FEDERAL COURT OF AUSTRALIA

DFS17 v Minister for Immigration and Border Protection [2020] FCA 642

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Iraq. He has resided in Australia as the holder of a subclass 886 (Protection) visa granted to him in 2013 under the Migration Act 1958 (Cth). On 2 December 2016 a delegate of the first respondent Minister cancelled the appellant’s visa after finding that he had not complied with a statutory obligation to give correct information in support of his visa application. That decision was affirmed on review by the Administrative Appeals Tribunal.

2    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. The primary judge dismissed the application: see DFS17 v Minister for Immigration & Anor [2019] FCCA 1912. This is an appeal from that judgment.

3    For the reasons given below, the appeal should be dismissed.

ORIGINAL GRANT OF THE VISA

4    To be eligible for the grant of a protection visa it is necessary that the Minister be satisfied that the visa applicant satisfy one of the alternate criteria in s 36(2) of the Act. At the relevant time, a non-citizen would satisfy s 36(2)(a) of the Act if the Minister was satisfied that the non-citizen was someone to whom Australia owed protection obligations under the Refugees Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967). For the purposes of s 36(2)(a) as it then stood, Australia owed protection obligations under the Convention to persons described in Article 1A(2), namely a person who:

… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

5    As Dawson J said in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396, the phrase “well-founded fear of being persecuted” contains both a subjective and an objective component: there must be both a fear of being persecuted for a Convention reason and an objective foundation for that fear. The objective component of the test is whether there is a “real chance” of persecution, such that possibilities of persecution that are remote, insubstantial or far-fetched are to be discounted: Chan at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

6    The appellant completed a form in support of his visa application. The form contained the following questions:

42.    I am seeking protection in Australia so that I do not have to go back to (Give name of country or countries).

43.    Why did you leave that country?

45.    What do you fear will happen to you if you go back to that country?

46.    Who do you think may harm/mistreat you if you go back?

7    The appellant provided a written statement in response to these questions which included the following:

I left Iraq to save my life from the threat of being targeted and even killed by the extreme militia group who is strongly opposes the American troops, individuals and groups who worked with American and coalition troops in Iraq.

…

After about a week, I received another phone call from unknown person who did not identify himself. He threatened to kill me on the phone and described my family and my previous involvement with the American troops. I told him that I already quit the job but he said that was not enough and he got an order to kill me. I was really scared and asked who the caller was. He responded he was from the Islamic Government of Iraq.

As I feared to be killed thus I stopped driving taxi and tried to hide myself from place to place and I changed my mobile number. But I believed the hiding is not an option as I believed those people can kill me if found as they killed my colleagues

…

I believe if I return to Iraq, the Militia groups called themselves the Mujahidin of Islamic State of Iraq (the terrorist groups) will kill me and even harm my family if they found me in Iraq because I was identified by them that worked for the American led coalition army.

8    The appellant participated in an interview with the Minister’s delegate. On the basis of the claims made in the visa application, and at his interview, the Minister’s delegate concluded that the appellant’s fear of persecution was objectively well-founded and so granted the visa. In her written reasons for the decision, the delegate stated that although the appellant may have embellished some aspects of his claims, the information he had provided was generally consistent with country information concerning the treatment of Iraqi citizens who had assisted Coalition forces prior to their withdrawal from Iraq in 2012. The delegate summarised a number of sources of country information in some detail to support those conclusions.

CANCELLATION OF THE VISA

9    Subdivision C of Div 3 of Pt 2 of the Act is titled “Visas based on incorrect information may be cancelled”. Section 101 relevantly provides that a non-citizen must fill in or complete his or her application form in such a way that all questions on it are answered (subs (a)) and no incorrect answers are given or provided (subs (b)). Section 99 provides:

99 Information is answer

Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

10    If the Minister considers that the holder of a visa did not comply with s 101, the Minister may give the visa holder a notice under s 107 of the Act, relevantly:

(a)    giving particulars of the possible non-compliance; and

(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)    if the holder disputes that there was non-compliance:

         (A)    shows that there was compliance; and

  (B)    in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or

(ii)    if the holder accepts that there was non-compliance:

        (A)    give reasons for the non-compliance; and

        (B)    shows cause why the visa should not be cancelled; and

11    Section 108 provides that the Minister is to consider any response given by the visa holder in answer to the notice given under s 107, and decide whether there was non-compliance by the visa holder “in the way described in the notice”.

12    Section 109(1) confers a discretion on the Minister to cancel a visa. It provides:

109 Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

…

13    On 22 April 2016, a delegate of the Minister sent the appellant a “NOTICE OF INTENTION TO CONSIDER CANCELLATION UNDER SECTION 109 OF THE MIGRATION ACT 1958” (Notice).

14    The Notice commenced with a statement to the effect that delegate considered that the appellant had not complied with s 101 of the Act. It referred to the answers the appellant had given to questions 42, 43, 45 and 46 of the visa application form and the claims the appellant had made in support of those answers, as reproduced earlier in these reasons.

15    The Notice referred to departmental movement records showing that the appellant had travelled overseas on 28 September 2014 for three months and again for three months on 22 July 2015, on each occasion spending most of his time in Iraq in and around the places where he had claimed to be most at risk.

16    The Notice stated that the appellant had been granted a protection visa on the basis that he had engaged Australia’s obligations under the Convention and that his claimed fear of harm was “fundamental” to the determination that he was a person to whom protection obligations were owed. It continued:

18.    As it is apparent you voluntarily entered Iraq a year after you were granted your visa, and returned there in 2015, I consider that you did not believe that your life was under threat in the context of the claims that you made. It is apparent that despite your claim of being targeted by an extremist militia - Mujahidin of Islamic State of Iraq - you were willing to travel directly back to the region in Iraq where you claimed that you were a target of that militia and faced the most danger. Your stays in Iraq were not for insignificant periods of time; rather, they were extended stays in which according to your own claims you would have come to the attention of the militia. Based on your claims in which you stated that the militia was effective in tracking you and your family members down, I consider that if you held an adverse risk profile, this militia would have once more located you. As it is apparent that this did not occur, I consider that you did not hold an adverse profile, nor were you of adverse interest to this militia, as you claimed in your protection visa application.

19.    Given that you have returned to Iraq on two occasions and remained there for a total of 6 months, it appears that you did not hold a profile of risk nor hold a fear of return. As the incorrect information provided was material to this determination it appears you may not have engaged Australia’s protection obligations.

17    The Notice particularised the appellant’s “possible non-compliance” in the following terms:

Particulars of the possible non-compliance:

20.    I consider that you have not complied with section 101(b) of the Act as you have provided incorrect answer to the following question in your application for a Protection visa:

•    At question 43 of part C of the Form 866, which states: ‘Why did you leave that country?’ you stated: ‘Please refer to the statutory declaration attached to 866 application’, as it appears that you did not hold claimed profile of harm.

•    At question 45 of part C of the Form 866, which states: ‘What do you fear will happen to you if you go back to that country?’ you stated: ‘Please refer to the statutory declaration attached to 866 application’, as it appears that your apparent voluntary return to Iraq without any apparent harm for a significant amount of time supports the consideration that you are not and were not of adverse interest to the claimed militia

•    At question 46 of part C of the Form 866, which states: ‘Who do you think may harm/mistreat you if you go back?’ you stated: ‘Please refer to the statutory declaration attached to 866 application’, as it appears that you did not and do not hold an adverse profile in Iraq.

•    I consider that you have not complied with section 101 (b) of the Migration Act in relation to the Statement of Claims described in paragraphs 7-10 above, in which you state that your claim for needing protection is because you fear that your life was in danger as you were targeted by the Mujahidin of Islamic State of Iraq terrorist militia, because the evidence available to me indicates that you returned to Iraq within a short period after being granted your visa, and have continued to voluntarily travel to and stay in Iraq for extended periods of time. I consider your voluntary return to the country of claimed persecution is inconsistent with your protection visa claims of being not able to return there as you are of adverse interest for harm.

On the material presently before me, I consider you did not comply with paragraph 101(b) of the Act because you did not fill in your application form in such a way that no incorrect answers are given or provided.

The powers to issue this Notice, make a decision about whether there was non-compliance in the way described in this Notice, and make a decision about whether to cancel your visa, exist whether the non-compliance was deliberate or inadvertent.

18    After considering the appellant’s responses, the delegate made a decision pursuant to s 108 of the Act that there was non-compliance with s 101(b) of the Act in the manner described in the Notice. Having made that finding, the delegate exercised the discretionary power under s 109 to cancel the visa. That decision was reviewed by the Tribunal in the exercise of its powers of review under Pt 7 of the Act. The review involved reconsideration both of the decision to cancel the visa and of the delegate’s decision under s 108 of the Act that the appellant had not complied with s 101.

19    The appellant appeared before the Tribunal to make submissions and give evidence. He also made written submissions for the purposes of an International Treaties Obligations Assessment (ITOA). A purpose of the ITOA was to assess whether the appellant would be at risk of persecution if he were to be returned to Iraq at the time of the Tribunal’s decision.

20    The appellant’s evidence was to the effect that he had travelled to Iraq in 2014 to obtain a passport for his son and had remained there because his mother was critically ill and had begged him to stay. He said that it was necessary for him to be physically present in Iraq to obtain the passport and that no other family member could do it. He said that he had kept a low profile and visited his mother discretely. He said that he returned in 2015 when his mother was dying and that he had again limited his movements and kept a low profile. He did not attend his mother’s funeral but he did visit relatives and his mother’s grave. He said he had stayed on that occasion because his wife (who continued to reside in Iraq) was mentally ill. The appellant said that on each occasion he had obtained the consent of the Department of Immigration and Border Protection before travelling to Iraq. He said that a departmental official had told him that he was free to travel because he had a permanent visa. He said that he had changed his name in May 2014 which had made it less likely that he would be detected by extremists.

21    In its written decision record the Tribunal said (at [31]):

I explained to the applicant that the first question I had to look at was whether he had given incorrect answers in the application form in the way described in the notice which had been sent to him in relation to the cancellation of his visa. I put to him that he had said in that application that he believed that if he returned to Iraq he would be killed by an extremist militia group which had threatened to kill him. I put to him that when he had been interviewed by an officer of the Department in relation to his application for a protection he had said that if he returned to Iraq there was a big possibility - a 99.9 per cent probability - that he would be killed by this extremist group. I put to him that the fact that since then he had returned to Iraq on two occasions and that he had remained there for around three months on each occasion suggested that this had not been true.

22    The Tribunal went on to summarise the responses the appellant had given to is questions and in relation to the ITOA. In relation to whether the appellant had complied with s 101 of the Act in 2012, the Tribunal concluded:

59    Although the applicant’s representatives said that the applicant had maintained a low profile (and the applicant repeated this at the hearing before me) I consider it relevant that he has said that he returned to the very place where he said in the statement accompanying his application for a protection visa he had received threats because of his involvement with the American troops. Having regard to his evidence with regard to where he went, who he stayed with and what he did, I consider that, although he said that the extremist militias had not been expecting him to go back to Iraq, his presence in Iraq can hardly have failed to come to the attention of other members of the community in Kufa and Najaf. The applicant’s representatives submitted that the applicant had returned to Iraq for compelling reasons and that, although he had remained for three months, this did not mean that he would have been safe for a longer period. However, while I might take a different view if the applicant had only returned briefly to obtain a passport for his son and to care for his dying mother, I consider that the fact that he remained for around three months on each occasion logically supports the conclusion that he did not in fact fear being killed by extremist militia groups as he had claimed in the statement accompanying his application for a protection visa.

60    In the response dated 29 July 2016 to the letter in relation to an ITOA the applicant’s representatives submitted that the threat to the applicant from militias had not diminished and at the hearing before me the applicant himself said that fanatical and extremist individuals looked down on any person who had worked with the Americans. I do not consider, therefore, that there is any scope for an argument that the applicant believed that it would be safe for him to return to Iraq in 2014 and 2015 because the threat to which he had referred at the time of his application in 2012 had diminished. I conclude that it was not true that, as the applicant claimed in his statement accompanying his application for a protection visa, he feared being killed by extremist militia groups if he returned to Iraq.

61    Having regard to my findings of fact above, I find that the applicant gave incorrect answers to questions 42 to 46 of the application form for a protection visa when he said that he was seeking protection in Australia so that he did not have to go back to Iraq and when he referred to the information set out in the accompanying statement of claims with regard to why he had left Iraq and what he feared would happen to him if he went back to Iraq. I find that the information contained in that statement (which is taken in accordance with section 99 of the Migration Act to be an answer to a question in the application for the purposes of paragraph 101 (b) of the Act) was incorrect in that, as I have found above, the applicant did not in fact fear being killed by extremist militia groups if he returned to Iraq as he claimed. For the reasons given above, therefore, I find that there was non-compliance with paragraph 101 (b) of the Migration Act by the applicant in the way described in the ‘Notice of Intention to Consider Cancellation’ sent to him under section 107 of the Act.

23    The Tribunal went on to consider other matters relevant to the exercise of the discretion to cancel the visa under s 109 of the Act, concluding (at [85]):

…  I have found above that the decision to grant the applicant a protection visa was based on the incorrect information which he provided, namely his claim that he feared being killed by extremist militia groups if he returned to Iraq, and I consider that there is an expectation that neither he nor the members of his extended family should benefit as a result of the incorrect answers which I have found he provided. For the reasons given above I do not accept that there are obligations under relevant international agreements which will be breached if the applicant’s visa remains cancelled and I do not accept that indefinite detention is a likely consequence of the cancellation decision. Having given careful consideration to all of the relevant circumstances, therefore, I have concluded that the applicant’s visa should be cancelled.

JUDICIAL REVIEW

24    On his application for judicial review the appellant argued that the Tribunal’s conclusion that he had not complied with s 101 of the Act was affected by legal unreasonableness. He alleged that the Tribunal had wrongly omitted from its consideration the reasons why he had travelled to Iraq and the fact that he had changed his name. He argued that there was a “legally inadequate foundation” for the Tribunal’s conclusions that there was a likelihood his presence in Iraq would be detected and for its reliance upon the three month duration of each of his visits to Iraq.

25    After summarising the legal principles and the appellant’s submissions, the primary judge said:

68.    In my view, the difficulty with the applicant’s analysis is this. The Tribunal was required to compare what the applicant had said and done to the Department, in 2012, with its findings of what he had done in 2014 and 2015. This was fundamentally an exercise in fact finding. From this analysis, it was required to conclude whether or not the statements made by the applicant, in 2012, could have been correct, in the light of how he behaved later.

69.    As with many fact finding exercises, it is a question of degree and what weight an individual fact finder places on different factors to reach a conclusion. Different minds may reach different conclusions about the same factors as a consequence of placing varying degrees of weight or emphasis on the various considerations applicable. This does not necessarily make one conclusion logical and the other illogical. Rather the fact finders in question have applied an idiosyncratic reasoning process to the decision making process.

70.    It cannot be the case that each fact finding task has only one logical conclusion and that therefore an alternative finding must axiomatically be illogical. In this case, in my view, the applicant invites the court to make its own analysis of the factual situation and reach a different conclusion to that of the AAT. In my view, this would be tantamount to a merits based review, which is impermissible on judicial review.

GROUNDS OF APPEAL

26    The appellant was self-represented at the time that the appeal was commenced. As originally filed, his notice of appeal asserted a single ground, namely that the primary judge had erred by failing to conclude that the Tribunal’s decision was legally unreasonable.

27    The appellant had pro bono legal assistance upon the hearing of the appeal. Counsel for the appellant sought leave to rely on amended grounds as follows:

1.    The Learned Federal Circuit Court Judge erred in misapprehending the task of the Administrative Appeals Tribunal (‘AAT’) as restricted to ascertaining whether the Appellant had given incorrect answers in his protection visa application, contrary to the provisions of s101(b) of the Migration Act 1958 (‘the Act’) by reference solely to the particulars set out in the Notice to Consider Cancellation of 22 April 2016 (‘The Notice’).

Particulars

The finder of fact (here the AAT) is required by statute to ‘decide whether there was non-compliance by the visa holder in the way described in the notice’: s108(b) of the Act. In the statutory context of s101(b) s108(b) must be read broadly to allow the largest ability in the finder of fact to determine whether s101(b) has been breached. The non-compliance is described in the Notice, but the range of materials available to the finder of fact is not restricted to the responses of the Appellant. Relevant objective materials were available to the finder of fact to test the incorrectness or otherwise of the Appellant’s answers, but were not relied on. Relevant considerations were not relied on.

2.    The Learned Federal Circuit Court Judge erred in misapprehending the task of the AAT in finding it was ‘required to compare what the applicant had said and done to the Department in 2012, with its findings of what he had done in 2014 and 2015.’ (Judgment [68]) Similarly the Judge erred in stating that the task of the AAT was ‘to consider whether a person with the professed level of subjective fear of what would happen to him, if he returned to Iraq, would in fact do what he said he feared .... ‘ (Judgment[90])

Particulars

The AAT’s task was not to compare what the Appellant said in 2012 with what the Department’s findings were of what he did in 2014 and 2015, nor was it to assess whether his professed level of subjective fear would allow a return to Iraq. Rather, the task of the AAT was to determine whether the Appellant had given incorrect answers in his visa application, by reference to the issues raised in the Notice.

3.    The Learned Federal Circuit Court Judge erred in failing to find the decision of the AAT unreasonable in its illogicality over the evidence of continuing threat in Iraq, which evidence objectively supports the veracity of the Appellant’s answers in 2012.

Particulars

The Judge accepted the AAT approach of playing the subjectively based claims of the Appellant made in 2012 against the assessment made by the AAT of the Appellant’s state of mind in 2014 and 2015, instead of relying on the best objective evidence to assess the veracity of the Appellant's answers in 2012.

4.    In the alternative, the Learned Federal Circuit Court Judge erred in failing to determine that the AAT had ignored a relevant consideration in the evidence available as to the threat to the Appellant having receded since he gave his answers in 2012, which evidence would allow for the veracity of the 2012 answers, in a context in which the security situation had changed in Iraq.

28    The fourth ground of appeal raises an issue that was not advanced in the proceedings below. Leave is required to introduce it now. I will determine the question of leave in due course.

29    Counsel for the Minister submitted that leave was also required in relation to the first and second grounds. The appellant’s representative appeared to concede that leave was required in relation to those grounds and the hearing before me proceeded from that assumption.

30    Upon reflection, I am satisfied that the appellant does not require leave to introduce the first and second grounds. Those grounds allege errors in discrete aspects of the reasoning of the primary judge toward his conclusion that the ground for judicial review had no merit. In my view, they are incidents of the appellant’s central argument that the Tribunal’s decision was not open to it to make, and they relate to issues that were in fact considered and determined by the primary judge.

31    It is convenient to focus attention on the third ground of appeal. In the course of doing so I will deal with the arguments raised by the first and second grounds and explain why leave should not be granted to introduce the fourth.

LEGAL UNREASONABLENESS

32    The decision reviewed by the primary judge involved two steps. First, the Tribunal made a decision under s 108 of the Act that the appellant had not complied with s 101 in the manner that had been particularised in the Notice issued under s 107. Second, the Tribunal determined that the visa should be cancelled in the exercise of the discretion conferred by s 109. On its proper construction, the power conferred under s 109 is preconditioned by the existence of a decision under s 108 that has been lawfully made. Material error affecting the legality of the decision under s 108 necessarily goes to jurisdiction in the exercise of the cancellation power.

33    As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), for an administrative decision to be categorised as legally unreasonable, the decision must be evaluated and a conclusion reached as to whether it:

… has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

34    In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the Full Court said that the process of reviewing a decision on the ground of legal unreasonableness “will inevitably be fact dependent”. The Court continued (at [48]):

…  That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

35    And as Nettle and Gordon JJ said in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84]:

… legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.

36    The task of a court exercising powers on judicial review is to not to supplant the decision-maker’s view as to the most objectively reasonable outcome with that of its own: Stretton (at [21]). That statement of principle applies equally to a decision-maker’s findings of fact as it does to a decision-maker’s evaluative functions and discretionary powers.

37    Examination of a decision for legal unreasonableness must otherwise proceed from a correct understanding of the decision-maker’s task. It is for that reason that I have considered the issues raised in the first and second grounds of appeal to be subsumed in the broader issue raised in the third.

38    A decision under s 108 of the Act does not involve the exercise of a discretion in the strict sense. Rather, s 108 calls for a conclusion to be made on a mixed question of fact and law. Questions of law arise as to the proper construction of s 101 and s 108. Questions of fact arise as to whether the affected person has not complied with s 101 in the manner specified in the Notice. The fact finding task is necessarily evaluative in the sense that there may be a range of permissible conclusions reached in response to the same evidentiary materials.

39    Section 108 of the Act does not authorise the Minister to decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107. On this appeal, there is no contention that the Notice did not comply with s 107 of the Act. Nor was there a contention that the Authority determined that there was non-compliance in some manner other than that specified in the Notice given to the appellant. A ground of review alleging a breach by the Tribunal of the rules of procedural fairness at first instance was abandoned. It was not sought to be re-agitated on the appeal.

40    The appellant submits that whilst the particulars of the alleged non-compliance are to be described in the Notice, the range of materials available to the decision-maker is not restricted to the responses of the appellant. Subject to the decision-maker observing the rules of procedural fairness, that is undoubtedly correct. It may also be accepted that a decision made under s 108 may be affected by jurisdictional error if the decision-maker fails to have regard to a relevant consideration in a way that materially affects the outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ); Craig v South Australia (1995) 184 CLR 163 at [12] (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

41    However, there is nothing to suggest that the primary judge misunderstood the task of the Tribunal in the manner alleged in the first particular. The reasons of the primary judge contain no express or implicit conclusion that the Tribunal was obliged to confine itself only to that evidentiary material referred to in the Notice and the appellant’s evidence given in response to it. The primary judge otherwise proceeded from the correct premise that the task under s 108 was confined to determining whether there had been non-compliance with s 101 in the manner specified in the Notice, and in no other manner. The manner of non-compliance specified in this particular case was the giving of incorrect answers in response to questions 42, 43, 45 and 46 of the visa application form.

42    It was submitted that the Tribunal’s task was concerned solely with the correctness of the appellant’s answers in relation to objective facts. It was not permissible, Counsel submitted, for the Tribunal to enquire into the correctness of the appellant’s statements as to his state of mind. That limitation on the power was said to be a consequence of s 100 of the Act. It provides:

Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

43    On its proper construction, s 100 of the Act does not preclude an enquiry being undertaken into whether the appellant in fact had the state of mind he professed to have in 2012. Rather, its purpose is to make it clear that a person may provide an incorrect answer and so fail to comply with s 101 of the Act without having any subjective intention to be incorrect or untruthful. In cases where a person has unwittingly given an incorrect answer in support of his or her visa application, that circumstance would not prevent a finding of non-compliance. The circumstance that the person did not intended to give incorrect information would of course be relevant (and in some cases definitive) on the exercise of the discretion as to whether the visa should be cancelled under s 109 of the Act.

44    In the present case, the Notice issued to the appellant alleged that incorrect answers had been given as to matters affecting both his subjective state of mind, that is, his stated fear of persecution, and the objective basis for the fear. As explained in Chan, both questions were essential to his claim to be a refugee.

45    Next, it was submitted that it was impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time. Whether or not later events are logically capable of bearing on the correctness of answers given at an earlier time will depend in all cases on the subject matter of the enquiry, especially the nature and timing of the subsequent events. Here, the Tribunal had regard to two trips made by the appellant to Iraq occurring 16 and 26 months after the grant of the visa respectively. The two trips were assessed against the responses the appellant had given as to the reason for his feared harm, the places in Iraq where he had claimed that he was most at risk, and his statements as to the degree of the risk of harm as he subjectively perceived it to be. That the appellant had travelled to Iraq in the subsequent periods and stayed on each occasion for three months was plainly relevant to the enquiry as to whether the stated fear in 2012 existed at that earlier time, as were his stated reasons for travelling. That is so because the claimed fear was asserted to be the reason why the appellant was unwilling to return to his home country. The circumstance that the appellant had voluntarily travelled to Iraq in 2014 and 2015 was clearly relevant to ascertain whether the earlier unwillingness existed at the time it was claimed.

46    Next, it was submitted that the veracity of the appellant’s answers fell to be considered against all of the relevant circumstances, which included the fact that the appellant was a person who had been determined in 2012 to have the profile of a person who was at objective risk of harm. That determination had been made on the basis of the appellant’s personal characteristic as a former member of the Iraqi Army who had assisted Coalition forces, and an assessment of those circumstances against the large body of country information to which the original decision-maker referred when determining to grant the visa. The country information showed that persons having the appellant’s characteristics were exposed to a real chance of persecution for a Convention reason, assessed objectively. All of these contentions are accepted.

47    The appellant further submitted that the Tribunal had not had regard to that country information as it existed in 2012 in making its decision under s 108 of the Act. I do not accept that submission. The Tribunal’s reasons disclose an awareness of the security situation as it had previously existed in Iraq and an appreciation that the appellant was found in 2012 to have an objectively well-founded fear. The reasons of the delegate who had granted the visa in 2012 were before the Tribunal, and they contained a thorough examination of the country information reports.

48    It remains to consider the submission that the Tribunal’s decision was affected by legal unreasonableness in the sense I have described above. Before the primary judge, it was submitted that the Tribunal had illogically concluded that the two trips of three months duration evidenced the appellant did not fear persecution in 2012, especially in light of its remarks that had the trips been shorter, it may have concluded differently.

49    The primary judge rejected that argument for the reasons extracted at [25] above. There is no appealable error in that reasoning. The primary judge went on to identify an evident and intelligible basis for the Tribunal’s conclusion. His Honour did so at some length and in terms that I now respectfully adopt as the most convenient means of explaining why the third ground of appeal must fail:

80.    In this particular matter, the Tribunal was required to make a judgement in respect of the exactitude of answers provided by the applicant, in support of his successful application for a protection visa, in the context of what could be deduced from his subsequent behaviour in returning to Iraq.

81.    The Tribunal concluded that the original claims of risk must have been exaggerated to such a degree that they were liable to be characterised as being incorrect in nature because otherwise the applicant would not have returned to Najaf for such a lengthy period of time.

82.    The reasons of the Tribunal are lengthy. The Tribunal made reference to favourable and non-favourable aspects of the applicant’s case. It was aware he had assumed a false name. It did consider the reasons provided by the applicant as to why he had returned to Iraq and the length of each visit concerned. As such, it did evaluate the applicant’s case. In Gageler J’s terminology, in my view, the decision of the AAT did fall within a logically defensible range.

83.    I concede that another decision-maker may have given different weight to other factors raised by the applicant, such as the care he took on his return to Najaf and so that theoretically alternative decision-maker could have logically concluded that the applicant had taken appropriate steps to counteract the risk to which he was subject, which did not therefore result in the factual negation of the degree of risk, as he had characterised it in 2012, namely 99.9%.

84.    However, I am dealing with the actual decision-maker not a theoretical one. In my view, there is a defensible thread of logic which passes through the reasons of the AAT in this case. The Tribunal did not accept, given the extraordinary level of risk, detailed by the applicant in 2012, that he would have returned to Iraq, in the manner and for the length in which he did, in 2014 and 2015, if that original assessment of risk provided by him had been true.

85.    In 2012, in assessing the applicant’s claim for a protection visa, the ministerial delegate was required to assess the subjective level of the applicant’s fear that he would be subject to persecution if he returned to Iraq. In this context, the actions of the applicant in returning to Iraq are liable to assume relevance in the subsequent assessment of the veracity or otherwise of his statement of the level of his subjective fears, as they pertained to his safety in Iraq and Najaf in particular. His subjective assessment of this risk was extreme.

86.    The tenor of the applicant’s original position was that he was well known to extremist militia groups operating in Najaf, who knew both his name and what he looked like. As a consequence, he was liable to summary execution because it was well known, in Najaf, that he was a person who had been actively associated with the US Army.

87.    The Tribunal did not accept a person, subject to such a degree of risk, would expose himself to it willingly, for an extended period of time. That the applicant apparently had done so, albeit with some prophylactic precautions, necessarily rendered his original statements regarding the degree of risk fallacious.

88.    In my view, this was the issue that the Tribunal was required to assess, which it did. As such, in my view, it completed the jurisdictional task delegated to it both legally and reasonably. That another decision-maker, in theoretical terms, might conceivably have reached a different conclusion, by placing greater weight on other aspects of the applicant’s case, does not render the decision irrational or an abuse of the statutory power.

50    That analysis is an orthodox application of the principles to be applied on an application for judicial review involving allegations of unreasonableness affecting findings of fact. As the primary judge emphasised, a different decision-maker may well have placed more weight on factors favourable to the appellant, including the 2012 country information, and so determined that the appellant’s answers on this application form were correct at the relevant time, but that was not the only permissible outcome. There is no appealable error of the kind alleged in the third ground of appeal.

51    Of course, a person who claims to be unwilling to return to his or her own country because of a fear of being persecuted will not be proven incorrect merely because the security situation for that person in their home country changes at some point in time after a visa is granted. The question for the decision-maker must always be whether the visa applicant’s answers were correct at the time that they were given. It is true that in the present case, the security situation in Iraq had indeed changed after the appellant was granted the visa. Critically, however, that change in the security situation was not advanced by the appellant as the reason why he had travelled to Iraq in 2014 and 2015. The appellant did not explain the trips by saying that his earlier truthfully stated fears had since dissipated.

52    It is for that reason that leave will not be granted to introduce the fourth ground of appeal. The legal argument underlying the ground does not arise for consideration on the indisputable facts of the appellant's case. Whatever be the explanation for not advancing the ground in the proceedings at first instance, the ground enjoys insufficient prospects of success to warrant any further consideration on this appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; ATD18 v Minister for Home Affairs [2020] FCA 593 at [33] – [35]. In support of the application for leave, Counsel for the appellant submitted that the question of whether the appellant had given incorrect answers in his visa application form was a jurisdictional fact and that, as a consequence, the primary judge was not confined to the grounds and arguments raised by the parties in relation to it. The primary judge was free, Counsel submitted, to interpret s 101 as he saw fit and so was not confined to any interpretation favoured by parties. Counsel referred to Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors [2002] NSWSC 552 at [33] (Bell J, as her Honour then was); Coleman v Power (2004) 220 CLR 1 at [243] (Kirby J); Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [64] and Corporation of the City of Enfield v Development Assessment Commission (2000)199 CLR 135. Counsel submitted that the primary judge could and should have found the errors alleged in the notice of appeal (including the error alleged in the fourth ground) of his own volition and that the failure to do so amounted to an appealable error.

53    It is not necessary to express a view as to the correctness of these submissions. Leave was not required in relation to the first and second grounds and, as I have said, the fourth ground was founded on a factual proposition that did not exist in the appellant's case. There is no factual foundation to suggest that the primary judge could and should have identified the jurisdictional error there asserted of his own volition. Consideration of the legal questions raised by Counsel’s submissions may be deferred to a case where the outcome depends upon it.

54    I will hear the parties as to costs.

Associate:

Dated:    14 May 2020