Federal Court of Australia

ALK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1106

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the notice of appeal is refused.

2.    The appeal is dismissed.

3.    The appellant pay the first respondent’s costs of and incidental to the appeal, to be agreed or assessed.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    The appellant appeals from a decision of the Federal Circuit Court of Australia delivered on 13 August 2020, dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA), dated 5 January 2017. By that decision, the IAA affirmed the decision of a delegate of the first respondent (the delegate) to refuse to grant a Temporary Protection (Subclass 785) visa to the appellant.

Background

2    The appellant is a 62-year-old citizen of Iraq. He arrived in Australia on 18 March 2013 by boat as a so-called “unauthorised maritime arrival”.

3    On 22 May 2013, he was interviewed by delegates of the first respondent.

4    On 21 January 2016, pursuant to s 46A(2) of the Migration Act 1958 (Cth) (the Act), the first respondent invited the appellant to make an application for a Temporary Protection (Subclass 785) visa, which he duly did.

5    On 8 August 2016, the appellant participated in an interview with a delegate, during the course of which the delegate requested further information. The appellant provided further information on 7 September 2016. He claimed that he was a refugee within the meaning of s 5H of the Act, owing to a well-founded fear of persecution, and that he met the criteria for a protection visa contained in ss 36(2)(a) and 36(2)(aa) of the Act.

6    On 7 October 2016, a delegate of the first respondent refused to grant the visa.

7    The delegate’s decision was referred to the IAA, which acknowledged the referral on 14 October 2016. The appellant did not provide any new information or submissions to the IAA.

8    On 5 January 2017, the IAA affirmed the delegate’s decision.

9    The appellant applied for judicial review of the IAA’s decision in the Federal Circuit Court of Australia under s 476 of the Act. That application was dismissed.

The appellant’s claims

10    The appellant’s claims to fear of harm were founded on three things:

(a)    his place of birth is Ramady, which he claims is predominantly populated by Sunni Muslims, leading to the imputation that he is a Sunni Muslim when he is in fact a Shia Muslim;

(b)    his imputed political opinion, based on his son “A” serving as an interpreter to the US military in Basra; and

(c)    he is at risk as someone perceived to be a wealthy business man.

11    The relevant facts upon which those claims were founded were as follows:

(a)    the security situation in Iraq became “very miserable” after the civil war commenced in 2003;

(b)    while living in Nasiriya, the appellant was threatened by “the people in Theqar or some ‘group’”;

(c)    he received messages and was stopped in the street, and told that if he did not leave the place where he was working and living, he would die;

(d)    he was told to leave because he was from Sunni-dominated Ramady;

(e)    he was also not accepted in Ramady because he was Shia;

(f)    his son, A, worked as an interpreter for the US military which “was not accepted in Iraq at all”;

(g)    his other son “S” was kidnapped by people “that belonged to some ethnic group” because the kidnappers claimed that the appellant and his family were cooperating with the US military because of A’s job;

(h)    S was released after the appellant paid a ransom of US $30,000; and

(i)    for the above reasons, the appellant decided to flee Iraq.

Reasons of the IAA

12    The IAA concluded that there was no real chance that the appellant would be harmed on the basis of any of the three claims that he advanced, viz: his Sunni-dominated birthplace; A’s employment as an interpreter for the US military; or the appellant’s former profile (prior to leaving Iraq) as a successful and wealthy business man.

13    The IAA made the following factual findings:

(a)    the appellant was “opposed to religious sectarianism” and “prefers not to describe himself as Shia”, although the appellant and his family are nonetheless Shia and are known to be Shia in their community in Nasiriya;

(b)    S was kidnapped and released after the appellant paid a ransom of US $30,000 in 2011;

(c)    S was not kidnapped because of the appellant’s Sunni-dominated place of origin;

(d)    A had worked as an interpreter for the US military, but this work did not extend beyond 2011;

(e)    S was not kidnapped because of A’s work as an interpreter and further, neither the appellant, his son A, or any other members of the appellant’s family “are of any current adverse interest to any group or person on the basis of the [appellant’s] son’s past association with the US military”:

(f)    while the “United Nations High Commissioner for Refugees (UNHCR) reported in 2012 that civilians affiliated with the former multinational or US forces or foreign governments, NGOs or international companies, as well as their families, were at risk of being targeted by non-state actors for their (imputed) political opinion”, the appellant had not claimed that either he or A “was subject to any harm or received any threats in relation to his son’s employment with the US military”;

(g)    it was not evident why A himself was not threatened or harmed, in circumstances where the appellant claimed that it was A’s employment, not S’s, that was the motivation behind the kidnapping;

(h)    it was “highly probable that the [appellant’s] son was targeted for kidnap because the [appellant] was known to be a successful business man who would be able to pay a ransom, and that the motivations of his son’s abductors [were] financial gain”; and

(i)    the appellant will not be perceived to be a successful business man on his return to Iraq because:

(i)    he is no longer the operator of a successful business and ceased operating the business several months prior to leaving Iraq; and

(ii)    the appellant “has been absent from Iraq for more than three and a half years and … has not claimed that he would be perceived to be successful or wealthy in Iraq as a result of the time he has spent living in Australia and there is no independent evidence … to suggest that unsuccessful asylum seekers returning to Iraq from Australia or any other western county are perceived in this way because of the time they have spent in a western country”.

14    The IAA concluded that the appellant did not meet the requirements of the definition of “refugee” under s 36(2)(a) of the Act, because:

(a)    there was no evidence to suggest the appellant’s behaviour relating to his religion, namely, his opposition to religious sectarianism and aversion to identifying himself as a Shia Muslim, “would change on return to Iraq so as to increase the chance that he would be harmed on this basis, or that he would otherwise be of any future adverse interest to any group or person for this reason”, such that there was no “real chance” that the appellant would be harmed on this basis “now or in the foreseeable future”;

(b)    there was “no credible evidence … to suggest that the [appellant] or his family would be of any future adverse interest to Shia groups or any other group or person in Nasiriya” because of the appellant’s place of origin, and no “real chance that the [appellant] will be harmed on this basis”;

(c)    in circumstances where the appellant did not claim that he or any other member of his family had been threatened or harmed because of A’s past work (other than S’s kidnapping in 2011) and A’s employment had, in any event, ceased in 2011:

(i)    there was no credible evidence to suggest that the appellant or any other member of his family would be of any future adverse interest to anyone because of A’s past involvement with the US military; and

(ii)    there was no real chance that the appellant or his family would be harmed now or in the foreseeable future because of A’s previous employment;

(d)    neither the appellant nor his family members would be of any future adverse interest to any group or person because of his past as a successful business man;

(e)    while armed groups remained active even in the calmer “southern provinces of Iraq”, there was only a remote chance the appellant would be harmed by reason of generalised violence in Thi Qar and other southern provinces of Iraq that did not rise to the level of being any “real chance of persecution”; and

(f)    there was no “credible evidence … to suggest that the [appellant] would be harmed … if he returned to Iraq having unsuccessfully sought protection and lived in Australia for over three and a half years”, and accordingly, there was no “real chance” that the appellant would be harmed on this basis.

15    The IAA also found that the appellant had not satisfied the complementary protection criterion under s 36(2)(aa), reasoning as follows:

Real risk of significant harm

51.    Under s.36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

52.    I have concluded that the applicant does not face a real chance of harm as a Shia Muslim who was born in a Sunni-dominated area and has lived in a Shia-dominated area for approximately 30 years, as the father of a person who previously worked as an interpreter for the US military, as a non-practising Shia Muslim who prefers not to identify himself as Shia, as a person who previously operated a successful business or was perceived to be a successful business man, as a person who will be returning to Nasiriya as an unsuccessful asylum seeker after living in Australian [sic] for approximately three and a half years, as a result of the security situation in Iraq, or as a result of any combination of these factors. As ‘real risk’ and ‘real chance’ involve the application of the same standard, I am also not satisfied that the applicant would face a real risk of significant harm for the purposes of s.36(2)(aa) on these grounds.

Complementary protection: conclusion

53.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

16    For the above reasons, the IAA affirmed the delegate’s decision not to grant the visa.

Proceedings in the Federal Circuit Court

17    By ground 1, the appellant contended before the primary judge that the IAA had failed to exercise its jurisdiction in failing to consider a claim clearly arising on the materials and based on established facts that the appellant would be at risk of extortion or kidnapping for ransom against the criterion in s 36(2)(aa) of the Act. In particular, the appellant alleged that the IAA, in concluding that S’s kidnapping was motivated by profit, had assessed the appellant’s case entirely by reference to its findings in relation to harm for discriminatory reasons under the refugee criterion in s 36(2)(a), rather than the complementary protection criterion of s 36(2)(aa).

18    The primary judge rejected ground 1. His Honour found that it was clear from the IAA’s reasons that, while it considered the appellant’s past profile as a successful business man to be the basis upon which the kidnappers considered that they could successfully obtain a ransom, it did not consider that there was any real risk of harm on this basis any longer, because the appellant, upon returning to Iraq, would no longer be perceived to be a successful business man. Further, the primary judge considered that it was clear “that the IAA did not consider that the applicant was at real risk of harm in circumstances where none of the matters raised by the applicant [was] accepted as reasons [for] him or his family to be targeted at the time of the decision”.

19    By ground 2, the appellant contended before the primary judge that the IAA had failed to carry out its statutory task or consider properly the appellant’s claim, in not properly considering a “critical document”, namely, a United Nations High Commissioner for Refugees report that indicated that families of civilians affiliated with US forces were at risk of being targeted by non-state actors for their imputed political opinion.

20    Ground 2 also failed. In this regard, the primary judge noted that the report had been specifically referred to in the IAA’s reasons and that the IAA had clearly considered and discussed the relevant part of the report.

Notice of appeal

21    On 10 September 2020, the appellant filed a notice of appeal from the decision of the Federal Circuit Court. Grounds 1 and 2 are in substance the same as the two grounds below. The appellant also sought leave to advance two further proposed grounds.

22    The two grounds, and the additional two proposed grounds, were in these terms:

Grounds of appeal

1.     The learned primary judge erred by failing to find that the decision of the [IAA] was affected by jurisdictional error due to the IAA failing to consider a claim clearly arising on the materials and based on established facts that the appellant would be at risk of extortion or kidnapping for ransom in Iraq against the criterion in s 36(2)(aa) of the Act.

2.     The learned primary judge erred by failing to find that the IAA failed to properly consider a critical document corroborating the appellant’s claim, namely a report published by the UNHCR which indicated that families of civilians affiliated with the US forces were at risk of being targeted by non-state actors for their (imputed) political opinion.

Proposed new grounds

3.     The decision of the IAA was unreasonable and/or irrational as it misunderstood significant supporting evidence and/or relevantly failed to consider exercising its discretion under s 473DC of the [Act].

Particulars

a.     The Appellant claimed his son continued to work for the US military as an interpreter and provided evidence in support of this claim that included a photocopy of his son’s pass labelled ‘US Mission Iraq 03/15’.

b.     The IAA stated “the expiry date on the third ‘US Mission’ pass is not apparent, although the numbers ‘03/15’ appear on the pass” and proceeded on the basis that the only evidence as to dates of employment for the applicant’s son indicated that it ceased in 2011 after referring to […] “the lack of any evidence of more recent work with the US military”.

c.     The characterisation of ‘03/15’ as numbers, rather than a date, and the failure to grapple with what the numbers ‘03/15’ actually signified, was a critical misunderstanding amounting to jurisdictional error.

d.     The IAA’s finding that the appellant’s son had ceased working with the US military in 2011 was critical to its overall findings that the appellant was not of ‘any current adverse interest’ to any groups or persons and was not at risk of persecution because of his son’s previous employment.

e.     Further and in the alternative, the IAA’s failure to even consider exercising its discretion under Section 473DC of the Act to invite the Appellant to explain the document was unreasonable, resulting in an illogical failure to characterise the ‘numbers’ as a date and a misconceived finding that the son’s work with the US military did not extend beyond 2011.

4.     The IAA’s finding that the appellant’s son was kidnapped for financial gain and not a Convention related reason was unreasonable and/or irrational and/or misconstrued and misapplied the test in s 5J(4)(a) of the Act.

Particulars

a.     The IAA accepted that the Appellant had a son who had worked with the US military as an interpreter until 2011 and another son who was kidnapped in 2011.

b.     The IAA accepted country information from the UNHCR that civilians affiliated with the former US forces, ‘as well as their families’, were at risk of being targeted for their imputed political opinion.

c.     The IAA rejected the appellant’s claim that his son was kidnapped because of his other son’s work with the military and instead found he was kidnapped for reasons of ‘financial gain.’

d.     The IAA rejected the appellant’s claim because of his inability to identify his son’s abductors and the lack of credible evidence regarding the perpetrator’s motives.

e.     These reasons were not rationally or logically capable of supporting the IAA’s findings and/or in the alternative demonstrate that the IAA misconstrued the test in s 5J(4)(a) which requires that a Convention related ground need only be the essential and significant reason for the harm feared and not the sole reason.

Consideration

Ground 1

23    The primary contention advanced by the appellant in respect of ground 1 is the same as that advanced below, namely, that the IAA only considered the appellant’s application by reference to the s 36(2)(a) refugee criterion, and did not consider whether the appellant separately satisfied the s 36(2)(aa) complementary protection criterion.

24    The appellant’s written submissions contended that:

12.    The inquiry appears to have only, in substance, considered the risk faced by the [a]ppellant through the lens of protection obligations owed to someone persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The criterion in [s] 36(2)(aa) required investigation of a different complexion. In particular, the concern of the complementary protection criterion is to provide protection from significant harm that is not inflicted for any of the discriminatory grounds under the Refugee Convention.

13.    In essence, the claim is that the [a]ppellant was at risk of extortion or kidnapping, distinct from the claims in respect of convention related grounds that were subject to the [IAA’s] focus. There was supporting material that the [a]ppellant was at risk in the country information and there was a failure of the [IAA] to undertake a proper assessment of this claim as the only consideration undertaken was in respect of grounds in which there was an ‘overlap’ with the convention related grounds.

25    In my view, the IAA, in considering whether the appellant faced a real risk of significant harm in returning to Iraq, assessed this risk by reference to both the criteria set out in ss 36(2)(a) and 36(2)(aa). The IAA considered whether the appellant had met the s 36(2)(aa) criterion as against each of circumstances specific to the appellant that it had already canvassed in respect of s 36(2)(a), as well as the more general “security situation in Iraq”. See paragraph 52 of the IAA’s reasons set out above. The IAA discussed the general risk of extortion and kidnapping in making its factual findings and in considering the appellant’s claim under s 36(2)(a), and as counsel for the appellant noted, the IAA cited both the country material and UNHCR information in this regard. Having done so in the course of making its findings of fact and in respect of s 36(2)(a), it was not necessary for the IAA to go into any further detail and repeat the same findings, in full, in respect of its s 36(2)(aa) assessment.

26    As the learned primary judge found, “[t]here is no jurisdictional error in a decision maker relying upon earlier findings of fact. Whilst there are differences between Convention claims and [complementary] protection claims, the most significant being the need for a convention reason in convention claims, both rely upon a finding of a risk of harm”. (See SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32], where the Full Court said: “We can understand that a claim under the Refugees Convention may fail because, on the facts, harm was suffered but not for a Refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the minister has substantial grounds for believing there is a real risk of significant harm for the purposes of s 36(2)(aa) of the Act”. See also SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and SZSRU v Minister for Immigration and Border Protection [2014] FCA 1252 at [41].)

27    It was therefore not necessary for the IAA, having considered in detail each of the reasons advanced by the appellant as to why he would face a risk of harm as assessed against the s 36(2)(a) criterion, to then repeat the fact-finding exercise again through the “lens” of the s 36(2)(aa) criterion.

28    Ground 1 accordingly fails.

Ground 2

29    Ground 2 was also in essence the same as the ground advanced below, namely that the IAA did not have sufficient regard to a “critical document”, namely, a UNHCR report from 2012.

30    In written submissions, counsel for the appellant described the error said to be attributable to the IAA in this regard as follows:

The UNHCR Report is not referred to any further beyond a general conclusion that having regard to the evidence before it, the [IAA] refuses to accept the [a]ppellant’s son [S] was kidnapped because of his other son [A’s] work with the US Military. The UNHCR information beyond being recited in the decision, does not appear to have informed in any way the [IAA’s] assessment. This conclusion is reached without further reference to UNHCR report, the substance of which clearly identified that family members of those affiliated with parties such as the US military were at risk of being targeted for the reasons claimed. The [IAA] in part, dismissed the [a]ppellant’s claim that his other son was kidnapped for this reason because of ‘the lack of credible evidence regarding the perpetrators motives’ notwithstanding that such motives were attributed by the [a]ppellant to reasons that were entirely consistent with the UNHCR Report.

…

It’s submitted that the authority didn’t express any doubt about the reliability of the report. There was no contradictory evidence, but ultimately the conclusion was that there was insufficient evidence to persuade the authority. And the submission is, ultimately, that by dismissing the applicant’s claim in part because of the lack of credible evidence regarding the perpetrator’s motives, there was little done to reconcile the UNHCR report and the claim of the appellant that the motives were based on the family’s perceived political views by virtue of the son’s employment with the US military, and they were ultimately consistent with the UNHCR report in evidence before it.

(Emphasis in original.)

31    In oral submissions, counsel elaborated:

[I]t is put that there was a failure on the part of the authority to consider the material when assessing the appellant’s claims. The reason for this is in the paragraphs immediately following the extract of the UNHCR report, it relies on reasoning to suggest that the reporter has not actually considered this is in the face of consistent claims that his son A’s employment was the motivation for the kidnapping, albeit in circumstances where the parties never actually identified themselves.

It was put to the delegate in the course of the interview that the victim was expressly told, “You’re all cooperating with the Americans and your brother is working with them as an interpreter.” And this is cited in the delegate’s decision. And, in part, the authority relies on the inability of the appellant to identify his son’s abductors and the finding of a lack of credible evidence regarding the perpetrator’s motives. It ultimately finds that the appellant’s son was kidnapped and released after the payment of the ransom, and that this was attributable to the fact that … the appellant was a wealthy man and able to pay the ransom.

32    Counsel for the first respondent contended that there was no failure to consider the UNHCR report in a way that resulted in jurisdictional error, noting that the IAA “recited the country information from the UNHCR report” and reasoning that “the fact that the country information was included in the reasons is evidence that the Authority considered it to be something on which its material findings of fact were based”. In oral submissions, counsel added that all the country information was considered, but that the IAA nonetheless found that neither the appellant nor his family fell into the risk categories set out in the country information and that the UNHCR report “is not credible evidence that the appellant or his family would be at risk of harm specifically; it’s evidence that the cohort of people mentioned in that country information come within that particular risk profile.”

33    In my view, the characterisation of the IAA’s reasons contended for by the first respondent is correct. It is useful to set out the passages of the IAA’s reasons which deal with the UNHCR report in full:

21.    The United Nations High Commissioner for Refugees (UNHCR) reported in 2012 that civilians affiliated with the former multinational or US forces or foreign governments, NGOs or international companies, as well as their families, were at risk of being targeted by non-state actors for their (imputed) political opinion. According to UNHCR, from 2003, both Sunni and Shia armed groups were known to have threatened, kidnapped and killed interpreters, embassy workers, drivers, subcontractors and others affiliated with multinational or US forces, foreign governments, international companies or organizations, reportedly to deter others from working for them. UNHCR reported that armed Shia groups had been reported to target persons considered to be ‘collaborators’ with the foreign forces, especially the US.

22.    The applicant has not claimed that he, or his son who worked as an interpreter with the US military, was subject to any harm or received any threats in relation to his son’s employment with the US military. However, in his TPV application, the applicant claimed that another of his sons was kidnapped in 2011 because of his brother’s perceived cooperation with the US military in his role as an interpreter.

23.    When asked about this incident at interview, the applicant said he could not identify his son’s kidnappers. When invited to guess who might have been responsible he referred in general terms to a number of groups who claimed to represent the Iraqi Government. When asked if Shia militia could be responsible, he responded that anyone could be responsible, including Shia or Sunni militia. He said he was not sure why his son was kidnapped and his son never spoke about his experience because his abductors told him not to discuss it. He then said that the kidnappers said: ‘You are all cooperating with the Americans and your brother is working with them as an interpreter’. If the motivation was the applicant’s other son’s employment with the US, it is not evident why that son was not himself threatened or harmed in any way.

…

25.    The Department of Foreign Affairs and Trade (DFAT) and UNHCR report that violent crime, including kidnap for ransom, is common in Iraq. Both Sunni and Shia militia are reported to use extortion and kidnapping to raise funds, sometimes using religious arguments to justify criminal acts. The applicant has consistently claimed that his son was kidnapped and that he paid a ransom for his release. Having regard to the information before me, I am willing to accept that the applicant’s son was kidnapped and released after the applicant paid a ransom of USD $30,000 in 2011.

26.    The applicant claims that he was a successful business man in Nasiriya. In view of the information discussed regarding the prevalence of violent crime in Iraq, including kidnap for ransom, I consider it highly probable that the applicant’s son was targeted for kidnap because the applicant was known to be a successful business man who would be able to pay a ransom, and that the motivation of his son’s abductors was financial gain. Having regard to the evidence before me, in particular the applicant’s inability to identify his son’s abductors and the lack of credible evidence regarding the perpetrators’ motives, I do not accept that the applicant’s son was kidnapped because of the applicant’s other son’s work as an interpreter for the US military, or because of the applicant’s Sunni-dominated place of origin.

34    As those passages make clear, it is simply not the case that the IAA did little to “reconcile” the contents of the UNHCR report with its conclusion that S’s kidnapping was motivated by profit and the fact that the appellant was perceived to be a wealthy business man, rather than A’s involvement with the US military. Contrary to the appellant’s contention that the “paragraphs immediately following the extract of the UNHCR report … relies on reasoning to suggest that the reporter has not actually considered this is in the face of consistent claims that … A’s employment was the motivation for the kidnapping”, these paragraphs reveal that the IAA clearly did consider the report. These passages (paragraphs 22 to 26 of the IAA’s reasons set out above) summarised the general findings from the UNHCR report, before considering whether those general findings applied in the appellant’s particular circumstances. Immediately after its reference to passages from the UNHCR report, the IAA considers whether the appellant identifies any actual harm or threats of harm said to be a result of A’s involvement with the US military. For the countervailing reasons set out in subsequent paragraphs, the IAA did not consider that the findings from the UNHCR report were applicable to the appellant’s situation.

35    Ground 2 accordingly fails.

Proposed grounds 3 and 4

36    Proposed ground 3 relates to the IAA’s findings that A’s work as an interpreter with the US military did not extend beyond 2011. The appellant claimed that this work was ongoing at the time of his 8 August 2016 interview with the delegate. In support of this claim, he provided a letter of recommendation dated November 2011, two security passes with expiry dates of 31 December 2011, and a third security pass displaying the words “US Mission Iraq” and in respect of which the IAA found “the expiry date … is not apparent, although the numbers ‘03/15’ appear on the pass”.

37    By proposed ground 3, the appellant sought to contend that the IAA’s decision was unreasonable and/or irrational in that it had misunderstood the numbers “03/15”, or because it had failed to consider exercising its discretion to request further information about these numbers under s 473DC of the Act.

38    As to any “misunderstanding”, it would be mere speculation as to the meaning of the numbers “03/15”. Importantly, the appellant never proffered any explanation of the significance of the numbers to the IAA. Nor was any explanation offered by the appellant in its written submissions on this appeal, beyond the bald assertion that the numbers represented the date through which the pass would remain valid, without identifying what this date might be. It was only when asked during oral submissions that counsel for the appellant suggested that the numerals indicated that the card expired in March 2015. But that is, with respect, guess work.

39    Counsel for the appellant recognised that while failure by the IAA to consider exercising its s 473DC discretion may be legally unreasonable, it is not necessarily the case that this is so (citing DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [37]-[39]). In my view, in circumstances where the person providing the material, the appellant, did not provide any explanation as to what the numbers “03/15” may mean, or attribute any particular significance to them, it cannot be unreasonable for the IAA not to consider exercising its discretion to seek more information about this single detail among the volume of material provided.

40    As to ground 4, the appellant sought to contend that, in finding that S’s kidnapping was motivated by profit, the IAA “precluded” a finding that the kidnapping was because of A’s employment, that is, the IAA treated the two reasons as being mutually exclusive. The appellant contended that this was unreasonable, irrational and/or misconstrued.

41    That is a mischaracterisation of the IAA’s reasons. The IAA’s finding that the kidnapping was motivated by profit was not the basis for its conclusion that the kidnapping was not because of A’s employment. The IAA, in arriving at this conclusion, also considered the fact that A himself was not threatened, the appellant’s inability to identify the kidnappers and the lack of any other credible evidence as to motive. See paragraphs 23 and 26 of the IAA’s reasons set out at above.

42    For these reasons, proposed grounds 3 and 4 are without merit. Accordingly, the application for leave to amend the notice of appeal to include them will be refused.

Disposition

43    The appeal will accordingly be dismissed with costs.

Associate:

Dated:    13 September 2021