FEDERAL COURT OF AUSTRALIA

CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 673

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This appeal concerns the cancellation of the appellant’s Subclass 866 (Protection) visa, granted on the basis that the appellant was a stateless Bidoon from Kuwait.

2    The appeal is from a decision of a judge of the Federal Circuit Court of Australia (FCCA), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (delegate) to cancel the visa: CWX18 v Minister for Immigration & Anor [2019] FCCA 2369.

3    The dismissal followed upon the FCCA judge’s refusal to grant leave to the appellant to rely on an amended application, where the appellant abandoned the grounds in the original application.

Competency of appeal

4    The Minister contended that the appeal was incompetent because the appellant required leave to appeal from the FCCA’s decision and had not sought that leave.

5    The notice of objection to competency was filed late but, even so, the Court must address the question of competency as an aspect of its duty to consider its jurisdiction: Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; (2018) 361 ALR 8 (Plaintiff S164/2018) at [8].

6    By s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), an appeal shall not be brought from a judgment referred to in s 24(1) that is an interlocutory judgment unless the Court or a judge gives leave to appeal. A judgment of the FCCA under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) is taken to be an interlocutory judgments for the purposes of s 24(1A) of the FCA Act.

7    By s 17A(2) of the FCCA Act, the FCCA may summarily dismiss proceedings in certain circumstances.

8    The Minister contended that the case is analogous to two recent decisions of this Court, being BXU16 v Minister for Immigration and Border Protection [2018] FCA 1897 (BXU16) and AXX16 v Minister for Home Affairs [2019] FCA 190 (AXX16).

9    In BXU16 at [2], Lee J considered an appeal following the refusal of leave to file an amended application in the FCCA. The FCCA dismissed the application for review of a decision of the Immigration Assessment Authority because the grounds of the substantive application were not pressed. His Honour stated:

In truth, it is this interlocutory order which is the real subject of complaint by the appellant (although the consequences of the interlocutory order were to lead to the dismissal of the proceeding before the primary judge which is also the subject of complaint, this consequence having flowed from the dismissal of the amendment application). Any challenge made to the decision of the primary judge to refuse the application for leave to amend is an appeal in respect of which leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The appellant, pursuant to FCR 35.13, had 14 days to file such an application.

10    At [3], Lee J recorded that the appellant “did not demur from the characterisation of the application as primarily an application for leave to appeal from a decision which was a matter of practice and procedure”. Further, at [27], his Honour concluded that the appropriate order was to refuse the application for leave to appeal.

11    In AXX16, the Court upheld a notice of objection to competency where the FCCA had refused leave to amend an application for judicial review and consequently dismissed the unamended application.

12    At [19], Derrington J recorded that the matter had been listed for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (FCCA Rules) but had proceeded by way of a hearing of an application for leave to amend the application. At [24], his Honour stated that an appeal from an interlocutory order refusing leave to allow an amendment requires leave under s 24(1A) of the FCA Act, citing BXU16 at [2]. His Honour concluded, at [35], that, in order to succeed, the appellant required leave to appeal from the decision of the FCCA judge not to grant leave to amend the application for review. His Honour declined to grant leave because there was no merit in the proposed ground of appeal.

13    By his notice of appeal, the appellant appeals from “the whole of the judgment” of the FCCA, which comprised the refusal of leave to rely on the amended application, the consequential dismissal of the application and the costs order made against him.

14    The Minister did not suggest that the hearing at which the FCCA judge dismissed the appellant’s application was a show cause hearing. A dismissal following such a hearing is an interlocutory order: FCCA Rules r 44.12(2).

15    The dismissal of the application was not expressed as a summary dismissal pursuant to r 13.10 of the FCCA Rules. Nor did the FCCA judge’s reasons state that the dismissal was made on the basis of his Honour’s satisfaction of one of the preconditions to an order for summary dismissal under r 13.10.

16    Nor does it appear that the dismissal was made pursuant to r 13.07 of the FCCA Rules, which provides for disposal by summary judgment.

17    In my view, the legal effect of the dismissal of the application was to determine on a final basis the appellant’s right to seek judicial review of the AAT’s decision. The dismissal occurred after a hearing which appears to have been a final hearing, albeit the appellant abandoned the grounds of review stated in his application. The Minister did not attempt to explain in what sense the dismissal of the application and the accompanying costs order did not finally dispose of the appellant’s rights in the FCCA proceeding.

18    I am satisfied that the appeal in this case is competent, being an appeal from a judgment of the FCCA within the meaning of FCA Act s 24(1)(d), not being an interlocutory judgment within the meaning of s 24(1A), founded upon a challenge to the interlocutory decision to refuse leave to rely on the amended application.

19    To the extent that this conclusion involves a departure from the reasoning in BXU16, I am satisfied that I should not follow that decision because it is clearly wrong if it implies that leave to appeal may be required from a decision of the FCCA which finally determines an application to that court for judicial review.

Background to visa cancellation

20    The appellant had been granted the protection visa in June 2011. As part of his protection visa application made in about May 2011, the appellant stated that, in the lead up to a national election in Kuwait in mid-2009, he engaged in political activism in relation to the rights of Bidoons in Kuwait and, as a result, was arrested, detained for five months and tortured (Kuwait activism claim). That claim was accepted.

21    In June 2013, the appellant’s wife lodged a partner visa application for herself and her four children. She provided various Iraqi identity documents for herself and the children in support of the application.

22    On 9 December 2016, the Department of Immigration and Border Protection (Department) sent the appellant a notice pursuant to s 107 of the Migration Act 1958 (Cth) (Act) entitled “Notification of intention to consider cancellation under section 109 of the Migration Act 1958 (Cth)” (s 107 notice). The s 107 notice stated that the Minister’s delegate considered that the appellant did not comply with s 101(b) of the Act in his protection visa application, and also that the delegate considered that there had been non-compliance with s 101(a).

23    Section 101 provided relevantly:

A non-citizen must fill in or complete his or her application form in such a way that:

(a)    all questions are answered; and

(b)    no incorrect answers are given or provided.

24    Under the heading “Evidence of grounds for cancellation”, the s 107 notice set out facts concerning the appellant’s protection visa application and information described as “adverse information” in relation to the appellant’s nationality. The notice then stated:

13.    In light of above information and evidence, it appears that you are not stateless and were not stateless at the time of your Protection visa application. I consider that it is most likely that you are an Iraqi citizen and were so at the time of your Protection visa application.

14.    Your Protection visa was granted on the basis that you satisfied the Minister that you engaged Australia’s protection obligations under the Refugees Convention. You have consistently maintained that you are stateless and not entitled to citizenship in any country. This claim was fundamental to the determination that you are a person to whom Australia has protection obligations. As the incorrect information provided was material to this determination it appears you may not have engaged Australia’s protection obligations.

15.    Therefore I consider that you have not complied with section 101(a) of the Act as you did not answer the question 4 – “What other names have you been known by?” in Form 866C - Application for an applicant who wishes to submit their own claims to be a refugee. According to your children’s Iraqi identity cards and citizenship certificates, you are also known as XXXXXX.

16.    I also consider that you have not complied with section 101 (b) of the Act as you have provided incorrect answers to the following questions in your Protection visa application:

Form 866B - Persons included in this application and family composition.

•    In response to question 9 – “Are there any members of the same family unit who are NOT in Australia at the time of application? “ You stated that your wife and children are stateless. As per your wife and children’s Iraqi identity cards and citizenship certificates which are only issued to Iraqi nationals, it is apparent that they are all Iraqi citizens.

Form 866C - Application for an applicant who wishes to submit their won claims to be a refugee

•    In response to question 19 - “Your citizenship at birth” you stated “stateless - Bidun, Kuwait”. This is incorrect because as per your children’s Iraqi identification cards and official Iraqi citizenships certificates which are only issued to Iraqi citizens, I consider you are an Iraqi citizen and were so at the time of your Protection visa application.

•    In response to question 21 - “Do you hold any other citizenship or are you a national of any other country? You ticked “No”. This is incorrect because as per your children’s Iraqi identification cards and citizenships certificates, it appears you are an Iraqi citizen.

•    In response to question 22 - “Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence?” you ticked “No”. This is incorrect as given the available information presented to me, I consider that you are an Iraqi citizen. Therefore, you do have right to enter or reside in Iraq. Departmental record also shows that you have travelled to Iraq on two occasions between 2012 and 2013.

•    In response to question 42 - “Why did you leave that country?” you stated in your “Statement of XXXXXXX XXXXXX” that you are stateless Bidoon; You do not have a right to citizenship or a right to reside in any country; You had experienced extreme disadvantages and discriminations as a stateless Bidoon in Kuwait; You had involved in an “enlightenment campaign” for Bidoon issues and as a result you were arrested and tortured by the authorities. As now I have considered that you are an Iraqi citizen and not a stateless person, you do have same rights as bestowed to all Iraqi nationals. It further underlines your adverse profile claims in your Protection visa application. As such, I consider your response to question 42 contains incorrect answers [sic].

25    On 19 April 2017, the appellant’s visa was cancelled. The delegate’s decision to cancel the visa was made on the basis of his finding that the appellant did not comply with s 101(b).

AAT decision

26    On 11 May 2018 the AAT affirmed the delegate’s decision to cancel the appellant’s visa.

27    The AAT summarised the ground for cancellation as being that “the appellant claimed in his visa application that he and his immediate family were stateless and not entitled to citizenship of any country which was incorrect and concluded that the [appellant] was an Iraqi citizen”.

28    At para 14 of its decision record, the AAT set out the particulars of non-compliance with s 101(a) and s 101(b) in the s 107 notice, including the following:

In response to question 42 - “Why did you leave that country?” He stated in his “Statement of XXXXXXX XXXXXX” that he was a stateless Bidoon; he did not have a right to citizenship or a right to reside in any country; he had experienced extreme disadvantages and discriminations as a stateless Bidoon in Kuwait; he had campaign” for Bidoon issues and as a result he was arrested and tortured by the authorities [sic].

29    The AAT found that there was non-compliance with s 101(a) and s 101(b) of the Act by the appellant in the manner described in the s 107 notice.

30    In reaching its conclusion, the AAT found the appellant’s evidence to be unreliable. This finding was preceded by several adverse findings about the evidence given by the appellant to the AAT including:

(1)    The appellant claimed that the form of his birth certificate shows that he is Bidoon and that it is different from a birth certificate for a Kuwait but this claim was not supported by the certificate on its face (para 24 of decision record).

(2)    The appellant’s evidence concerning how he obtained visas to enter Iraq in 2012 and 2013 was inconsistent with the Iraqi government’s requirement that a person travelling on an Australia-issued travel document of the kind issued to the appellant for those trips had to apply for a visa at the Iraqi embassy or consulate in Australia (para 30 of decision record).

(3)    The appellant’s evidence about his lack of involvement in his wife’s application for a partner visa was implausible and inconsistent (para 37 of decision record).

(4)    The appellant was avoiding responsibility for, or association with, documents that were inconsistent with the information he had provided during his visa application (para 38 of decision record).

(5)    The appellant’s evidence about the reason his wife went to Al-Samawa, Iraq, from Kuwait, was inconsistent. His evidence about his going to Al-Samawa was inaccurate and deliberately vague (para 39 of decision record).

(6)    It was implausible that the appellant’s pregnant wife would have remained in Kuwait after he left in September 2010 for more than nine months with their four children, and given birth to the youngest child there in April 2011, if she had been subjected to the ill-treatment he claimed was because of him (para 40 of decision record).

31    At paras 41 and 42 of its decision record, the AAT found:

41.    The applicant’s evidence about obtaining visas when he arrived in Iraq is contrary to the requirements that a visa is obtained from the Embassy or a consulate in Australia. His claim to have burned his 2013 Titre de Voyage at the suggestion of a friend when his new one was issued in 2017, is implausible.

42.     The Tribunal found the applicant’s evidence to be unreliable. He had many opportunities to explain why the Iraqi documents had been provided but failed to give a satisfactory answer.

32    On a fair reading of the decision record, the Tribunal’s assessment of the appellant’s evidence as unreliable relates to his evidence generally. The finding is made at the conclusion of a detailed consideration of the appellant’s evidence before the AAT, commencing at para 23 of its decision record. I do not accept the appellant’s submission that the finding relates only to the AAT’s consideration of the appellant’s evidence about the Iraqi documents provided by his wife in support of her partner visa application, particularly where paras 40 and 41 address the different topics of the wife’s location after September 2010 and the appellant’s entry into Iraq.

33    In relation to the appellant’s claim of statelessness, the AAT made the following findings:

46.    The Tribunal accepts that the applicant’s wife described the applicant as “stateless” in her application and he maintains his claim to be a stateless Bidoon from Kuwait, however, while there may be Bidoons in Kuwait who are stateless, the Tribunal does not accept that any of the applicant or any member of his family belongs to that group. It finds that the applicant is a citizen of Iraq and was when he applied for the visa.

47.    … The applicant claimed that his family, including his wife, was stateless. That she had Iraqi citizenship is inconsistent with his claim that she was stateless. If she was stateless, the Iraqi documents she provided, [a]part from the passports, were false. He could have said so. He could have said that she had obtained Iraqi citizenship since 2010. He did not. He provided no satisfactory explanation.

48.    In finding that the applicant is an Iraqi citizen, the Tribunal has taken into account that in 2007-2008, the applicant was a documented Bidoon residing in Kuwait, based on the Review Card issued by The Executive Committee for Illegal Residents’ Affairs and was entitled to the rights and benefits conferred by that status. The country information shows that the information on the card is consistent with the annual card issued by that committee. The Tribunal does not accept the submission that it was not such a card. The country information shows that the individual circumstances of Bidoon in Kuwait vary greatly and that documented Bidoon suffer discrimination but that it is unlikely such a person could demonstrate that return to Kuwait would put the person at a real risk of persecution on the basis of being Bidoon alone. The Tribunal does not accept that because he was a documented Bidoon in Kuwait in 2007-2008, he was not an Iraqi citizen then or in 2011.

49.    It does not accept that because the Iraqi documents are dated 2012 and the passports 2013 and came into existence after the applicant provided the subject information, they do not demonstrate that the information was wrong at the earlier time. The applicant has given no explanation to support that contention. He has not maintained that the Iraqi documents are false.

34    At para 50 of its decision record, the AAT found that the applicant did not comply with s 101(a) of the Act by his failure to state that he is also known by the name used on the children’s Iraqi citizenship certificates and Iraqi personal identification cards.

35    At paras 51 and 52, the AAT concluded:

51.    The Tribunal finds that the applicant did not comply with s 101(b) of the Act in the way described in the s 107 notice, in the manner particularised in the notice.

52.    For these reasons, the Tribunal finds that there was non-compliance with s 101(a) and (b) by the applicant in the way described in the s 107 notice.

36    Having found that the appellant did not comply with s 101(a) or s 101(b) of the Act, the AAT considered whether his visa should be cancelled. Having regard to a range of circumstances, the AAT concluded that the visa should be cancelled. Accordingly, it affirmed the delegate’s decision.

FCCA proceeding

37    In June 2018, the appellant sought judicial review of the AAT’s decision.

38    In August 2019, the appellant filed an amended application without leave.

39    The amended application contained four new grounds and abandoned the grounds that had previously been relied upon. Only the first proposed new ground is relevant to the appeal. That ground stated:

The applicant stated on a number of occasions as part of his protection visa application that, in the lead up to a national election in Kuwait in 2010, he engaged in political activism in relation to the rights of Bidoons in Kuwait and as a result he was arrested and detained for five months and tortured (the Kuwait Activism Claim). The Administrative Appeals Tribunal, in its decision dated 11 May 2019, did not consider

a)    the truthfulness or otherwise of the Kuwait activism claim or

b)    the fact that in 2010 the department, after interviewing the applicant, accepted the Kuwait activism claim was true.

If the Kuwait activism claim was true, this would affect the assessment of whether the applicant was an Iraqi citizen at the time. In the circumstances, the Tribunal’s failure to consider the truthfulness or otherwise of the Kuwait activism claim is a jurisdictional error. Alternatively, if the Federal Circuit Court construes a sentence in the Tribunal’s decision as a finding rejecting the Kuwait activism claim. Then, the Tribunal made this finding:

(a)    without having regard to the evidence before it concerning the Kuwait Activism Claim; or

(b)    without giving proper and genuine consideration to this evidence.

In either case, this is a jurisdictional error.

40    In his Honour’s reasons for judgment, after summarising the AAT’s decision, the FCCA judge addressed the appellant’s application to file the amended application for judicial review.

41    After setting out the proposed new grounds and the Minister’s submissions concerning their merit, the FCCA judge lamented “the unsatisfactory way in which this matter has been prepared and come on for hearing”, stating that both the court and the Minister had been “seriously disadvantaged and inconvenienced”. His Honour noted that he was required to consider the merits of the proposed grounds to determine whether to grant the appellant leave to rely upon them.

42    The FCCA judge then addressed the four proposed new grounds of review in turn. His Honour’s reasons in relation to the first proposed ground were as follows:

[45]    This ground asserts jurisdictional error by failing to deal or properly deal with the applicant’s claims concerning the events in Kuwait. The applicant’s counsel asserts a wide range of errors in what could be described as a scattergun approach. It should be noted that the Tribunal’s reasons must not be read with too fine an eye for error. Allegations of irrationality or illogicality in the reasoning must be extreme before jurisdictional error will be established. In circumstances where the outcome is based on a number of findings and the impugned finding is but one that may have led to the ultimate conclusion, jurisdictional error will not be made out; see DSY16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at paragraph [19].

[46]    I am reasonably satisfied the Tribunal did consider and deal with the claims made concerning Kuwait. The Tribunal did so by finding the applicant was an Iraqi citizen and not a stateless Bidoon. I agree with the first respondent’s submission that a fair reading of the Tribunal’s reasons indicates it rejected the applicant’s evidence as unreliable and that the applicant did not comply with s 101(b) of the Act. The Tribunal found that the applicant was not stateless. The claims of activism were, to my mind, of little moment and could not have impacted on the ultimate outcome.

[47]    There is no jurisdictional error. There was nothing unreasonable, irrational or illogical in the reasoning process of the Tribunal, given the totality of the evidence before it. I am not satisfied that any evidence was overlooked or that the claim were not given proper and genuine consideration.

Appeal from refusal to grant leave to rely on amended application

43    The FCCA judge’s alleged errors were made in the course of his Honour’s consideration of whether to grant leave to the appellant to rely on an amended application for judicial review. His Honour ultimately refused to grant leave, on the ground that the amended application lacked merit. The appellant did not dispute that lack of merit is a proper basis for the refusal of leave to file an amended application for review.

44    There is a single ground of appeal in the notice of appeal, expressed to concern the FCCA judge’s failure to find error in the AAT’s finding that the appellant was an Iraqi citizen when he applied for a protection visa in Australia. In particular, the appellant challenges:

(1)    the finding of the FCCA judge that the “Kuwaiti activism claim” was immaterial to the AAT’s decision; and

(2)    the FCCA judge’s reasoning that the AAT dealt with the “Kuwait activism claim” by finding that the appellant was an Iraqi citizen at the time he applied for a protection visa.

45    The FCCA judge’s decision to refuse leave involved the exercise of discretion. Accordingly, on appeal, the appellant is required to demonstrate an error in the exercise of that discretion, explained in House v R [1936] HCA 40; 55 CLR 499 at 505 relevantly, as follows:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

46    In effect, the appellant’s argument was that, in reaching his Honour’s conclusion, the FCCA judge had erred in failing to find that the appellant had grounds to argue that the AAT had failed to have regard to, and give proper and genuine consideration to the evidence before it. Specifically, the appellant argued that the FCCA judge erred in failing to find that it was arguable that the AAT had not given proper and genuine consideration to the “Kuwaiti activism claim” , in reaching the conclusions at paras 51 and 52 of its decision record set out at [35] above.

47    The Minister noted the following relevant principles:

(1)    A decision maker is not required to refer to every aspect of every issue that is before them. Although a lack of consideration may be inferred from a decision-maker not expressly dealing with a matter in their reasons, such an inference will “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: Appellant WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]. Matters may be dealt with in findings of greater generality, or through a factual premise upon which a contention relies being rejected.

(2)    Even if corroborative evidence is not considered, this will not result in jurisdictional error unless it can be shown to have been sufficiently cogent, central and substantial as to have been capable of affecting the jurisdiction of the Tribunal: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [97]-[112]; SZWCC v Minister for Immigration and Border Protection [2015] FCA 1402 at [35]-[41].

(3)    It has been recognised that “there is a need to exercise caution in relation to the use of the expression ‘proper, genuine and realistic consideration’ because there is a danger that it may draw the Court into an impermissible merits review”: Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [38]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [32].

(4)    Whilst the AAT must demonstrate an active intellectual process in relation to an application, this does not require the AAT to refer to every piece of evidence or contention that is before it. “Nor does it require the Tribunal to provide lengthy or detailed reasons” in relation to those matters that it deals with: Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [39].

48    The duty to give “proper, genuine and realistic consideration” to a matter applies to a matter to which the decision-maker is required to consider: Singh v Minster for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [30]. In Singh, the Full Court explained at [36]-[37]:

[36]    The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter.

[37]    In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

(1)    First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed.

(2)    Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

(a)    the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;

(b)    it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

(c)    a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

49    A decision-maker will fail to give proper and genuine consideration to evidence in a manner which involves jurisdictional error where the decision-maker makes “uncritical references” to important evidence without “actually consider[ing] what significance and weight it deserved”: NAJT v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [212] (Madgwick J, Conti J agreeing).

50    Where there is ambiguity or uncertainty as to the manner in which a decision-maker has dealt with an applicant’s claim, the Court may find on a judicial review application that the decision-maker has not properly and genuinely considered the claim. For example, in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 at [29]:

Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the [decision-maker] summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable a conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.

Appellant’s submissions

51    The appellant’s submissions addressed at length the matters and circumstances which led to the grant of his protection visa. In particular, the appellant referred to the following matters:

(1)    His detailed account of discrimination he faced as a Bidoon in Kuwait at an unauthorised arrival interview in October 2010.

(2)    He was born in Kuwait, lived in Kuwait all his life, had no close family members who lived in Iraq, stated at his entry interview that he had never lived for more than one month in any country apart from Kuwait and, on fleeing Kuwait in September 2010, did not pass through Iraq. The appellant submitted that these are not background characteristics of a person who, according to a finding of the AAT, was an Iraqi citizen.

(3)    In a statement dated 20 November 2010, the appellant detailed the discrimination he suffered as a Bidoon up to May 2009 and made claims concerning his political activism in the lead up to the Kuwaiti national council election of 2009, and consequential arrest, detention and torture in Kuwait up to October 2009.

(4)    On 23 November 2010 the appellant was again interviewed. A decision by the Minister’s delegate dated 28 January 2011 records part of the evidence the appellant gave at the interview. As recorded in the delegate’s decision, the delegate considered that the appellant’s oral evidence concerning his claims was “coherent”, “consistent”, “spontaneous” and “detailed”.

(5)    On 17 December 2010 the appellant’s agent provided a post-interview submission to the Department. By this time, the appellant had provided to the Department a green card from Kuwait in his name issued on 1 October 2007 and valid until 31 March 2008.

(6)    On 28 January 2011 the Department issued a notification of refugee status assessment outcome which concluded that the appellant “should be recognised as a refugee”. The decision-maker stated in part:

The claimant’s statements at the RSA interview were generally coherent, consistent with his entry interview statements and RSA request statements and lacking in obvious exaggeration … After discussing his evidence at the RSA interview, I am satisfied that the claimant has provided a genuine account of his life in Kuwait. His responses were sufficiently detailed and spontaneous to satisfy me he was recalling information that was consistent with him speaking from personal experience.

The decision-maker added:

Based on the claimant’s consistent statements … I accept the claimant’s version of events surrounding his detention and treatment while detained … In February 2012 and August 2013 the appellant travelled to Iraq for about four and six months respectively.

52    On 23 January 2017 the appellant’s agent sent a response to the s 107 notice. The appellant referred to the contents of that response, which explained the availability of identification documents in Iraq which are genuine but contain incorrect information. For example, the Landinfo report published in December 2015:

(a)    for passports – explains how “a passport can be genuine … but may contain incorrect information” and “the occurrence of false personal data in genuine passports may be an indication of inadequate verification against population registers and of fake breeder documents”; and

(b)    for nationality or citizenship certificates – explains how “a high percentage of nationality certificates” may be forged and others may be genuine but obtained by bribes.

53    The appellant also noted the finding of the delegate, in deciding to cancel his visa, that the appellant “may be Bidoon and had experienced harassment as a Bidoon in Kuwait.”

54    The appellant submitted that, from the time of his arrival in Australian waters in 2010, he made detailed claims concerning his history in Kuwait which had been accepted as credible. These included that:

(1)    He was born and resided in Kuwait until he departed Kuwait in September 2010 and made his way to Australia.

(2)    In the years before a national election in Kuwait in May 2010, he experienced significant discrimination and disadvantage as a Bidoon in Kuwait. As a result of the discrimination, in the lead up to the national election, he engaged in political activism in relation to the rights of Bidoons. As a result, he was arrested, detained for five months and tortured.

AAT decision record

55    The appellant acknowledged that it was “not … impossible” for the AAT to conclude that the appellant was an Iraqi citizen in 2011 (the relevant time for assessing the truthfulness in completing the Forms 866B and 866C).

56    However, the appellant argued that the AAT had erred in making that factual finding, from which it followed that he had not complied with s 101(b), by “failing to have regard to, and give proper and genuine consideration to the evidence before it, in arriving at its ultimate conclusion”.

57    The matters on which the appellant relied to contend that the AAT had erred in this respect were:

(1)    The AAT’s failure to advert to the matters identified in [54] above in the context of the finding that the appellant was a citizen of Iraq;

(2)    The absence of consideration about how a person with the appellant’s background (born and lived in Kuwait all his life) might become an Iraqi citizen in the first place.

(3)    The absence of consideration about why the appellant would suffer discrimination in Kuwait as a Bidoon and engage in political activism in Kuwait in opposition to the discrimination, at the risk of arrest and imprisonment, if he was an Iraqi citizen.

(4)    The absence of consideration of the asserted fact that, if the appellant was an Iraqi citizen who experienced significant discrimination in Kuwait, one would expect him to move to Iraq.

(5)    The absence of evidence about whether a Bidoon in Kuwait who is an Iraqi citizen would experience the same discrimination as a Bidoon who is not an Iraqi or Kuwaiti citizen.

(6)    The sole reference by the AAT to the Kuwaiti activism claim at para 14 of its decision record, in summarising the alleged non-compliance with s 101(b);

(7)    The AAT’s failure to advert to the positive assessment of the appellant by the Minister’s delegate in assessing his protection claim.

(8)    The AAT’s failure to consider and assess the appellant’s specific claims of extreme disadvantage and discrimination.

(9)    At the Tribunal hearing, the AAT member did not discuss the Kuwaiti activism claim with the appellant.

58    The appellant noted that, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] the High Court, in considering s 430 of the Act, stated that the failure by a decision-maker to mention a matter in the s 430 statement may “entitle a court to infer that any matter not mentioned … was not considered by the tribunal to be material”, which in turn may reveal some basis for jurisdictional error. See also Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [43]-[72] (Kenny J) and [80]-[97] (Rares J).

FCCA judge’s reasons

59    The appellant argued that the AAT’s finding that he was an Iraqi citizen does not, without more, mean that the AAT considered and dealt with the appellant’s claims concerning Kuwait, let alone gave proper and genuine consideration to the claims. No paragraph of the AAT’s reasons for decision suggests that the AAT considered and dealt with the appellant’s claims concerning Kuwait. The FCCA judge erred in concluding otherwise.

60    Next, the appellant argued that the FCCA judge misconstrued the AAT’s finding as to the unreliability of his evidence.

61    Thirdly, the appellant contended that the FCCA judge erred in his assessment that the Kuwaiti activism claims were “of little moment and could not have impacted on the ultimate outcome”.

Minister’s submissions

62    The Minister submitted that the notice of appeal raised a single ground which concerned two findings of the FCCA judge, being the finding that the Kuwaiti activism claim was immaterial to the AAT’s decision and the finding that the AAT dealt with that claim by its finding that the appellant was an Iraqi citizen at the time he applied for a protection visa.

63    Accordingly, the Minister objected to any attempt by the appellant to raise additional grounds of appeal based on evidence about his birthplace or residence prior to arriving in Australia, and his claims of discrimination. In any event, the Minister contended that the AAT had regard to evidence regarding the appellant’s place of birth and residence in Kuwait.

64    The Minister submitted that the FCCA judge found, at [34]-[37] to [45]-[47] of his Honour’s reasons, that the activism claims had been dealt with through the AAT’s rejection of the appellant’s evidence as unreliable and findings that the appellant had not complied with s 101(b) of the Act. I do not agree with the FCCA judge made a finding to this effect. Paragraphs [34]-[37] of his Honour’s reasons summarise the Minister’s submissions to the FCCA. Paragraphs [45]-[47] are set out above.

65    The Minister contended that the AAT considered the appellant’s claimed background of discrimination within the context in which this claim was made (i.e. within the context of the appellant’s claims to have been a stateless Bidoon whose mistreatment spurred him towards activism, following which he developed an adverse profile and was mistreated by the authorities).

66    The Minister submitted that the AAT had referred to the appellant’s claims of political activism in its summary of the delegate’s decision (at para 14 of the decision record). The AAT expressly referred to the appellant’s claims to have campaigned for Bidoon issues and to have been “arrested and tortured by the authorities” in result. The AAT referred to the delegate’s conclusion that the appellant’s “adverse profile claims” were “undermined” by the conclusion that the appellant was not a stateless Bidoon, resulting in the finding that the appellant had provided “incorrect answers” for the purposes of s 101(b).

67    The Minister observed that the appellant’s claims of statelessness were the focus of the AAT’s decision.

68    The Minister also referred to the AAT’s finding (at para 17 of the decision record) that the appellant had maintained that he has always provided correct information about himself and his family and about his mistreatment in Kuwait because he is Bidoon. At para 18 of the decision record, the AAT recorded the appellant’s claim that his wife was harassed and interrogated about his whereabouts by Kuwaiti police.

69    The Minister submitted that, ultimately, a fair reading of the AAT’s decision indicates that the AAT considered that the appellant had been caught out. He had made various protection claims based on his alleged status as a stateless Bidoon. Those claims included his political activities in Kuwait. His wife then lodged a visa application contradicting what he had previously said about his family’s statelessness. This undermined the appellant’s core claim of statelessness. It also undermined his claim to have been spurred towards political activism and to have suffered in result. It is apparent that those claims were not accepted by the AAT, which found that the appellant did not comply with s 101(b) of the Act in the manner particularised in the s107 notice.

70    Within this context, the Minister submitted, it is unrealistic to suggest that the AAT may have accepted the appellant’s claims of statelessness had it given further consideration to his claims of activism. Those claims were not overlooked by the AAT. The appellant’s submissions do not meet the high thresholds of the errors that he alleges. Rather, they invite the Court to disagree with the weight given to this part of the evidence and the reasoning of the AAT. They thus seek impermissible merits review.

Consideration

71    The appellant’s case is squarely concerned with the legality of the AAT’s factual finding that the appellant is an Iraqi citizen..

72    The first issue for the FCCA judge was whether it was arguable that the “Kuwaiti activism claim” was relevant to that factual issue. The proposed ground of review asserted that, if the “Kuwaiti activism claim” were true, this would affect an assessment of whether the appellant was an Iraqi citizen at the time of his protection visa application.

73    The AAT plainly accepted that the appellant had significant links with Kuwait. At para 44 of its decision record, the AAT accepted that the documentation, provided by the appellant and showing he and his wife’s links with Kuwait, was genuine. The AAT also accepted that, in 2007-2008, the appellant was a documented Bidoon residing in Kuwait. The AAT did not accept that the appellant’s status as a documented Bidoon residing in Kuwait in 2007-2008 was inconsistent with a conclusion that the appellant was an Iraqi citizen either then or in 2011.

74    In his response to the s 107 notice, the appellant purported to set out a portion of the Iraqi constitution to the effect that, subject to law, Iraqi citizenship is conferred on anyone who is born to an Iraqi father or mother. Thus, on the appellant’s case, the mere fact of birth and residence in Kuwait is not necessarily inconsistent with Iraqi citizenship. Even so, it is arguable that the “Kuwaiti activism claim” may support a conclusion that the appellant is not an Iraqi citizen because, otherwise, he might have availed himself of some right as an Iraqi citizen to avoid the harassment and discrimination that he was experiencing in Kuwait.

75    On this basis, I accept that, in making its finding that the appellant was an Iraqi citizen, it was open to the AAT to have taken into account the “Kuwaiti activism claim”.

76    I disagree with the FCCA judge, to the extent that his Honour intended to say that the AAT’s finding that the appellant was an Iraqi citizen (and not a stateless Bidoon) evidences a consideration of the appellant’s “Kuwaiti activism claim”. The decision record does not reveal whether the AAT accepted the “Kuwaiti activism claim” as truthful, in whole or part, or whether it considered that the claim bore upon its finding that the appellant was an Iraqi citizen.

77    The AAT’s decision record does not state the particular reasons for its finding that the appellant was an Iraqi citizen, however, on a fair reading of the decision record, the finding was an inference drawn from one or more of the following findings on the basis of all of the available evidence:

(1)    The authentification of the appellant’s marriage contract stated that the appellant “resides in Al-Samawa” in Iraq.

(2)    The appellant had stayed in Iraq for four months in both 2012 and 2013, in circumstances where he did not produce his Australian government-produced Titres de Voyage for those trips and he gave evidence about how he obtained a visa to enter Iraq which was inconsistent with Iraqi government information.

(3)    The appellant’s evidence was unreliable, including as to his involvement in obtaining the Iraqi documents.

(4)    The appellant did not give a satisfactory explanation of the Iraqi documents, which (I interpolate) identified the children as Iraqi citizens and therefore as the child of an Iraqi father or mother. The documents also indicate that the children are not stateless, contrary to the appellant’s claim.

(5)    The Iraqi documents are genuine.

(6)    The appellant’s wife is a citizen of Iraq. Her Iraqi citizenship is inconsistent with the appellant’s claim that she was stateless.

78    The finding was made notwithstanding the findings that the appellant had genuine links with Kuwait and was a documented Bidoon in Kuwait in 2007-2008.

79    Ultimately, and on a fair reading of the whole of the decision record, it was open to the FCCA judge to conclude that the AAT did consider and deal with the claims made concerning Kuwait and that an argument to the contrary lacked merit. The AAT explicitly referred to the “Kuwaiti activism claim”, to his claim of mistreatment in Kuwait because he is Bidoon and to his claim that his wife was harassed and interrogated by Kuwaiti police. The AAT also stated that it had taken into account the written and oral submissions made on behalf of the appellant (para 36 of its decision record).

80    Accordingly, I do not accept that the FCCA judge erred in failing to accept that the appellant had a case that the AAT failed to consider the “Kuwaiti activism claim.

81    The FCCA judge’s observation that the claims of activism were “of little moment” is apparently addressed to the alternative contention that the AAT had not given give “proper, genuine and realistic consideration” to those claims.

82    Here, the question is whether it was arguable that the AAT’s references to the “Kuwaiti activism claim” revealed a failure to consider its significance and weight and thus to commit jurisdictional error. I accept that it was open to the FCCA judge to conclude that the “Kuwaiti activism claim” was not important evidence on the issue of the appellant’s Iraqi citizenship, particularly in the context of the AAT’s findings that the appellant had connections with Kuwait. It followed that the proposed ground of review, as expressed in the alternative, lacked merit.

83    Accordingly, I do not accept that the FCCA judge erred in finding that the proposed ground of review lacked merit.

Conclusion

84    It follows that the appeal must fail. Costs should follow the event.

Associate:

Dated:    21 May 2020