FEDERAL COURT OF AUSTRALIA

BIL18 v Minister for Home Affairs [2020] FCA 1367

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

WIGNEY J:

1    The appellant is an Iraqi national whose application for a Temporary Protection visa was refused by a delegate of the first respondent, the Minister for Home Affairs. That decision was affirmed by the second respondent, the Immigration Assessment Authority, upon review pursuant to the “fast track” review process in Pt 7AA of the Migration Act 1958 (Cth). The respondent unsuccessfully challenged the Authority’s decision in the Federal Circuit Court of Australia, alleging that the Authority failed to exercise lawfully its review jurisdiction. The appellant has appealed to this Court from that decision.

2    The appeal essentially raises two issues. The first issue is whether the Circuit Court erred in failing to find that the Authority acted unreasonably, in a legal or jurisdictional sense, in failing to consider exercising, or failing to exercise, its discretion under s 473DC of the Act to get new information in relation to an aspect of the appellant’s case. The second issue is whether the Circuit Court erred in failing to find that a part of the Authority’s reasoning process concerning potentially corroborating documentary evidence was irrational or illogical.

Background

3    The appellant entered Australia by sea in May 2013 in circumstances which made him an “unauthorised maritime arrival” as defined in s 5AA of the Act. He was interviewed by an officer of the then Department of Immigration and Citizenship in June 2013. A documentary record of that interview records that, when asked why he left his country of nationality, the appellant gave the following answer:

I am not happy there, I was accused of something I did not do and in addition to that the situation in Iraq is the reasons for me to leave basically.

What were you accused of?

I was accused by a private informer that I am terrorist and I am innocent, when were you accused, 2004, (client clarified 2012 not 2004), by a secret informer, I think he maybe he belongs to one of the parties or belongs to the government.

What terrorist act were you accused of?

It happened to many people they accused you and the government taken to prison and he told the government something bad about me and they arrested me and then they freed me, I was at home and they came and took me to prison and investigated everything about me and then they let me go, I cannot remember how many days, it was only a short time, unsure of time frame, a prison in Al Bathaa area and then they moved me from Al Bathaa to Al Nasria and they let me go from Al Nasria to back home, between 35-40 days.

4    In answer to a separate question concerning whether he had ever been arrested or detained by the police or security organisations, the appellant gave the following response:

What were you accused of?

I was accused by a private informer that I am terrorist and I am innocent, when were you accused, 2004 (client clarified 2012 not 2004), by a secret informer, I think he maybe he belongs to one of the parties or belongs to the government.

What terrorist act were you accused of?

It happened to many people they accused you and the government taken to prison and he told the government something bad about me and they arrested me and then they freed me, I was at home and they came and took me to prison and investigated everything about me and then they let me go, I cannot remember how many days, it was only a short time, unsure of time frame, a prison in Al Bathaa area and then they moved me from Al Baatha to Al Nasria and they let me go from Al Nasria to back home, between 35-40 days.

When they came to arrest me in 2012, I do not know when they came and inform about me.

Other than what you have already told me is there any other reason?

No.

5    On 17 August 2016, an officer of the Department of Immigration and Border Protection determined that the “bar” on the appellant applying for a protection visa which would otherwise have applied to him as an unauthorised maritime arrival did not apply and the appellant was invited to apply for a Temporary Protection (subclass 785) visa. The appellant accepted that invitation and applied for such a visa on 19 October 2016. His reasons for claiming protection were set out in a statutory declaration made by him which was lodged together with the application. The statutory declaration relevantly included the following claim:

My problems in Iraq started in around April 2012 when I was arrested by the Iraqi police accusing me of being a terrorist, they charged me under section 4 of The Terrorism Act, I was at home in Bat’ha when they came and arrested me, I was taken to Al bat’ha police station, while I was at the police station, special team from the anti terrorism squad came and questioned me, they said that they have specific information provided by a secret informant that I was involved in a terrorist activities, they did not elaborate about the details, they just said that these secret information cannot be revealed however they think that I was involved in the bombing of January 2012 in Bat’ha which led to many being killed or wounded,

[A]fter the investigation was concluded, I was transferred to Nasiryah prison, I was kept there for almost 40 days, after that I was put in front of trial judge who acquitted me because there was no evidence whatsoever about my involvement in any terrorist activity, I was acquitted on 26-5-2012.

6    The appellant also submitted, along with his statutory declaration, a copy of a document in the Arabic language together with its English translation. The translation indicated that the document was signed by the Chief Judge of the Thi Qar Criminal Court in Iraq and set out certain orders that had been made by that court on 26 May 2012 in respect of two accused, one of which appeared to be the appellant. The orders also included the following:

There is not enough evidence to prove [t]he charges levelled against both the first and the second accused as per Section 4/1, Section 2/7, Anti-Terrorism Act, 2005, and in view of clauses 47, 48, and 49 of the penal code, the court decided to negate the charges against them and set them free immediately unless they are wanted for any other case. Thus their charge of possessing arms and explosives has been quashed.

7    The appellant made various other claims in support of his visa application, including: claims concerning the way he was treated by the local community after his release from prison; rumours about him which related to him fighting with Sunni Muslims which were allegedly circulated in the community; the alleged monitoring of his family residence by members of the militia; and the perception that he was a Sunni, or had an association with Sunni groups or with Saudi Arabia or other Gulf States. It is unnecessary to consider those claims as the findings that were in due course made about them did not feature significantly, or at all, in the appellant’s review application and are not directly relevant to this appeal.

The Delegate’s Decision

8    The appellant was interviewed by a delegate of the Minister in respect of his protection visa application on 2 June 2017. On 6 July 2017, the delegate refused the appellant’s application because the delegate was not satisfied that the appellant met the central criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act.

9    It is unnecessary to consider the delegate’s reasons in any great detail. It suffices to note that the delegate accepted as credible a number of the appellant’s claims, including: his claims about his arrest by the Iraqi police in April 2012, on suspicion of being involved in the terrorist attack in Batha in Iraq in January 2012; the fact that he was charged and remanded in police custody for 40 days; and the fact that he appeared before the Thi Qar Criminal Court and was acquitted of all charges on the basis that there was not enough evidence. The delegate was not, however, satisfied that, upon his release from prison, the appellant was blamed by members of his community for the January 2012 terrorist attack, or that he was discriminated against or mistreated by the community because he was thought to be a Sunni Muslim, or that he was of any adverse interest to the Iraqi government or militia groups. The delegate also rejected various other factual claims advanced by the appellant in support of his application.

The Fast Track rEVIEW Process Under Pt 7AA Of The Act

10    The appellant was a “fast track applicant” as defined in s 5 of the Act because: he was an unauthorised maritime arrival who had entered Australia on or after 13 August 2012, but before 1 January 2014, and was not taken to a regional processing country; was a person to whom the Minister had given a written notice under s 46A(2); and had made a valid application for a protection visa. The decision to refuse the appellant’s protection visa on the basis that he did not meet the criteria for such a visa was accordingly a “fast track decision” as defined in s 5 and a “fast track reviewable decision” as defined in s 473BB of the Act.

11    It followed that the Minister was required by s 473CA of the Act to refer the decision to refuse the appellant’s protection visa application to the Authority. The Secretary of the Department was also required by s 473CB to provide certain material, referred to as the “review material”, to the Authority. The Authority was required to review the decision pursuant to s 473CC of the Act.

12    Division 3 of Pt 7AA of the Act contains provisions in relation to the conduct of a review by the Authority.

13    Relevantly, for present purposes, s 473DA provides that Div 3 of Pt 7AA, together with ss 473GA and 473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

14    Sections 473GA and 473GB are not relevant to the issues raised by this appeal.

15    Section 473DB of the Act provides, in effect, that the review conducted by the Authority is a review “on the papers”. It is in the following terms:

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

16    Sections 473DC and 473DD provide for the circumstances in which the Authority may seek and consider “new information”. They are in the following terms:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

17    Section 473DF sets out some requirements regarding the timing and manner by which the Authority can seek new information, whether in writing or by interview.

18    Subsection 473FA(1) provides that the Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is “efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. Subsection 473FA(2) provides that the Authority, in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”.

19    Unlike ss 353 and 420 of the Act, which deal with the review of different decisions (that is, not “fast track reviewable decisions”), s 473FA does not provide that, in reviewing a decision, the Authority is required to “act according to substantial justice and the merits of the case”.

The Authority’s Decision

20    On 21 February 2018, the Authority affirmed the delegate’s decision not to grant the appellant a protection visa: Statement of Decision and Reasons.

21    The Authority’s reasons indicated that it had regard to the material given to it by the Secretary under s 473CB of the Act. It also stated that it had received “new information” from the appellant in the form of a statutory declaration and a copy of a news article. The Authority concluded that there were exceptional circumstances to justify considering that new information pursuant to s 473DD of the Act.

22    There was, however, no indication in the Authority’s reasons that it had exercised, or considered exercising, its discretion under s 473DC to get any other new information.

23    The critical finding made by the Authority in respect of the appellant’s application was that his claims concerning his arrest and subsequent detention in 2012 lacked credibility and veracity. The Authority was accordingly not satisfied that those events had occurred. The Authority gave three main reasons for arriving at that finding.

24    The first reason was that the appellant had given very limited and, in some respects, inconsistent information concerning his arrest when first interviewed and asked about his reasons for leaving Iraq. The Authority’s reasoning in that regard was as follows (Reasons at [25]):

As discussed, when asked why he left Iraq during the entry interview, the [appellant] said that he had been accused of something he did not do. He said that this, as well as the situation in Iraq, was ‘basically’ the reason why he left Iraq. Given the [appellant’s] later claims that he was accused by police of involvement in the January 2012 Al Batha bombing and was tortured to force him to confess his involvement, and his provision of a document indicating that he was charged with possession of arms and explosives, I find it difficult to understand why, when asked to explain what he was accused of during the entry interview, the [appellant] replied only that he had been accused of being a terrorist, and when asked what terrorist act he was accused of, replied only that a person had told the government something bad about him. As mentioned, according to the record of the interview, the [appellant] indicated that there was no other reason for his departure from Iraq and, at the end of the interview, indicated that there was nothing else he wished to mention.

25    The second reason was that the Authority doubted that the document which was purportedly signed by the Iraqi judge was genuine or provided any real or significant corroboration of the appellant’s claims. The Authority reasoned as follows in that regard (Reasons at [26]):

The purported court document provided by the [appellant] does not refer to the Al Batha explosion or to any other specific terrorist attack. It does not refer to any accusation that the [appellant] was a member of the Islamic State of Iraq and the Levant (ISIL) of any other armed Sunni group. I note that there is information before me to suggest that counterfeit documents and fraudulently obtained documents are commonly and cheaply available in Iraq. Even if I were to accept that this document was genuine, it is of limited corroborative value in relation to the [appellant’s] claims that he was accused of involvement in the January 2012 explosion in Al Batha and held and beaten during a 35 to 40 day period, and / or that he was perceived to be Sunni or to be associated with Sunnis. In view of the matters discussed, the existence of this document does not outweigh my concerns with the [appellant’s] evidence relating to his claimed arrest and detention.

(Footnote omitted.)

26    The third reason was, in effect, that the Authority did not consider that the appellant’s account of the reasons for his arrest or detention was plausible. The Authority referred (Reasons at [27]) to information which indicated that Iraqi security forces were known to have arrested Sunni Muslims for sectarian reasons and had civil activists and others arrested for political reasons. The Authority noted, however, that it had not accepted that the appellant was perceived to be Sunni, or to be associated with armed Sunni groups, and that the appellant himself had not said that he had belonged to any groups or parties or that he had any enemies in Iraq. The Authority reasoned as follows in relation to the plausibility of the appellant’s claims (Reasons at [29]):

Where a person is the subject of an anonymous or secret false accusation, it is understandable that they may not know who made the accusation against them or why they did so. However, even accepting that some baseless arrests on terrorism charges occurred in the relevant period, I find it difficult to accept that the [appellant], a Shia casual labourer and long standing resident of Al Batha, with no political profile and no apparent enemies, would be the subject of a false accusation that he was involved in an attack targeting Shia pilgrims. I find the proposition that a person of his profile would be randomly accused of involvement in a terrorist attack targeting Shia pilgrims for which an armed Sunni group was suspected to be responsible in order to advance the career of a secret informant, implausible. Even if he was the subject of such a baseless accusation, it is hard to accept that he would be arrested and charged on this basis some three or four months after the attack in circumstances where that attack was thought to [be] part of a series of attacks in Iraq perpetrated by an armed Sunni groups and police action to arrest a number of Sunni insurgents had occurred on the same day. I note that I have not accepted that the [appellant] was perceived to be associated with Saudi Arabia or any other Gulf State, or that he was perceived to be Sunni because of his name.

27    The Authority concluded as follows in relation to the appellant’s claims concerning his arrest and detention (Reasons at [30]):

Considered separately, the concerns discussed in relation to the [appellant’s] evidence regarding his arrest and detention in connection with anti-terrorism charges may not lead to a conclusion that his claims in this respect lack credibility. However, when the [appellant’s] evidence is considered as a whole, these concerns lead me to question the veracity of his claims. I am not satisfied, on the evidence before me, that the [appellant] was arrested and detained by anti-terrorism police for any reason in 2012. I do not accept that the [appellant] was suspected by police, or any member of the community, of involvement in the 5 January 2012 bombing in Al Batha, of involvement in any other act of terrorism, or of involvement with or sympathy for any armed Sunni group.

28    It is unnecessary to consider the Authority’s findings and reasons considering other aspects of the appellant’s claims for protection. The appellant’s grounds of review in the court below, and his appeal grounds in this Court, do not concern those findings. It suffices to say that the Authority did not accept that the appellant was believed or perceived to be Sunni, or to be associated with any Sunni group or to be associated with Saudi Arabia or any Gulf State. The Authority was ultimately not satisfied that the appellant had a well-founded fear of persecution in Iraq, or that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm if he returned to Iraq. He accordingly did not meet the criteria for a protection visa.

Proceedings In The Circuit Court

29    The appellant’s case that the Authority’s decision was invalid for jurisdictional error ultimately relied on three grounds. Those three grounds were, in summary, as follows.

30    First, he contended that it was legally unreasonable for the Authority not to exercise its power under s 473DC of the Act to obtain certain “new information”. In the appellant’s submission, the Authority should have exercised that power so as to give him an opportunity to comment on its concerns in relation to the claims which the delegate had accepted, including his claim that he had been arrested, questioned and charged by the Iraqi police in January 2012. The appellant also contended that the Authority should have obtained new information about the provenance and authenticity of the document said to have been issued by the Thi Qar Criminal Court.

31    Second, he contended that a part of the Authority’s “reasoning process” was “irrational or illogical in a manner that constituted jurisdictional error”. The appellant’s arguments in that regard focussed on the Authority’s finding that the document purportedly issued by the Thi Qar Criminal Court was “of limited corroborative value” in relation to his claims that he was accused of involvement in the January 2012 explosion in Al Batha.

32    Third, the appellant contended that the Authority erred in a jurisdictional sense by placing significant weight on the fact that the appellant did not specifically refer to elements of his main factual claims during his initial entry interview.

33    The primary judge rejected each of the appellant’s three review grounds and dismissed his application: BIL18 v Minister for Home Affairs & Anor [2019] FCCA 1481 (Judgment). Unfortunately, however, some aspects of his Honour’s reasoning are far from pellucid.

34    In relation to the appellant’s first ground, the primary judge noted, correctly, that the relevant statutory scheme does not require the Authority to seek further information and that the review will generally be undertaken on the material that was before the delegate: Judgment at [15]. His Honour next referred (Judgment at [16]) to the decision of the Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12, where it was noted (at [72]), that the fast track regime in Pt 7AA of the Act did not require the Authority to notify the referred applicant that it was considering taking a different view, adverse to the applicant, to that taken by the delegate, or require the Authority to give the applicant an opportunity to respond to specific reservations it had about the applicant’s case.

35    The primary judge distinguished the appellant’s case from cases like Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32, where the Authority’s failure to exercise its discretion to obtain new information from the applicant had been found to be legally unreasonable: Judgment at [16]. In those cases, the Authority’s decision hinged on a finding that it was reasonable for the applicant to relocate, a finding which had not been made by the delegate. The significant distinguishing feature was that the Authority knew that it did not have, but that the applicant did have, material information in respect of the issue of relocation. The failure to exercise the discretion to get that information about relocation was accordingly found to be unreasonable.

36    The primary judge reasoned that in this case, the Authority had taken a different view about a “central claim” which had been “well addressed” in the delegate’s interview with the appellant and in the appellant’s statutory declaration which he provided to the Authority: Judgment at [23]. His Honour found that, although the Authority’s finding in relation to the central claim was different to the delegate’s finding, it was a finding that was “reasonably open” to the Authority to make: Judgment at [23]. In those circumstances, his Honour concluded that he was “not satisfied that any legal unreasonableness arose by failing to put to the [appellant] that the Authority was minded to make different findings on the central issues from those of the original delegate”: Judgment at [23].

37    As can be seen, the primary judge’s findings and conclusion concerning the appellant’s first review ground did not directly address or engage with the appellant’s argument that the Authority’s failure to exercise its discretion under s 473DC of the Act was legally unreasonable. That said, his Honour’s finding that it was not legally unreasonable for the Authority not to have put the appellant on notice that it may or would make different factual findings to those made by the delegate arguably amounted to an at least implicit rejection of the contention that it was legally unreasonable for the Authority not to exercise its discretion in s 473DC of the Act to obtain new information from the appellant.

38    As for the appellant’s second review ground, the primary judge did not appear to squarely address the appellant’s contention that the Authority’s reasoning process in relation to its finding that the document from the Thi Qar Criminal Court was of limited corroborative value was irrational or illogical. His Honour instead addressed whether it was legally unreasonable for the Authority not to put to the appellant that it was minded not to accept that document or that it corroborated his claims: see Judgment at [24]. The primary judge’s findings, in relation to that issue, appeared to hinge on his view that the document did not “have a material impact on the central finding of the Authority”: Judgment at [25]. It followed that his Honour was “not satisfied that the failure to put the proposed finding to the [appellant] was either necessary under the requirements [in Pt 7AA of the Act] or that even if it had been, that it would have made a material difference to the outcome”: Judgment at [25].

39    It is unnecessary to consider the primary judge’s findings in relation to the appellant’s third review ground in any detail. That is because the appellant’s grounds of review do not challenge any of the primary judge’s findings in relation to that review ground. It suffices to note that his Honour rejected the contention that the Authority placed undue weight on omissions in the appellant’s interview. His Honour found that those omissions simply “went into the mix”: Judgment at [27].

APPEAL GROUNDS AND SUBMISSIONS

40    The appellant’s amended notice of appeal raised two grounds of appeal.

41    The first ground of appeal was, in essence, that the primary judge erred in failing to find that the Authority made a jurisdictional error in unreasonably failing to exercise its discretion to get new information pursuant to s 473DC of the Act so as to allow the appellant to “respond to credibility concerns regarding the authenticity of the document from the Thi Qar Criminal Court”. The appellant contended that the Authority’s decision not to exercise its discretion to get new information in that regard was unreasonable because the appellant was not on notice of any concerns about the provenance or credibility of the document given that the delegate had appeared to accept it. The Authority’s finding concerning the document was, in the appellant’s submission, effectively a finding of document fraud which was destructive of his credit. The appellant contended that the effect of the Authority’s failure to exercise its discretion under s 473DC was that he was unable to “meet” that serious allegation.

42    The appellant also submitted that the primary judge failed to apply “binding authorities”, including DZU16, DGZ16 and CRY16, and misapplied another authority.

43    The appellant’s second ground of appeal was that the primary judge erred in failing to find that the Authority “fell into jurisdictional error with respect to its reasoning process” regarding the authenticity of the document from the Thi Qar Criminal Court. The appellant repeated the argument, which he first put in the Circuit Court, to the effect that the Authority’s reasoning process which led it to find that the document was “of limited corroborative value” was irrational or illogical. In the appellant’s submission, the primary judge misconstrued his argument in that regard, which amounted to “a constructive failure to exercise jurisdiction”.

44    The appellant’s argument that the Authority’s reasoning in relation to the corroborative value of the document from the Thi Qar Criminal Court was somewhat difficult to discern. It appeared to relate in some way to the Authority’s apparent unwillingness to accept the provenance or genuineness of the document. At various points, the appellant appeared to contend that, if the Authority found that the document was not genuine, that finding itself was irrational or illogical, though the basis of that contention was also somewhat unclear. Otherwise, the appellant’s argument appeared to be that if the document was genuine, it clearly corroborated some of his claims, even if it did lack some specificity. The Authority’s finding that it was of only limited corroborative value was therefore said to be irrational or illogical.

CONSIDERATION OF the APPEAL GROUNDS

45    The main complaint or grievance which appeared to lie behind both of the appellant’s grounds of review and the corresponding appeal grounds was that the Authority made adverse factual findings against him which differed from the findings made by the delegate. The appellant argued, in effect, that it was unreasonable in those circumstances for him not to have been given any opportunity to put additional evidence or submissions to the Authority in relation to those factual matters so as to assuage the Authority’s concerns about them. That appeared to be the main basis of his contention that the Authority’s failure to exercise its discretion to get new information about those matters was legally unreasonable. It also appeared to be the implicit or underlying basis of his argument that the Authority’s reasoning process in relation to those factual issues was irrational or illogical.

46    It is perhaps understandable that, having persuaded the delegate about his central claims, the appellant felt aggrieved that the Authority in effect rejected those claims and did so “on the papers”; that is, without giving him a further hearing or giving him any direct opportunity to address the Authority about his claims. Unfortunately for the appellant, however, the statutory scheme in Pt 7AA of the Act effectively compels the Authority to determine a review on the papers other than in exceptional circumstances. The mere fact that the Authority’s findings may differ from those of the delegate is not necessarily an exceptional circumstance. To make out jurisdictional error on the part of the Authority, it was necessary for the appellant to demonstrate more than that the Authority made different factual findings to those made by the delegate and more than that he disagreed with those findings.

Ground one – Did the Authority unreasonably fail to exercise its discretion to get new information?

47    As noted earlier, the primary judge did not directly engage with or address the appellant’s contention that the Authority’s failure to consider exercising its discretion, or its failure to exercise its discretion in s 473DC of the Act to get new information, was legally unreasonable. Nor did his Honour give any, or any detailed consideration to the statutory scheme in Pt 7AA of the Act and the applicable principles in relation to the Authority’s discretion to get new information. Rather, his Honour approached the appellant’s arguments by considering whether it was legally unreasonable for the Authority not to “put to” him that it was “minded to make different findings” to those made by the delegate: see Judgment at [23]. His Honour concluded that it was not.

48    It is not particularly fruitful to give any further consideration to the primary judge’s reasoning in that regard. The more pertinent question, given the specific ground of review raised by the appellant, is whether there was any merit in the appellant’s contention that it was legally unreasonable for the Authority to fail to consider exercising its discretion, or to fail to exercise the discretion, in s 473DB of the Act. Nevertheless, his Honour was undoubtedly correct to find that the Authority was not required to put the appellant on notice that it may make different factual findings to those made by the delegate. There is no provision in the relevant statutory scheme which obliged the Authority to put the appellant on notice that it may make a different finding to the delegate. But were the circumstances of the appellant’s case such that the Authority was effectively required to exercise its discretion under s 473DB of the Act so as to give the appellant the opportunity to provide new information about the factual matters about which the Authority made different findings?

49    The relevant statutory provisions in Pt 7AA of the Act were referred to earlier. The critical points to emphasise about the operation of those provisions are: first, s 473DB(1) indicates that the Authority must ordinarily conduct its review on the basis of the material provided to the Authority under s 473CB, which in general terms is the material which was before the delegate, without accepting or requesting new information; second, s 473DC(2) makes it clear that, while the Authority has a discretion to get new information, it does not have a duty to get, request or accept, any new information; and third, s 473DD provides that the Authority can only consider new information in exceptional circumstances.

50    There may be circumstances in which it would be legally unreasonable for the Authority to fail to consider exercising its discretion under s 473DC: see CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] and the cases there cited. There must, however, be some factual foundation from which it can be inferred that the Authority failed to consider exercising its discretion: see BVD17 v Minister for Immigration and Border Protection (2018) 261 FCR 35; [2018] FCAFC 114 at [41]. The mere fact that the Authority’s reasons do not explicitly refer to the fact that the Authority had considered exercising the discretion and decided not to does not necessarily support an inference that the Authority gave no consideration to the issue.

51    There is no basis for inferring that the Authority failed to consider exercising its discretion to get new information concerning the authenticity of the document from the Thi Qar Criminal Court. That is because it is clear that the Authority exercised its discretion to consider new information that the appellant provided in a statutory declaration that he sent to the Authority after the delegate’s decision: Reasons at [5]-[7]. There could therefore be no doubt that the Authority was aware that it had a discretion to get and consider new information. The appellant did not request the Authority to get new information about the authenticity or provenance of the document from the Thi Qar Criminal Court. Nor did the Authority have any duty to request any such new information from the appellant, even though it ultimately arrived at a different conclusion to the delegate about the authenticity of the document. The available inference, in all the circumstances, is that the Authority considered, but decided against, exercising its discretion to get any new information from the appellant other than the specific new information that the appellant provided in his statutory declaration.

52    Perhaps more significantly, there is no basis for concluding that any failure by the Authority to consider exercising its discretion to get new information about the authenticity of the relevant document, or any decision by the Authority not to exercise its discretion, was legally unreasonable. A failure by the Authority to consider the exercise of the discretion in s 473DC(1) does not necessarily amount to an error, let alone a jurisdictional error: DPI17 v Minister for Home Affairs (2019) 269 FCR 134; [2019] FCAFC 43 at [37]-[39].

53    The appellant advanced two reasons why it should be concluded that the Authority’s failure to exercise its discretion to get new information about the authenticity of the document was unreasonable. The first was that the delegate had accepted the authenticity of the document and the appellant was not put on notice that the Authority might not do so. The second was that a finding of “document fraud” was a serious allegation. Neither of those contentions provides a basis for concluding that the Authority acted legally unreasonably in failing to get new information about the document.

54    As for the first contention, as has already been noted, there is nothing in the statutory scheme in Pt 7AA of the Act to suggest that the Authority is obliged to notify a referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. It must follow that the mere fact that the Authority is considering taking a different view of the material before the delegate does not oblige the Authority to request, or consider requesting, new information from the referred applicant. The “requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review”: FGC17 v Minister for Home Affairs [2019] FCA 559 at [40].

55    As for the second contention, as discussed in the context of ground two, it is not entirely clear that the Authority made an unequivocal finding that the appellant had committed “document fraud”, though it is clear that the Authority doubted the authenticity of the relevant document for various reasons. Even putting that issue to one side, the mere fact that the Authority is considering making a serious adverse factual finding against a referred applicant would not alone oblige the Authority to obtain new information about the subject matter of that adverse finding. That is all the more so where that subject matter was addressed before the delegate, where there is nothing to suggest that the referred applicant was able to give any additional information about that subject matter that was not given to the delegate, and where there is nothing to suggest that the Authority was in any way “disadvantaged in comparison with the delegate” in relation to making a finding about the relevant factual issue: FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39].

56    In the appellant’s case, there was nothing to suggest that the appellant was able to give any further information to the Authority about the authenticity of the document which was said to be from the Thi Qar Criminal Court. Indeed, there was nothing to suggest that there was any new information of any sort that bore on that issue. The appellant had every opportunity before the delegate to address the authenticity of the document. There was nothing to suggest that the Authority was disadvantaged in any way, as compared to the delegate, in terms of considering and deciding that issue. There was and is, therefore, no basis for concluding that the Authority’s failure to exercise its discretion to get some new unspecified information about the authenticity of the document was in any way unreasonable.

57    The appellant contended, on appeal, that the primary judge failed to apply “binding authorities”, being the decisions in CRY16, DGZ16 and DZU16, and misapplied the decision in FGC17. There is no merit in that contention. The primary judge referred to each of those cases. His Honour correctly distinguished CRY16 and DZU16, which were both cases where the Authority made findings about relocation in circumstances where that issue was not fully dealt with before the delegate. The decision in DGZ16 did not assist the appellant and the basis upon which it was said that the primary judge did not apply or correctly apply that decision was unclear. As for FGC17, the primary judge simply cited that decision as authority for the proposition that the Authority is not obliged to invite a referred applicant to provide comments about a particular factual matter simply because it proposed to overturn a positive factual finding made by the delegate in relation to that matter. While the facts and circumstances of FGC17 were distinguishable from this case, that proposition was nevertheless relevant and applicable to the circumstances of this case.

58    It follows that the primary judge was ultimately correct to effectively reject the appellant’s contention that the Authority’s failure to exercise its discretion to get new information about the authenticity of the document from the Thi Qar Criminal Court was legally unreasonable. Ground one in the notice of appeal is accordingly not upheld.

Ground two – Were the Authority’s findings concerning the court document irrational or illogical?

59    It may be accepted that an administrative decision which is based on illogical or irrational reasoning or findings may be legally unreasonable and therefore not lawfully made within jurisdiction: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [129]-[131] (per Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72] (per Hayne, Kiefel and Bell JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 at [35].

60    What is clear, however, is that “illogicality” or “irrationality” in this context must mean something more than emphatic disagreement with the reasoning or findings: SZMDS at [129]. If “probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [131].

61    For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]. The “critical question” whether an administrative decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds, “should not receive an affirmative answer that is lightly given”: SZMDS at [40] (per Gummow ACJ and Kiefel J). A high degree of caution must be exercised before concluding that a finding is irrational or illogical in order to ensure that the Court does not embark impermissibly on “merits review”: SZMDS at [96]; SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; [2015] FCA 1089 at [14]-[15].

62    Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577; [2010] FCAFC 159 at [83]-[84]; SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78; [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Authority’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276; [2013] FCA 566 at [66]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [64]-[67].

63    It should finally be observed, in this context, that in considering whether an administrative decision maker’s reasons or exercise of discretion was the product of, or was materially affected by, illogical or irrational reasoning or factual findings, the decision maker’s reasons should not be the subject of over-zealous scrutiny: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272.

64    The appellant’s arguments concerning the Authority’s findings about the authenticity of the document from the Thi Qar Criminal Court were somewhat confused and confusing. Ultimately, he appeared to argue that both the Authority’s finding that the document was not genuine and its finding that the document was of only “limited corroborative value” were irrational or illogical. As for the finding that the document was not genuine, the appellant’s arguments relied on the fact that a finding of document fraud was a serious finding and that the appellant should not be held responsible for its lack of specificity. As for the finding concerning the corroborative value of the document, the appellant contended that while the document did not prove his case, if accepted as genuine it was clearly corroborative of important elements of his case.

65    The primary judge again did not appear to squarely or directly engage with or address the appellant’s arguments concerning the Authority’s findings concerning the document from the Thi Qar Criminal Court and its corroborative value. His Honour appeared to focus instead on the issue of materiality. Be that as it may, his Honour was nevertheless correct to reject the appellant’s case that the Authority’s findings in respect of this issue demonstrated jurisdictional error. While the Authority’s findings concerning the document from the Thi Qar Criminal Court might perhaps be fairly said to be not entirely pellucid, they were not irrational or illogical or demonstrative of jurisdictional error.

66    While the Authority did not make any explicit or express finding that the document which was said to be from the Thi Qar Criminal Court was a counterfeit or fraudulent document, when the Authority’s reasons are read fairly and as a whole, it is tolerably clear that it was not satisfied, in all the circumstances, that the document was a genuine document. The Authority gave essentially three reasons for why it was not satisfied about the genuineness of the document.

67    The first reason was that the document lacked specificity and did not marry-up with the appellant’s own evidence concerning his arrest and detention. In particular, it did not refer to the Al Batha explosion or any specific terrorist attack, or refer to any accusation that the appellant was a member of ISIL or any other armed Sunni group: Reasons at [26]. Rather, the document referred only to the fact that the appellant had been charged with possessing arms and explosives: Reasons at [25].

68    The second reason was that there was independent country information which suggested that counterfeit documents and fraudulently obtained documents are commonly and cheaply available in Iraq: Reasons at [26]. Contrary to the appellant’s submissions on appeal, that country information was before the delegate. The Authority also noted that the copy of the document which the appellant had provided was of “poor quality” and that it was “not possible to make out the image or symbol contained in the letterhead”: Reasons at [24]. That was perhaps indicated that it was not a genuine document.

69    The third reason was, in effect, that the Authority was not satisfied that the appellant’s evidence concerning his arrest and detention was consistent, reliable or credible (see in particular Reasons at [20]-[23] and [30]) or that his account of what had happened to him was plausible: Reasons at [29]. The Authority was accordingly not satisfied, on the evidence before it, that the appellant had been arrested or detained: Reasons at [30]. If the Authority did not accept the appellant’s evidence concerning his arrest and detention, it must logically follow that there were reasons or a basis to doubt the provenance and genuineness of a document proffered by the appellant which purported to corroborate his claims.

70    There is nothing irrational or illogical about the Authority’s findings or reasons for not being satisfied that the document purporting to have been issued by the Thi Qar Criminal Court was a genuine document. While minds may differ and different decision makers may have arrived at different findings on the evidence, that does not make the findings or reasoning irrational or illogical. That is all the more so given the degree of caution that must be exercised by a reviewing court when considering arguments concerning irrationality or illogicality so as to guard against merits review.

71    The Authority’s observation that even if it accepted that the relevant document was genuine it was in any event “of limited corroborative value” must be read in the context of its reasons for not being satisfied that the document was genuine: Reasons at [26]. What the Authority was saying, or endeavouring to say, was that, given the issues concerning the consistency, reliability and plausibility of the appellant’s account of his arrest and detention, it was not prepared to accept the appellant’s evidence concerning those matters, and not prepared to accept that the appellant was arrested, charged and detained, despite the existence of the supposedly corroborating document. The existence of the document did not “outweigh [the Authority’s] concerns with [the appellant’s] evidence relating to his claimed arrest and detention”: Reasons at [26]. It was in that context that the Authority noted that the document itself did not refer to a number of the elements of the appellant’s claims.

72    There is nothing irrational or illogical about that reasoning. It may of course be accepted that if the document was genuine it did corroborate at least one aspect of the appellant’s story; that he had been arrested, charged and detained in January 2012. The Authority did not suggest otherwise. The problem for the appellant was that the Authority did not accept his evidence or the veracity of his claims and did not accept that the document from the Thi Qar Criminal Court was genuine. It should also be noted, in this context, that once it is accepted that the Authority had found that it was not satisfied that the document was genuine, its reasoning concerning whether the document was of only limited corroborative value was in any event effectively immaterial. It follows that, even if it could be concluded that there was an element of irrationality or illogicality concerning that reasoning, it would not in any event follow that the Authority erred in a jurisdictional respect.

73    It follows that, while the primary judge may not have directly engaged with the appellant’s argument that the Authority’s reasoning concerning the document from the Thi Qar Criminal Court was irrational or illogical, his Honour was nevertheless correct to reject the review ground which made that allegation. While the primary judge’s reasoning in relation to that ground may be somewhat questionable, the appellant nevertheless failed to establish that the Authority’s findings and reasoning concerning the document purporting to be from the Thi Qar Criminal Court were demonstrative of jurisdictional error by the Authority.

74    Ground two of the notice of appeal must accordingly be rejected.

CONCLUSION AND DISPOSITION

75    The primary judge was correct to dismiss the appellant’s contentions concerning jurisdictional error on the part of the Authority. There was and is no merit in the appellant’s contention that the Authority acted unreasonably in failing to exercise its discretion to get new information concerning the genuineness of the document which purported to be issued by the Thi Qar Criminal Court. Nor was there any merit in the appellant’s contention that the Authority’s reasoning concerning the genuineness of that document, or its corroborative value, was irrational or illogical. The primary judge accordingly did not err in dismissing the appellant’s review application.

76    The appeal must accordingly be dismissed with costs.

Associate:

Dated:    24 September 2020