Federal Court of Australia

CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620

ORDERS

THE COURT ORDERS THAT:

1.    There be an extension of time within which to appeal.

2.    The appeal be allowed.

3.    Orders 2 and 3 of the judgment of the Federal Circuit Court given on 12 February 2020 be set aside and in lieu thereof it be ordered that:

(a)    The decision of the second respondent made on 14 May 2019 be set aside.

(b)    The matter be remitted to the second respondent for consideration and determination according to law.

(c)    The first respondent pay the applicant’s costs of and incidental to his amended application for judicial review.

4.    The first respondent pay the appellant’s costs of and incidental to his appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The appellant appeals from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 14 May 2019 that had affirmed a decision of a delegate of the Minister not to grant to the appellant a temporary protection visa (the visa) under the Migration Act 1958 (Cth).

2    The appellant, who is a citizen of Iraq, left Iraq for Australia in January 2013. He applied for the visa on 26 May 2016, after the lifting of the statutory bar preventing protection visa applications from boat arrivals. He claimed a well-founded fear of persecution if he was returned to Iraq. The basis of his claim included his father’s status as a former senior member of the Ba’ath Party and a former mayor in the Karbala area and the appellant’s Sunni religion and membership of the Al-Janabi tribe, all of which he claimed led to him being targeted by Shia militants.

3    The appellant attended interviews with the Minister’s delegate on 5 October 2016 and 7 November 2016. He also provided a statutory declaration made on 13 May 2016. The delegate refused the visa on 14 December 2016.

4    The Authority reviewed the delegate’s decision and affirmed it on 6 February 2017. That decision was then quashed by the Federal Circuit Court on 11 February 2019.

5    Upon remittal to the Authority, which was differently constituted, the appellant provided a second statutory declaration made on 26 February 2019 regarding developments in his family’s situation in Iraq since the time of the Authority’s first decision some two years earlier.

6    In his second statutory declaration, the appellant explained that his family and his uncle’s family in March 2017 had fled to Kirkuk in northern Iraq after a bomb had been placed at the rented house in Haswa where his family were then living that had killed his uncle. He further stated that his family continued to live in Kirkuk at the time of his second statutory declaration.

7    On 14 May 2019, the Authority again affirmed the decision of the delegate to refuse the visa. The appellant then sought judicial review of the Authority’s further decision in the Court below.

8    On 12 February 2020, the primary judge dismissed the appellant’s application for judicial review. The appellant appeals that decision, although he required an extension of time within which to appeal, which extension I granted at the commencement of the hearing.

9    For the following reasons, I would allow the appeal.

FACTUAL BACKGROUND

10    The appellant was born in a city in the province of Karbala in southern Iraq. But his most recent address in Iraq before coming to Australia was in Baghdad, where he lived between November 2012 and 12 January 2013. For over a decade up to November 2012, the appellant lived at an address in Karbala. The appellant completed his schooling in Karbala. And he had been employed at a location in Karbala.

11    In an entry interview conducted on 23 May 2013, the appellant provided details of his mother and father, both then at the time of that interview residing in Baghdad. He also provided details of his two sisters residing in Karbala and his five brothers residing in Baghdad.

12    As I have said, the appellant applied for the visa on 26 May 2016. Consistently with the information provided by the appellant at his entry interview, the appellant indicated that he had lived, attended school and worked, from birth to November 2012, in Karbala.

13    The appellant claimed to fear harm in Iraq because of his Sunni Muslim religion, his father’s status as a former Ba’ath party member and former mayor in the Karbala area, and the appellant being a member of the Sunni Al-Janabi tribe.

14    As I have said, the delegate refused the appellant’s visa application on 14 December 2016. The delegate found that he was not in any danger in Karbala. The delegate’s decision was referred for review by the Authority.

15    On 6 February 2017, the Authority affirmed the delegate’s decision. Relevantly, the Authority found that the appellant’s family had not left Karbala in 2007 as the appellant claimed, that the appellant had worked in Karbala all his life and had family and friends there, and that there was only a remote chance that the appellant would suffer harm in Karbala as a Sunni Muslim if he was returned there.

16    The Authority’s decision was quashed by consent orders made by the Federal Circuit Court on 11 February 2019 and referred back to a differently constituted Authority.

17    On 26 February 2019, the appellant’s representative provided the Authority with the appellant’s second statutory declaration and additional documents. Relevantly, in his second statutory declaration, the appellant claimed that:

(a)    his family moved from Karbala to Baghdad in 2007 to live with the appellant’s uncle;

(b)    the family was evicted from the uncle’s house in Baghdad in July 2015, and they then moved from there to Haswa, south of Baghdad;

(c)    in March 2017, his uncle was killed in Haswa; and

(d)    after that, the appellant’s remaining family members escaped the area to Kirkuk in northern Iraq.

18    On 17 April 2019, the Authority wrote to the appellant and invited him to comment on certain propositions that it had sourced from country information. In this invitation, the Authority referred to the situation in southern Iraq, which is where Karbala is located. The Authority explained the relevance of the information to its review.

19    On 1 May 2019, the appellant’s representative provided a submission to the Authority in response to the Authority’s invitation. The submission provided by the representative did not say in express terms that the appellant would not return to Karbala if he was returned to Iraq.

20    On 14 May 2019, the Authority again affirmed the delegate’s decision. The Authority accepted that the appellant and his family were of the Sunni Muslim faith. It accepted that the appellant’s father held the position claimed in the Ba’ath party and was the mayor of their area. The Authority also accepted that the family were well-known in their area, due to the father’s position and because they were members of the Al-Janabi tribe.

21    The Authority accepted that the appellant’s father was shot in the leg in 2007 by Shia militants identified as members of the Mahdi Army due to his Ba’athist links. But it did not accept that the father and family departed Karbala to reside in Baghdad in 2007 as claimed. Further, the Authority found that the appellant’s father and family remained in Karbala at least until 2013, and that neither the appellant nor his father were being sought by the Mahdi Army or any other Shia militia after the father was shot in 2007. Further, the Authority did not accept the appellant’s claims concerning incidents involving the Mahdi Army in 2009 and 2012. The Authority was not satisfied that the appellant’s father or his family were of interest to the Mahdi Army or anyone else after the father’s shooting in 2007. It was not satisfied that the appellant was the subject of any threats or attempts at extortion by the Mahdi Army or anyone else in 2009, 2012 or the intervening years, or that members of the Mahdi Army or anyone else tried to kidnap the appellant in 2012 for any reason. It did not accept that the Mahdi Army raided the appellant’s aunt’s home in Karbala looking for the appellant or his father. In summary, the Authority was not satisfied that the appellant was of any interest to the Mahdi Army for any reason.

22    Further, the Authority found that the appellant’s father was living in Karbala as at 2013. But it had no evidence that he and the family lived there after then, and accepted as plausible that sometime after 2013 the family moved in with the appellant’s uncle in Baghdad. Further, independent information before the Authority supported the proposition that the Asa’ib Al-Haq, a Shia militia, forced Sunni families to move out of their homes in mixed Sunni and Shia areas of Baghdad around that time. Accordingly, the Authority accepted that the family were evicted from the uncle’s home in Baghdad, and moved to a farm in Haswa in 2015.

23    Further, the Authority also accepted the appellant’s claim concerning his uncle’s death in Haswa in March 2017, but found that this was as a result of sectarian violence and did not give rise to a real chance of serious harm to the appellant, particularly if he was likely to return to Karbala.

24    Moreover, the Authority accepted that the appellant’s family had moved from Haswa to Kirkuk in 2017 after and as a result of the uncle’s death.

25    In summary, the Authority considered but did not accept that the appellant faced a real chance of serious harm in Karbala in light of those aspects of his profile and circumstances that it had accepted. The Authority found that past abuse and threats that the appellant had experienced because of his Sunni religion and his relationship to his father, a former Ba’athist, did not constitute serious harm. It found that the appellant had an aunt in Karbala, and that the family continued to have a home there. The Authority also accepted that the appellant had attained skills in performing a range of jobs in the past and it was not satisfied that the appellant would not be able to find accommodation and employment on return to Karbala.

26    Accordingly, the Authority was not satisfied that the appellant faced a real chance of any harm in Karbala at the time of its decision or in the reasonably foreseeable future.

27    Now before the primary judge, the appellant’s grounds in his amended application focused on the Authority’s finding that Karbala was the location that the appellant would return to if he returned to Iraq. The primary judge dismissed the amended application. It is not necessary to linger on his reasons.

GROUNDS OF APPEAL

28    By his amended notice of appeal, the appellant has raised the following grounds before me:

1.    The Federal Circuit Court erred in failing to find that the IAA’s finding that the appellant would return to Karbala was:

a.    irrational, in that it was inconsistent with the IAA’s other findings regarding the relocation of the appellant’s family to Kirkuk; or alternatively

b.    reached without giving proper consideration to the appellant’s claims regarding his family’s relocation to Kirkuk and the reasons for that move, in terms of identifying the place to which the appellant would return if removed to Iraq.

…

2.    The Federal Circuit Court erred in failing to find that the IAA’s failure to exercise or consider exercising its power under s 473DC(3) of the Migration Act to interview or get new information from the appellant in relation to the place to which he would return was unreasonable.

Particulars

a)    The appellant put on evidence, which the IAA accepted, claiming that his family had moved to Kirkuk to be safe from sectarian violence in March 2017, 5 months after the interview with the delegate.

b)    The IAA relied on the appellant’s evidence being unchanged since the interview that the family still owned a family home in Karbala and that [the] appellant’s aunt still lived there as the basis for its conclusion that the appellant would be returning to Karbala.

c)    The issue of the place of return had not been considered by the delegate.

d)    In those circumstances, it was unreasonable for the IAA to rely on supposedly unchanged evidence since the delegate interview for this finding without exercising its power to get new information regarding the place of return.

29    Let me deal with each ground of appeal in turn.

Ground 1: The finding that the appellant would return to Karbala

30    The appellant submits that the primary judge erred in failing to find that the Authority’s finding that the appellant would return to the former family home region of Karbala, notwithstanding the appellant’s evidence that the family had fled to Kirkuk, was affected by jurisdictional error.

31    Two alternative bases for jurisdictional error were pressed before me. First, it was said that the finding was irrational in that it was inconsistent with other findings. Second, it was said that the finding was reached without giving proper consideration to the appellant’s claims regarding his family’s relocation to Kirkuk and the reasons for that move, in terms of identifying the place to which the appellant would return if removed to Iraq.

32    Now it is well accepted, as said in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [45] per Tracey, Mortimer and Moskinsky JJ, that a decision-maker in assessing whether a person has a well-founded fear of persecution should identify the place to which that person was likely to return, and then assess the risks that would be faced in that place.

33    Further, in APE16 v Minister for Home Affairs [2020] FCAFC 93 at [51], Kenny, Wheelahan and Anastassiou JJ noted that the inquiry as to the place of likely return is not necessarily the same as identifying the person’s “home area”. So, “an [i]nquiry seeking to identify a “home area” should not take the place of, or distort, the [i]nquiry required by the statute, which is to identify the place to which the non-citizen is likely to return”.

34    These principles are not in doubt.

35    Now according to the appellant, the appellant’s circumstances and the evidence accepted by the Authority likely entailed that the appellant would be returning to a place other than the area that had historically been his “home area”.

36    Let me say something about the evidence before the Authority.

37    In his first statutory declaration, the appellant had provided evidence of his claims to fear harm upon return to Iraq. His evidence was that he had been living in Karbala to care for his aunt until late 2012. But towards the end of 2012, there was an incident in which his coffee shop was raided by members of the Mahdi Army, after which he fled to Baghdad. He stayed there for approximately one month before departing for Australia in January 2013.

38    Apparently the appellant’s family and his uncle’s family also moved to Baghdad at some time in or after 2013.

39    In July 2015, the appellant’s family and his uncle’s family were forced to relocate from Baghdad to Haswa, which is south of Baghdad, after being targeted by Shia militia members who forced Sunni families to move out of their homes in mixed Sunni and Shia areas of Baghdad.

40    Let me note again at this point that the appellant gave oral evidence in an interview with the delegate on 5 October 2016; there was also an additional interview with the delegate on 7 November 2016 for the sole purpose of determining the appellant’s religion. It is also to be noted at this point that the Authority, which made the decision on 14 May 2019, did not exercise its power to invite the appellant to an interview. I will return to this later when discussing ground two.

41    Following the delegate’s decision of 14 December 2016 and the referral of the review to the first Authority, on 25 January 2017 the appellant provided written submissions to the Authority. At that point, the appellant’s uncle had not yet been killed by militants and his family had not yet fled to Kirkuk from Haswa.

42    After the first Authority’s decision on 6 February 2017, which was quashed and remitted back to the Authority, in 2019 the appellant provided further evidence that there had been a dramatic change in his family’s circumstances since the first Authority’s decision two years earlier. That evidence included:

(a)    the appellant’s second statutory declaration;

(b)    a submission from the appellant’s representative dated 1 May 2019;

(c)    a translated death certificate for the appellant’s uncle’s death dated 10 March 2017; and

(d)    a translated letter of reference from the Ministry of Immigration and Displacement in Kirkuk confirming that the appellant’s father had been displaced from his former residence by armed groups and had been resident in Kirkuk since 15 March 2017.

43    In the appellant’s second statutory declaration, he explained how his family had been living with his paternal uncle in the Haswa area south of Baghdad since July 2015, having been forced out of their original home area by Shia militia. Then on 10 March 2017 the appellant’s uncle had been killed by a bomb that had been placed at the main door of the house in Haswa where the appellant’s family had been living. The family then fled to Kirkuk. They chose this location because it was a predominantly Sunni area and was not subject to significant fighting between the government and ISIS. Apparently, it was controlled by Kurdish forces at the time.

44    Accordingly, at the time that the appellant’s second statutory declaration was made, the appellant’s family and his uncle’s family had been living in Kirkuk since 15 March 2017 and remained there at that time.

45    Now the Authority accepted the appellant’s evidence in relation to the issues raised by the second statutory declaration and supporting evidence. The Authority:

(a)    accepted that the appellant’s uncle was killed in the manner claimed as a result of sectarian violence against Sunnis at the hands of a Shia militia;

(b)    accepted that the appellant’s family was living with the appellant’s uncle at the time his uncle was killed; and

(c)    accepted that the appellant’s family had fled to Kirkuk when the appellant’s uncle was killed and had been living in Kirkuk since March 2017, where they remained at the time of the Authority’s decision.

46    Let me now turn to the appellant’s principal criticisms of the Authority’s approach and analysis.

47    Despite having accepted the events that caused the appellant’s family to flee to Kirkuk, all of which occurred after the appellant’s interviews with the delegate and the submissions to the first Authority, the Authority found that the appellant would nevertheless likely return to Karbala.

48    That finding, so the appellant complains, enabled the Authority to dismiss the relevance of the serious incidents of harm that it accepted had been suffered by the appellant’s family since the appellant’s arrival in Australia. The Authority apparently was able to do so by asserting (at [40]) that:

The incidents of harm to the applicants family were in a different province to where the applicant will be returning, and occurred four and two years ago respectively and the situation in Iraq has changed since that time. I must consider whether the faces a real chance of harm on return to Karbala. I accept that: the applicant is Sunni; he is a member of the Al-Janabi tribe; his father is a former high ranking Ba’athist and Mayor of their area; and that the area to which he will be returning is a majority Shia area.

49    Importantly for present purposes, the basis of the Authority’s finding that the appellant would return to Karbala was that the appellant had been born there and lived there for 20 years, and that his oral evidence in his interview with the delegate (October 2016), more than five months before the events causing the family to relocate to Kirkuk (March 2017), indicated that “his family still have their family house in Karbala, and his aunt continues to reside in that province” (at [21]). Further, the Authority relied on the assertion that in the material provided to it in 2019 the appellant had not changed his oral evidence from the October 2016 interview. The Authority stated (at [21]):

I accept on the documentary and oral evidence before me that the applicant is a national of Iraq. He has provided evidence, which I accept, that his family are currently residing in Kirkuk, The applicant lived for one month in Baghdad prior to his departure from Iraq. However, he was born in Karbala in the southern governorates of Iraq and resided there for 20 years. His oral evidence at interview, which he has not changed in submissions to the IAA, was that his family still have their family house in Karbala, and his aunt continues to reside in that province.

On the evidence before me, I find that this is the area to which he would return in Iraq.

50    Now the appellant has made two points concerning ground one. Let me deal with the irrationality aspect first. I should note that it is well accepted that a decision will be affected by jurisdictional error where a finding that was material to the ultimate decision was arrived at after an irrational or illogical step in the reasoning, or where there is no logical connection between the evidence and the inferences drawn by the decision-maker. Such a finding will be irrational if it could not rationally be drawn from the evidence on which the decision-maker purported to rely or if the finding reaches beyond the material before it.

51    The appellant says that the Authority’s finding that the appellant would return to Karbala was irrational or illogical in light of the Authority’s own findings in other parts of the decision. The appellant points out the following.

52    The Authority found that the appellant’s family had fled their home area of Karbala sometime after the appellant left Iraq for Australia in 2013, finding that the appellant’s father and his family had remained in Karbala until at least 2013 and finding that sometime in or after 2013 the appellant’s family had moved in with the appellant’s uncle in Baghdad.

53    Further, the Authority accepted that after moving in with the appellant’s uncle in Baghdad some time in or after 2013, the appellant’s family and his uncle’s family were evicted again due to sectarian targeting in 2015 and moved to a farm in Haswa.

54    Further, the Authority accepted each family’s move to Kirkuk in 2017. The event in Haswa in March 2017 that killed the appellant’s uncle and caused them to flee to Kirkuk was described by the Authority as a targeted explosion at the family home.

55    Now according to the appellant, which I accept, the Authority did not have before it any up to date evidence regarding the ownership of the former family home in Karbala. Moreover, there was evidence before the Authority that even if the family still retained formal ownership of the home, they considered that they could not practically occupy it, having abandoned it in turn for Baghdad, then Haswa, then Kirkuk. I also accept this. Further, the appellant says that on the evidence accepted by the Authority, no member of the appellant’s family had lived at the former family home in Karbala since 2013, six years before the Authority’s decision. That also seems correct.

56    The appellant then says that the finding of the Authority that the appellant would return to Karbala, based on the assertion that the appellant had not changed his evidence that was given in the October 2016 interview that “the family still have their house in Karbala, and his aunt continues to live in that province”, is irreconcilable with the Authority’s findings that since the appellant left Iraq, the appellant’s family had twice been driven out of the places they were living due to violent acts of Shia militants, and that they had fled to Kirkuk rather than returning to the family’s former home area of Karbala.

57    Accordingly, the appellant says that the Authority’s finding that the appellant would return to Karbala was irrational or illogical in light of the Authority’s own findings in other parts of the decision record.

58    There is another aspect to the appellant’s irrationality ground. The appellant says that the finding that the appellant would return to Karbala was also irrational in the sense that it went beyond the evidence on which the Authority relied for it.

59    According to the appellant, the Authority’s assertion that the appellant had not changed the evidence that was given in the October 2016 interview disregarded the content and context of the appellant’s second statutory declaration. The thrust of his second statutory declaration was that his entire extended family had been uprooted by the March 2017 attack, in which the family’s home at Haswa was bombed and his uncle was killed, and that the family had fled to Kirkuk, which had been their home area from March 2017 until at least the time of the appellant’s representative’s May 2019 submission to the Authority.

60    The appellant says that it ought to have been clear to the Authority that the appellant considered that the significant events in March 2017 had overtaken his previous evidence about the location of his family, the nature of the threats that he and his family faced and the place to which he was likely to return if returned to Iraq.

61    Moreover, the appellant says that his silence in the May 2019 submission to the Authority in not correcting and updating each matter in his October 2016 interview, particularly on those matters that were overtaken by the events of March 2017 that were set out in his second statutory declaration, could not rationally support the conclusion that the appellant would return to Karbala.

62    Accordingly, the appellant says that the Authority’s finding, based only on the non-update of the October 2016 evidence about the family’s house and the whereabouts of the appellant’s aunt, went well beyond any conclusion that could rationally have been drawn from that circumstance. So, the appellant says that the Authority’s finding (at [21]) that the appellant would return to Karbala was not rationally open on the material before the Authority.

63    Let me now describe the second dimension to the appellant’s first ground of appeal, which is that the finding that the appellant would return to Karbala was made without proper consideration of the appellant’s 2019 evidence. Of course there is a considerable overlap between the ground of irrationality and the ground of a failure to give proper consideration to a party’s claims or submissions, as was observed in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] per Perram, Murphy and Lee JJ.

64    The appellant says that the Authority adopted an overly formalistic view of the appellant not having varied two specific statements from his October 2016 interview in his second statutory declaration. He says that in doing so, the Authority failed to have regard to the context of the second statutory declaration, and the submission and supporting evidence of the 2017 events they described, including by failing to appreciate the context of that evidence in overtaking the earlier evidence about the nature of the appellant’s links to Karbala and the consequences for identifying the place to which the appellant would return. Accordingly, the appellant says that the Authority failed to give proper contextual consideration to the whole of the appellant’s evidence in reaching the finding that the appellant would return to Karbala. And that failure constituted jurisdictional error.

65    I would reject the appellant’s arguments on ground one.

66    Whether a particular region is the area or place that the appellant will return to is a question of fact. And in my view, although it is a closely run thing, the Authority’s factual finding that the appellant would likely return to Karbala was reasonably open to the Authority for the reasons it gave.

67    Now illogicality or irrationality requires more than emphatic disagreement with the Authority’s reasoning or findings. The appellant must show that the Authority’s decision to affirm the delegate’s decision refusing the visa was one which no rational or logical decision maker could have arrived at on the evidence that was before the Authority. In my view the appellant has not demonstrated such illogicality or irrationality.

68    First, as to the alleged failure to consider the reasons the appellant’s family moved to Kirkuk, the Authority considered and found that this move was owing to sectarian violence, but that the incidents experienced by the family in Haswa did not evidence a real chance of harm to the appellant in Karbala.

69    Second, the reasons for why the family moved from Haswa to Kirkuk did not directly address the appellant’s return to Karbala. The Authority did not find that the appellant would return to Haswa. Further, the Authority also did not find that the family had fled or had been driven out of Karbala.

70    Third, it was not necessarily clear that the family’s move from Haswa to Kirkuk was significant to the location where the appellant was likely to return to in Iraq. Neither the appellant in his second statutory declaration nor his representative in the May 2019 submission, when addressing the family’s move to Kirkuk, expressly said that the appellant would relocate to Kirkuk on his return to Iraq.

71    Fourth and relatedly, the appellant’s representative’s May 2019 submission did not state that the appellant would relocate to Kirkuk, in the context where the appellant and his representative had responded to an invitation to comment from the Authority that expressly referred to country information concerning the situation in Karbala, and explained that it may lead the Authority to find that the appellant did not face a real chance of serious harm in Baghdad or southern Iraq, including Karbala.

72    Fifth, the appellant affirmed in his second statutory declaration the correctness of his previous statements including his October 2016 interview.

73    For these reasons there was no illogicality or irrationality in the Authority’s finding either by reference to its other findings or on the material before it. Further, it gave consideration to the appellant’s 2019 evidence and material in a fashion, putting to one side ground two for a moment, that does not disclose jurisdictional error.

74    Let me say something about CSO15 as the appellant has referred to it. CSO15 establishes that the identification of a home region or area “will assist the decision-maker in identifying the region or place to which the decision-maker considers, as a fact finding exercise, a person is likely to return” (at [37]); the use of the phrase “home region” is not of itself erroneous (at [41]). Further, if the place to which the person is likely to return is one where they have a well-founded fear of persecution or face a real risk of significant harm, the decision-maker must determine whether there are any other places the person is likely to return to. Only when the places to which the person is likely to return to are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, does a decision-maker need to look to any other places in the country, which are new or unfamiliar to the person.

75    In my view, the Authority’s approach was consistent with CSO15 in the sense that Karbala had been expressly identified by the appellant and the Authority considered that there was no well-founded fear of persecution or real risk of harm at that location.

76    Further, as the appellant has referred to APE16, I should say something about it. The present case is unlike APE16. The express premise of the appellant’s visa application was that he faced harm if he returned to Karbala. And there was evidence before the Authority that Karbala was where the appellant would return to, if he were returned to Iraq. The appellant did not expressly claim otherwise. Moreover, in context it was not irrational for the Authority to place weight on the fact that Karbala was the appellant’s birthplace and had been his home area for a significant time, in finding that Karbala was where the appellant would return to in Iraq.

77    In summary, the Authority’s finding that the appellant would return to Karbala was logically and rationally open to it, and arrived at following a consideration of the relevant evidence. I would reject ground one of the appeal given that no jurisdictional error of the Authority has been established.

Ground 2: The unreasonable failure to exercise the s 473DC(3) power

78    The Authority has discretionary power under s 473DC(3) to get new information where the circumstances of the case require. This power must be exercised reasonably. And where it is unreasonable for the Authority to have proceeded to make a decision without exercising its power under s 473DC(3) or considering the exercise of that power, the decision will have been affected by jurisdictional error (ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3], [19] and [20] per the plurality).

79    In the present case, the appellant says that the Authority was faced with a fundamental change in circumstances between the last interviews conducted with the appellant in October and November 2016 and the decision of the Authority on 14 May 2019. He contends that those changed circumstances were set out in the appellant’s second statutory declaration and the submission and other supporting evidence, the substance of which was accepted by the Authority.

80    Further and in that context, the appellant points out that the sole evidentiary basis for the Authority’s finding at [21] that the appellant would return to Karbala was that the appellant’s evidence on certain matters had not changed. But the appellant says that the most that could be said about the status of the appellant’s October 2016 interview evidence about the existence of the family’s former home in Karbala and that one aunt lived in that province at that time is that it was unclear whether those facts remained true in May 2019, or whether they remained relevant to the question of to where the appellant would return in light of the March 2017 events that caused his family to flee to Kirkuk from Haswa.

81    The appellant says that like in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] the Authority did not have information before it as to whether the statements about the family’s house in Karbala and the appellant’s aunt remained accurate and remained relevant following the family’s flight to Kirkuk in March 2017. He says that it was apparent on the face of the appellant’s 2019 evidence and material that those matters had likely been overtaken by events.

82    The appellant says that he would have been able to answer such questions if asked, and that fact would have been apparent to the Authority.

83    The appellant says that it was unreasonable for the Authority to assume that the appellant’s evidence on those questions had not changed, or that the relevance of those matters to identifying the place to which the appellant would return had not changed following the events of March 2017, without considering to exercise the s 473DC(3) power or exercising it to make a straight-forward and obvious enquiry of the appellant. I agree for the reasons submitted by the appellant.

84    It would seem to me that the Authority did not consider the exercise of its power under s 473DC(3) to request the appellant to give it new information as to the location to which he would return in Iraq. And so not to consider was unreasonable. Alternatively, if it did so consider, its failure to exercise the power was unreasonable.

85    Now the Minister says that as the Authority has provided no reasons on the s 473DC(3) question, I am engaged in an “outcome-focused” analysis of legal unreasonableness. And in an outcome-focused challenge, the Minister says that it is erroneous in the context of judicial review for a court to assess what it regards as being a reasonable outcome and thereby conclude that any other view, namely, that of the decision-maker, necessarily involves error. I quite agree. But such a theoretical point is not an answer to the appellant’s contentions.

86    Further, the Minister says that the test of legal unreasonableness is stringent. All true in generality.

87    Now the Minister says that the relevant outcome, being that the Authority did not request new information from the appellant, was not legally unreasonable.

88    First, the Minister says that the Authority had before it a body of evidence confirming the appellant’s historical and continued ties to Karbala through his family home and his aunt who apparently continued to reside in the province.

89    Second, the Minister says that the appellant’s own evidence as at February 2019 was that he confirmed the correctness of his previous statements. The Minister says that the Authority’s finding at [21] that the appellant’s evidence as to certain matters was unchanged was reasonably open to it. That may be so, but I am dealing with a slightly different question concerning the failure to exercise the s 473DC(3) power to clarify what should have been clarified.

90    Third, the Minister says that the previously constituted Authority found that the appellant would return to Karbala and the delegate also proceeded on this basis, finding that the appellant was not in danger in Karbala. The Minister says that it cannot be suggested that the proposition that the appellant would return to Karbala was in any way a new one. That is true so far as it goes, but it is not a complete answer to the appellant’s point given the subsequent developments.

91    Fourth, the Minister says that the presently constituted Authority, in its invitation to comment, expressly referred to country information concerning the situation in southern Iraq, including Karbala. So, the Minister says that the appellant could have put to the Authority in response to its invitation to comment, new information to contradict the proposition that he would return to Karbala if he were returned to Iraq. That is also true, but it is not a complete answer.

92    Fifth, the Minister also points out that the appellant’s family had not moved from Karbala to Kirkuk, but rather had moved to Kirkuk from Haswa. True, but again this is not a complete answer.

93    Sixth, the Minister says that there is no basis to support the proposition that the appellant would have been able to answer certain questions if asked to clarify the matter. I disagree. Clearly, the appellant could have updated and clarified his intention through a simple enquiry by the Authority.

94    In my view, the appellant has demonstrated legal unreasonableness affecting the non-consideration or non-exercise of the Authority’s discretion under s 473DC(3).

95    It seems to me clear from the material provided to the Authority by the appellant’s representative on 26 February 2019 including the second statutory declaration and also the May 2019 submission that the appellant was substantially elevating the significance of Kirkuk and the reasons for why his family had gone there.

96    One might ask why he did so if his position was that he was likely to return to Karbala. The material rather suggests that Kirkuk was a place that he could realistically have intended to go to if he returned to Iraq. Otherwise such material was of questionable relevance.

97    Further, there was evidence in the appellant’s visa application which suggested that wherever the appellant’s family was in Iraq, it was a real prospect that he would join them, in the absence of up to date evidence to the contrary.

98    Now I accept that the appellant’s representative did not expressly draw this theme out. But nevertheless, it seems to me that the material placed before the Authority called for some enquiries of and clarification from the appellant as to the significance of Kirkuk and whether the appellant was intending to go there on his return rather than Karbala.

99    Further, the Minister made reference to the fact that the Authority had made reference to Karbala in its 17 April 2019 invitation. That is true. And one might have expected the appellant’s representative to have expressly responded that the appellant would not return to Karbala. But the representative in the May 2019 submission did refer to Kirkuk and the second statutory declaration.

100    In my view, the Authority should have clarified the discrepancy by considering and then exercising its power under s 473DC(3), at least to seek written clarification. And this is all the more so given that it was likely that the October 2016 information needed to be updated.

101    Further, the statement by the Authority at [21] that the appellant’s “oral evidence” at the October 2016 interview had “not changed in submissions” to the Authority in one sense was literally true (see the second statutory declaration at [1]). But then clearly in the second statutory declaration relevant circumstances were being updated.

102    In summary, the appellant has established that it was unreasonable for the Authority not to have considered exercising the s 473DC(3) power, alternatively failing to exercise it. Further, that failure was material. The primary judge was in error for not so finding.

103    The appellant’s appeal must be upheld on this ground. Consequential orders should be made to reflect this conclusion.

Associate:

Dated:    6 November 2020