018 it was referred to the Authority.

19    On 3 December 2018 the Authority handed down its decision. The Authority made detailed factual findings, and accepted some parts of the applicant’s evidence and rejected other parts. Overall, the Authority concluded that the applicant’s claims that he faced a real chance of serious or significant harm on return to Iraq were not well founded. The Authority accepted that the applicant is a Shia from Basra and that his mother and a number of adult siblings continued to reside there. It also found that the applicant’s evidence in relation to a blast which injured the applicant’s uncle during 2007, and a neighbourhood dispute resulting in the applicant being stabbed during 2009, was consistent and detailed. The Authority accepted that these incidents had occurred, and that the applicant’s family had to relocate for a period because of them, but that they had since been resolved and no longer caused the applicant any difficulty.

20    The Authority accepted that the applicant had joined the Iraq Army during 2007 and worked predominantly in administrative roles. It also accepted that the applicant attended the prison riot with other soldiers during 2012, that Army personnel had been targeted following the battle, and that the applicant’s name made him identifiable as a Shia which in turn compounded the risk to him. The Authority accepted that the applicant was injured during the battle but did not accept that he was personally targeted afterwards.

21    The Authority did not accept that the applicant had deserted from the Army. It said (at [19]):

The applicant claims he left Iraq while on leave from the army and without permission and so deserted the army. In the arrival interview he said after being threatened in Tikrit he took his family and they went back home and he left the job. On his return as he could not get work his father sold the family home and they used the money for him, his wife, children and father to travel to Australia. He left Iraq on his genuine passport in May 2013 and travelled by plane to the United Arab Emirates (UAE), then to Malaysia and then onto Indonesia where his passport was taken from him by the people smugglers and he illegally travelled by boat for Australia, all of which I accept given its consistency and the detail provided. In his SHEV application he relevantly said, for the first time, that he returned home for a few months to recover from injury after the prison riot and then returned to the army in Tikrit and was harassed by local Sunni families. He obtained leave from the army by telling them his son was sick (he says he exaggerated this to obtain leave) and that when he left Iraq he was still on leave. In the SHEV interview he said he had to tell them his son was sick and he was taking him to hospital otherwise they would not have let him leave the airport and he said, for the first time, that in Malaysia he was placed on a “deflection list” however very little detail was provided about this and it is somewhat at odds with him having been able to pass through other airports without issue before the Malaysian airport and I do not accept it. Given its late raising, the fact he was able to legally depart from Iraq without issue and the inconsistencies I do not accept he deserted the army. Based on the evidence before me, I consider it more plausible he resigned from the army after the prison riot.

(Emphasis added.)

22    The Authority also rejected the applicant’s claim that Sunnis from Tikrit had travelled to Basra and targeted him. It said (at [17]-[18]):

… Given the recency and significance of the claim to have been targeted in Basra by Sunnis from Tikrit, in particular that it was what precipitated his departure from Iraq, the fact it was not mentioned in the arrival interview or with any specificity in the SHEV application raises serious concerns for me regarding its veracity.

On the totality of the evidence before me, including its late raising, inconsistencies and the lack of detail I do not accept people from Tikrit were looking for the applicant in Basra, as claimed…

The Federal Circuit Court decision

23    On 4 January 2019 the applicant filed an application for judicial review of the Authority’s decision in the Federal Circuit Court. The application was listed for a first Court date on 4 February 2019. Neither the applicant nor his solicitor appeared at the hearing.

24    On 7 February 2019 Registrar Morgan made orders to dismiss the application on the basis of the applicant’s non-appearance. On 15 February 2019, the applicant’s solicitor, Mr Ali Akafaji of Stamford Law, filed an application to set aside the orders of Registrar Morgan and reinstate the proceeding, together with affidavits in support by the applicant and Mr Akafaji. Pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), the Court may set aside a judgment or order after it has been entered if it was made in the absence of a party.

25    The applicant deposed that he speaks and reads Arabic but that his ability to read English is very poor. He said that his solicitor prepared the application for judicial review but asked the applicant to file it, which he did on 4 January 2019. He deposed that because he can only read very simple English he did not understand that his case was listed for a first Court date on 7 February 2019. In his affidavit Mr Akafaji deposed to various possible errors in the Authority’s decision, including the finding at [19] that it did not accept that the applicant had deserted the Army because he raised a claim “late” and because he said in his arrival interview that “he left the job”. The affidavit also raised the possibility that the applicant’s responses may have been translated in a manner which did not accurately capture what the applicant had said.

26    The application for reinstatement of the proceeding was listed for hearing before Street J on 4 March 2019. Counsel for the applicant provided the Court with a document headed “Grounds of Jurisdictional Error” setting out the grounds of jurisdictional error which would be alleged if the application for judicial review was reinstated. Ground one alleged as follows:

1.    The Minister’s delegate accepted in a decision dated 10 August 2018 that the applicant “deserted the army”: see IAA decision at [2]. In contrast, the Immigration Assessment Authority (“the IAA”) at [19] did “not accept [the applicant] deserted the army” (see also at [26]) and instead found that the applicant “resigned from the army”. The IAA fell into jurisdictional error in making this finding for the following reasons:

a)    First, whether or not the applicant deserted the army was significant to the applicant’s claims since:

i.    an express claim in his SHEV application was that he feared serious harm because he “left the Army without permission”; and

ii.    if the applicant had deserted the army, it is likely this would have affected the IAA’s assessment of the applicant’s claims.

Where the Minister’s delegate makes a finding of fact concerning an important matter or issue in the applicant’s favour and the IAA is considering making a finding adverse to the applicant concerning the matter or issue, it is legally unreasonable for the IAA not to exercise its power under s 473DC of the Migration Act 1958 (Cth) to give the applicant an opportunity to comment. In the circumstances, the IAA’s conduct in failing to exercise its power under s 473DC to give the applicant an opportunity to comment on the IAA’s concerns was legally unreasonable.

b)    Second, the IAA stated at [19] “I consider it more plausible he resigned from the army…”. This wording involves a finding on the balance of probabilities and some doubt by the IAA concerning the finding. As stated in Minister v Rajalingam (1999) 93 FCR 220 at [67], “if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred”. In the present case, the IAA erred by not considering the possibility that its past finding of fact on this material question was wrong.

c)    Third, the applicant explained in the statement accompanying his SHEV application at [19] that “When I left the country I was still within the 1 month Army leave [and] the authorities at the airport did not know my intention to flee Iraq”. The IAA overlooked this evidence in rejecting the [applicant’s] army desertion claim on grounds that “he was able to legally depart from Iraq without issue”. To overlook significant evidence is a jurisdictional error.

27    The primary judge heard the application for reinstatement and delivered reasons for judgment on the same day. The primary judge correctly set out the legal test for determining an application for reinstatement under r 16.05(2)(a) of the FCC Rules and identified that the central issue was whether the applicant had a reasonably arguable case of jurisdictional error by the Authority such that there would be utility in setting aside the orders to dismiss the proceeding. Ultimately the primary judge was not satisfied that the applicant showed there was a reasonably arguable case of jurisdictional error on behalf of the Authority, and the application for reinstatement was dismissed: AAV19 v Minister for Home Affairs & Anor [2019] FCCA 517 at [22].

28    In relation to ground one the primary judge found (at [7]-[10]):

Proposed ground 1(a)

In relation to proposed ground 1(a), Mr Zipser [of counsel for the applicant] submitted that the Authority had engaged in jurisdictional error by failing to consider exercising the power under s 473DC of the Act before making a different finding to that of the delegate in relation to the applicant’s contention that he deserted from the army. The Authority in its reasons expressly identified in paragraph 2 that the delegate had accepted a number of the applicant’s claims, including, relevantly, that he had deserted from the army.

The Authority in its reasons squarely made a finding that it did not accept that the applicant deserted the army and found that the applicant had resigned from the army just after the prison riot. That adverse finding was made by the Authority in the context of the applicant having left Iraq on his genuine passport in May 2013. Dealing with the provisions of Part 7AA of the Act, and in particular the primary rule identified in s 473DB of the Act, I do not accept that the departure in reasoning by the Authority from that of the delegate identifies any reasonably arguable ground as alleged in proposed ground 1(a).

Proposed ground 1(b)

In relation to proposed ground 1(b), Mr Zipser submitted that the findings of the Authority were expressed as being the subject of doubt and that, accordingly, the Authority should have considered the issue of “what if I am wrong?” test. The Authority’s finding that the applicant did not desert from the army is not couched in language of doubt. There is no scope for the application of such principle. Proposed ground 1(b) fails to identify any reasonably arguable ground.

Proposed ground 1(c)

In relation to proposed ground 1(c), Mr Zipser submitted that the Authority had overlooked the applicant’s evidence in his statement that he was on leave at the time he departed. Paragraph 19 of the Authority’s reasons makes clear that the Authority was aware of the contention that the applicant was still on leave and it did not accept the same. No arguable jurisdictional error as alleged in proposed ground 1(c) is made out.

29    The primary judge dismissed each ground of the application, and dismissed the application for reinstatement.

The application to this Court

30    On 22 March 2019 the applicant filed an application for leave to appeal the orders of the Federal Circuit Court. The draft notice of appeal did not adequately particularise the proposed grounds of appeal. The applicant stated that he did not appear at the hearing on 4 February because he expected his solicitor to do so, that he had an arguable case and that the primary judge erred in that he was deprived of the right to have his case fully heard.

31    The application came before me for hearing on 12 August 2019. The applicant did not have legal representation and he appeared through an interpreter. His submissions were of little assistance because he did not understand the concept of jurisdictional error nor that the Court has no power to conduct a merits review. Another difficulty was that the Court had not been provided with an Application Book containing all of the relevant materials, and only had the Authority’s decision and the primary judge’s reasons.

32    Upon reviewing the Authority’s decision I was concerned about the rejection of the applicant’s claim to have deserted the Iraq Army and the positive finding that the applicant had resigned voluntarily. Having regard to that concern and also the suggestion that what the applicant had said in his arrival and visa interviews had not been correctly recorded I made orders requiring the Minister to provide the applicant the audio recordings and transcripts of the interviews and to file and serve an application book containing all the relevant material. I made a referral for the appointment of pro bono counsel to represent the applicant and required the applicant to file a draft notice of appeal which properly particularised the proposed grounds of appeal.

33    The draft notice of appeal that was subsequently filed set out the following grounds:

The primary judge erred in holding that there was no reasonably arguable case of relevant error by the Second Respondent (IAA) as it is reasonably arguable that the IAA erred by:

(a)    rejecting the appellant’s claim to have deserted from the Iraq army and instead finding, without evidence or intelligible justification, that it was more plausible that the appellant resigned from the army (at [19]);

(b)    failing to consider the “new information” submitted by the appellant pursuant to section 473DD of the Migration Act 1958 (Cth) (Act) with respect to the corroboration of his claims by a new witness by misunderstanding the submission and only considering it by reference to the Local Court orders attached to the submission (Bundle page 192) when those orders were only being submitted, as expressly stated in the appellant’s submission, to “indicate that there is a relationship between the [appellant] and the Australian woman” and could not have been the evidence referred to (Bundle page 185.8, IAA at [7]);

(c)    unreasonably failing to exercise its powers under section 473DC of the Act to obtain the obtain the relevant country information referred to in its reasons at [7] when it had determined that it would exercise the power under section 473DC of the Act to seek the new country information in its reasons at [10];

(d)    construing the meaning of “exceptional circumstances” in section 473DD(a) of the Act by reason of its consideration that the routine country information it had obtained at [10] satisfied the section but the other new information sought to be adduced by the appellant did not.

34    Ground 1(a) traverses similar terrain to grounds one and two below, while grounds 1(b), (c) and (d) are proposed new grounds of appeal which were not raised before the primary judge. Given my view that the applicant should succeed on Ground 1(a) it is unnecessary to decide whether to grant leave to advance the proposed new grounds. As the Minister accepted to be appropriate, if leave to appeal is allowed it will be permissible for the applicant to rely upon any grounds of appeal that he and his legal advisers consider to be appropriate.

Consideration

35    In CPZ16 v Minister for Home Affairs [2019] FCA 1204 at [26], in relation to an application for leave to appeal from orders made by the Federal Circuit Court to refuse reinstatement of a proceeding under r 16.05(2)(a), Wheelahan J said and I respectfully agree:

Any appeal to this Court from the interlocutory orders of the primary judge refusing to reinstate the applicants’ proceeding in the Federal Circuit Court is an appeal by way of rehearing. The powers of the Court on any such appeal are exercisable where the appellant demonstrates some legal, factual, or discretionary error: Allesch v Maunz (2000) 203 CLR 172 at [23]. In this case, the decision of the primary judge was discretionary, which attracts the well-known statement of principle in House v The King (1936) 55 CLR 499 at 505. In any appeal in this case, that statement of principle would invite attention principally to whether there was a reasonably arguable basis upon which the Tribunal had fallen into jurisdictional error which, within the boundaries of the grounds of review advanced by the applicants before the Federal Circuit Court, the primary judge had overlooked.

36    It is common ground between the parties that the central question in the application before me is whether the primary judge’s decision is attended by sufficient doubt as to warrant reconsideration on appeal, which turns on whether the proposed grounds of appeal are reasonably arguable. The Minister does not contend that, assuming the decision of the primary judge to be wrong, the applicant would not suffer substantial injustice if leave to appeal were not granted.

37    What is required is an examination of the proposed grounds of appeal at “a reasonably impressionistic level” and the Court should not descend into a full consideration of the arguments for and against each ground. The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J); MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478; at [38] (Tracey, Perry and Charlesworth JJ); Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27] (Siopis, White and Perry JJ). Having said that, the factual underpinnings of the parties’ arguments addressed the Authority’s reasons in a detailed way, and I have found it appropriate to consider the arguments as they were advanced.

Ground 1(a) –no intelligible justification

38    The Authority’s finding which is challenged under Ground 1(a) appears at [19] of its decision, where the Authority concluded:

… Given its late raising, the fact he was able to legally depart from Iraq without issue and the inconsistencies I do not accept he deserted the army.

39    The Minister argues that there is no merit in this proposed ground as there is nothing illogical or unreasonable about that factual finding. The Minister points to the fact that the arrival interview in the materials before the Authority stated that the applicant claimed that, after he was threatened in Tikrit:

I went back home and I left the job. In Al Basrah there is work … but you need to have connection with the government and we didn’t have connection”.

The Minister construes the applicant as stating that after he returned to the Army for a short period after recovering from his injury he ultimately decided to leave the army, and gave specific evidence about the difficulties he then faced finding alternative work.

40    Moreover, the Minister contends that the mere fact that logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from evidence is no basis for determination that the conclusion preferred is irrational or unreasonable: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]-[131] (Crennan and Bell JJ). The Minister argues that it was open to the Authority to disbelieve the applicant and make the finding that he had not deserted the Army and had instead resigned from it, when his claim to have been on leave from the Army when he left Iraq was inconsistent with the information he gave at his arrival interview.

41    I do not accept the Minister’s submissions and I consider this ground to be reasonably arguable. The applicant’s evidence was as follows:

(a)    in his arrival interview in August 2013, when responding to a question as to why he feared harm he stated “because I left Iraq illegally. Because a person in the army cannot leave the country without getting permission from Ministry of Defence.” Later in the interview he explained that he had left Iraq by air and did not have any problems at the airport;

(b)    in his written statement in June 2017, he further explained he was able to leave Iraq legally because he was still within his period of leave from the Army, and he explained that he did not get approval for discharge from the Army; and

(c)    in the visa interview in May 2018 he explained that he told the Army that his son was ill and it was only after the applicant landed in Indonesia, after having been in Malaysia for a few days, that the Army realised he had deserted.

42    It is reasonably arguable that there is no significant inconsistency in the applicant’s account in this regard. At all times he claimed that he feared harm because he deserted from the Army and his further statements were not inconsistent with that. It is correct, as the Minister contends, that at question 32 of the arrival interview the applicant said he went back home to Basra and “left the job” and then briefly explained the difficulty he had in obtaining work in Basra. That answer was however immediately followed by question 33: “What do you think will happen to you if you return to your country of nationality (residence)? The applicant responded as follows:

If I were to go back I would be imprisoned. Why? Firstly because I was in the Army. Secondly because I left Iraq illegally. Because a person in the Army cannot leave the country without getting permission from the Ministry of Defence…

43    The Minister also sought to make something out of the fact that the Applicant did not state that he was placed on a “deflection list” in Malaysia until his visa interview, which was another “late raised” claim which justified the Authority’s adverse finding at [19]. I do not consider this to be a point of substance. The relevant exchange in the visa interview was as follows:

Department Officer:    Okay. So when did your leave run out and you officially become absent without leave?

Applicant:    Okay when I left Iraq I told them that my son is ill and I had to take him. I them he’s admitted in the hospital. Because if I told them I want to leave they wouldn’t let me leave the airport. So when I arrived Indonesia that’s when they became aware.

Department Officer:    What did they do about it?

Applicant:    They recorded me in the deflection list.

It is reasonably arguable that this does not justify a finding that the applicant’s account was not to be believed because, understood in the context of the whole interview, the applicant was just answering the question and providing more detail, and not attempting to embellish his story.

44    In my view it is reasonably arguable that:

(a)    the Minister’s reading of the interview records is not a fair one and that there is no inconsistency of substance in the applicant’s account that he deserted from the Army;

(b)    there is no basis in the evidence for the positive finding that the applicant in fact resigned from the Army. It is difficult to see how the Authority’s finding that the applicant left Iraq legally from an airport is capable of supporting a positive finding that he had resigned from the Army. The mere fact that the applicant had a passport and was able to leave Iraq legally was open to many speculative inferences including, for example, that the Army had not yet notified the airports, that there was some error in the system such that his departure went undetected, or as the applicant claimed, that he was recorded by the Army as being on leave: see Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [70]-[73] (Mansfield, Siopis and Gilmour JJ) and the cases there cited about impermissible speculation where a multiplicity of inferences are open; and

(c)    on a fair reading of the Authority’s decision, its rejection of the applicant’s claim to have deserted the Army and its finding that the applicant instead resigned from the Army is a finding which no rational or logical decision-maker could reach on the same evidence: SZMDS at [130] (Crennan and Bell JJ).

45    The Minister then argues that the Authority’s erroneous finding at [19] is not material in the requisite sense. The Minister notes that the Authority said (at [29]):

The applicant claims to fear being harmed because he was an Iraqi soldier. I have accepted the applicant was in the Iraqi army. DFAT states that lower-level officials and office-based public servants face a low risk of violence in Iraq. Further while country information indicated Iraqi security forces were wounded or killed in northern and central Iraq in November 2017, it also indicated none were injured or killed in Basra. There is also no credible information before me to indicate former Iraqi soldiers are targeted. The applicant predominantly worked in an administrative role, was not high ranking, and it has been some six years since he last worked as a soldier and the applicant has not said he would not return to his home area in the south, where his mother and some of his adult siblings continue to reside. His brother who also worked in the army in the past now lives in Germany.

(Emphasis added and citations omitted.)

46    The Minister contends - based on the unchallenged findings of the Authority that the applicant was low ranking; that former Iraqi soldiers are not targeted; and that no Iraqi security officers were injured or killed in Basra in November 2017 - that the finding that the applicant did not desert the Army did not deprive the applicant of the realistic possibility of a successful outcome in his visa application: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]-[31] (Kiefel CJ; Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [49] (Bell, Gageler and Keane JJ).

47    In my view it is reasonably arguable that the relevant error is material. The findings at [29] concern the risk to former Iraqi Army soldiers from non-State actors, not the risk of harm the applicant might face at the hands of Iraqi authorities as a deserter. They do not relate to the applicant’s claim that he was being targeted by Sunnis from Tikrit because he was a member of the Iraqi Army who was involved in the prison riot in Tikrit which led to many local people being killed and their houses damaged. The applicant’s claim that he will face a risk of serious or significant harm as a deserter is an important integer of his claim for protection, and it is reasonably arguable that the Tribunal’s failure to give that claim intelligible and rational consideration to the requisite level means he has been deprived of the realistic possibility of a different outcome.

Ground 1(b)-(d)

48    Given that I have found under Ground 1(a) that the primary judge erred in holding that there was no reasonably arguable case of jurisdictional error on the part of the Authority, it is unnecessary to decide whether the other grounds of appeal are also reasonably arguable.

CONCLUSION

49    For these reasons it is appropriate to grant leave to appeal and to allow the appeal. I have made orders setting aside the orders of the Federal Circuit Court made 4 March 2019 and in lieu thereof ordered that the orders of Registrar Morgan made on 7 February 2019 be set aside, and the Minister pay the applicant’s costs of the reinstatement application before the Federal Circuit Court and the application for leave to appeal to this Court. The application for judicial review of the Authority’s decision is to be remitted to the Federal Circuit Court, differently constituted.

Associate:

Dated:    10 March 2020