Federal Court of Australia

AGC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1572

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Set aside the decision of the primary judge and in lieu thereof:

(a)    There issue absolute in the first instance a writ of certiorari quashing the second respondent’s decision of 4 January 2017.

(b)    There issue absolute in the first instance a writ of mandamus directed to the second respondent to exercise the powers under Part 7AA of the Migration Act 1958 (Cth) according to law.

(c)    The respondent pay the applicant’s costs.

3.    The respondent pay the appellant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    This is an appeal from orders of the Federal Circuit Court of Australia, dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the appellant a safe haven enterprise visa (SHEV). One of the primary reasons that the Authority affirmed the delegate’s decision was the Authority’s view that there were significant inconsistencies between the appellant’s second and third accounts of certain relevant events. When addressing these perceived inconsistencies, the Authority did not refer to the appellant’s first account of the relevant events. The appellant contended that the Authority did not conduct the review contemplated by the statutory scheme or conducted it in a way which was affected by jurisdictional error. The primary judge rejected this argument.

2    The Minister contends the primary judge was correct to have rejected the appellant’s argument and says that, in any event, if the error had not been made, there was no realistic possibility of a different outcome. This was because the Authority also concluded that, even if the appellant’s claims were to be accepted, the Authority had concluded the country information and passage of time meant that the appellant did not face a real chance of harm if returned to Iraq.

3    For the reasons which follow, the Authority’s decision was affected by jurisdictional error and the primary judge erred in failing so to conclude. I am satisfied that there is a realistic possibility that the Authority might have reached a different decision had it not erred in the way indicated below. It follows that the appeal must be allowed.

BACKGROUND

4    The appellant is from Basra in Iraq. The appellant trained and worked as a barber from 2003 until 2012. He first worked at his older brother’s barbershop in 2003; he opened his own barbershop in 2006; and in 2010, he commenced working as a barber at JSI, leaving his barbershop to the care of his younger brother, whom he had earlier trained. JSI provided security for foreign-run oil installations in the Basra area.

5    The appellant claimed, and the Authority accepted, that Islamist Shia militia patrols had closely monitored the appellant’s work in his salon and had barred him from undertaking modern European haircuts and from trimming beards or facial hair. The appellant claimed that many barbers were attacked and killed in Iraq.

6    The appellant also claimed that a militant group, Asa’ib Ahl Al-Haq (AAH), had threatened to kill the appellant if he did not leave his job with JSI and join them. The appellant alleged that AAH came to his house at night, firing guns. At his irregular maritime arrival entry interview on 19 May 2013, the appellant had said that “around 0200, they came to our place and they started shooting”. In a translated written statement of 7 March 2016 which accompanied his application for a protection visa, the appellant stated that the attack took place “at 2am”. That statement was sent by the appellant’s migration agent, together with the visa application and a submission dated 14 March 2016 which referred to the attack occurring “in a 2am raid”. During his SHEV interview on 5 October 2016, the appellant said that the attack occurred at “1 o’clock … in the night time”. After the alleged attack, the appellant sheltered with neighbours for two days and then found his barber shop burned down. The Authority did not accept these claims, primarily on the basis of what it perceived to be inconsistencies between the appellant’s written statement and the SHEV interview.

7    The appellant travelled from Iraq to Australia by boat in March 2013.

8    In June 2013, the appellant’s younger brother was killed. A death certificate, accepted by the Authority as genuine, indicated that the cause of death was “fire shots in the head that caused immediate death”.

9    On 28 January 2016, the appellant was notified that the Minister had lifted the statutory bar for him to lodge a protection visa application. On 15 March 2016, the appellant’s legal representatives lodged on his behalf a valid application for a SHEV. The appellant made the following claims:

(1)    fear of harm from AAH, the Mahdi Army (JAM) or other militia groups due to his work as a barber and with a foreign company; and

(2)    fear of harm due to being a non-practising Muslim.

10    The Minister’s delegate refused the appellant’s visa application on 25 November 2016.

11    On 4 January 2017, the Authority gave reasons for affirming the delegate’s decision (hereafter referred to as “A”). The Authority accepted that the appellant’s younger brother was killed, but considered “it entirely speculative to make a finding as to who killed [him and] the reason for it”: A[12].

12    The Authority accepted that hairdressers were targeted from after the collapse of the Saddam Hussein regime in 2003 for a period and therefore accepted aspects of the appellant’s claims. The Authority stated (footnotes omitted):

[13]    Country information indicates that since the fall of the Saddam Hussein regime in 2003, hairdressers and barbers have been targeted and some even killed in Basra and Baghdad. Salons have been bombed or forced to close for giving ‘western’ style haircuts by militias who were sending a signal to all Iraqis that they were empowered to dictate societal norms. During that period, the continuous attacks on salon workers aroused fear within some of them, to the extent that they left their jobs and started to secretly practice their profession at home, whereas others have put signs on their stores that informed customers that they did not do haircuts or styling. It is reported that some extremists visited salons and threatened barbers not to shave beards or try to imitate Americans in their hairstyles. The [appellant] also provided an article regarding barbers being targeted by militias for shaving men’s beards or do [sic] western-style haircuts dated 18 March 2005.

[14]    Based on the above information, I accept that the [appellant’s] older brother ceased working as a barber and sold his barber shop in 2006 due to the incidents towards hairdressers at that time, and that his older brother is now working in a car sell yard in Basra.

[15]     I accept that the [appellant’s] salon was monitored by militias, who harassed and threatened them not to do western style haircuts, styling, shave beards, and banned trimming and scrubbing of face hair and eyebrows.

13    Nevertheless, the Authority considered that different accounts given by the appellant about certain events were so inconsistent as to warrant a conclusion that those events did not occur, on the basis that the appellant was not credible. The Authority stated:

[16]    At the SHEV interview, the [appellant] stated that in 2012, he received a text message on his phone from AAH requesting him to join them and stop working with JSI. He stated that two days later, he received a phone call from AAH. AAH told him that they sent him a message; he ignored it and did not reply. AAH requested him to attend their office. They told him that they knew he was working in JSI and that next time when they sent him something, he had to reply. He apologised to the AAH and told them that he would attend their office. But he did not attend their office as he was fearful of what they would do with him.

[17]    There was no mention of having received a text message from AAH, or that the AAH requested the [appellant] to attend their office in the [appellant’s] written statement. The written statement only mentioned about a threatening telephone call from AAH and the subsequent home attack and arson attack against the [appellant’s] barbershop.

[18]    At the SHEV interview, the [appellant] stated that 24 hours since the phone conversation, AAH attacked his home. This differs from his written statement which stated that a few days after the phone call from AAH, they attacked his home.

[19]    In the written statement, the [appellant] stated that at 2 am his home was raided and shot at. When asked at the SHEV interview, the [appellant] stated that the shooting at his home started at ‘1 o’clock…at night time’.

[20]    According to the [appellant], they stormed the house and opened fire, which lasted for about an hour. The threats and the home attack occurred within a short timeframe. In these circumstances, I consider these to be memorable and significant incidents. There is no medical evidence before me to suggest, and I am not satisfied, that the [appellant’s] evidence is affected by any memory or medical conditions. The written statement was made about three years after the [appellant’s] boat journey to Australia. I do not consider that the omission or inconsistencies was due to any effect from the boat journey.

[21]    The [appellant] was able to provide detailed and specific evidence in his SHEV application and at the SHEV interview in October 2016, including the contents of the text message and phone conversation, and the timing of the claimed incidents. The written statement was prepared in 2016, about three years after the [appellant’s] arrival in Australia in 2013, and the [appellant] was assisted by a migration agent in his SHEV application and at the SHEV interview. As such, I am not satisfied that the passage of time since the claimed incidents or trauma could satisfactorily explain the omission and inconsistencies. In my view, if the [appellant] had in fact received a text message from AAH followed by a threatening call two days later, and his home was attacked 24 hours since that phone call, the [appellant] would at least be able to provide consistent evidence as to whether the AAH requested him to attend their office; and whether he only received a threatening call, or a text message followed by a threatening call.

14    It can be seen from the foregoing that the following inconsistencies were a substantial basis for the Authority rejecting the appellant’s claims regarding the relevant events:

(1)    First, the appellant had stated in the SHEV interview on 5 October 2016 that he had received a text message from AAH requesting that he join the AAH and stop working with JSI. He stated he received a phone call two days later: A[16]. The text message was not mentioned in the written statement and nor was the AAH’s request that the appellant attend AAH’s office: A[17].

(2)    Secondly, the appellant had stated in the SHEV interview that the attack on the appellant’s home occurred 24 hours after the phone call, whereas it was said to have occurred “a few days” after the phone call in the written statement: A[18].

(3)    Thirdly, the appellant had stated in the SHEV interview that the attack on the appellant’s home occurred at “1 o’clock … at night time”, whereas it was said to have occurred “at 2 am” in the written statement: A[19].

15    The Authority also referred to a lack of “independent evidence … to substantiate the claimed threats and attacks”: A[22].

16    The Authority referred to country information indicating that since 2008 the situation for hairdressers and hairdressing businesses in Iraq had improved: A[23]. The Authority stated at A[24]:

[24]    On the [appellant’s] evidence, he has never been caught doing styling or the forbidden things which AAH had asked him and other barbers not to do, and that AAH started to monitor him, his brothers and other barbers in their area from 2006 up to 2010. In these circumstances, it is doubtful that AAH would threaten the [appellant] and attack his home and barbershop in 2012.

17    Immediately after discussing the inconsistencies and the matters just referred to, the Authority referred to the entry interview and stated at A[25]:

[25]    At the arrival interview held in 2013, the [appellant] stated that he did not know why AAH wanted him to join them and that they were gangs and involved in crimes.

18    The Authority compared this answer to an answer given in the SHEV interview. It stated at A[26]:

[26]    At the SHEV interview in 2016, in response to why AAH wanted him to join them, the [appellant] stated that they perceived him ‘… as a person who is outside and not practising Islam, working as a barber and doing style, … labelled as secular, … out of the context of the religion’. He stated that part of their mission was to invite him or convert him, or take him back to Islam religion.

19    The Authority was not satisfied that the appellant was targeted or that he was of adverse interest to the AAH, the JAM or other Shia militia groups because of his work as a barber for a foreign company in Basra. It stated at A[29]:

[29]    The [appellant] stated at the SHEV interview that AAH told him to stop working with JSI because they are foreigners who want to steal or to take Iraq oil away from them. The information before me does not suggest that barbers who worked with a foreign company were specifically targeted or threatened by militant groups in Basra. I am not satisfied on the evidence that the [appellant] was targeted or of adverse interest to AAH, JAM or Shia militant groups because of his work as a barber for a foreign company in Basra.

20    The Authority continued at A[30] and [31]:

[30]    Having regard to the totality of the evidence, the [appellant’s] accepted profile and for the above reasons, I do not accept that AAH wanted the [appellant] to join them because he is a non-practising Muslim, worked as a barber or with a foreign company or that they labelled him as secular or wanted to convert him back to Islam religion. I do not accept that the [appellant] received a text message or threatening call from AAH, JAM or armed militant group; or that AAH, militias, the police or anyone stormed, raided, attacked or opened fire at the [appellant’s] home; or that the [appellant’s] barbershop was burnt or destroyed. I do not accept that the AAH requested that the [appellant] to join them, leave his job, or attend their office. I do not accept that the [appellant], his mother and younger brother were displaced from their home, or that they left their home for the city of Al-Zubair / Al-Najm farms for the reasons claimed. I am not satisfied on the information that the [appellant] is or was known to the radical Islamists as a secularised Arab Shia; that he was perceived as a secularised enemy who has collaborated with foreign companies; or regarded as a ‘kafir’ or an apostate; or that he is or was imputed to be hostile to the radical Islamist goal of establishing Iraq as an Islamist state under either a caliphate or an Islamic regime based only on Sharia law. I am not satisfied that the [appellant] is or was of adverse interest to AAH, JAM or any other Shia armed groups, or that he suffered psychological fear or harm from his encounters with Islamist terrorists.

[31]     As such, I find that the [appellant] will not face a real chance of harm from AAH, JAM or other Shia militant groups for reasons relating to his previous work as a barber, his work with a foreign company or JSI, or for being a non-practising Muslim, or a combination of these reasons, now or in the reasonably foreseeable future.

21    The Authority then referred to other country information which tended to indicate an improvement in the situation for hairdressers, as well as for young men with “special or western style haircuts”, such as emos. It stated at A[32] and [33] (footnotes omitted):

[32]     Country information indicates that hairdressers and beauticians, who were targeted during Iraq’s sectarian war, held a festival in Baghdad in 2013 as a symbolic move to break with years of fear. The event, officially called the Make-up, Hairdressing and Fashion Show, was organised over a weekend and was the first of its kind since the 2003 US-led invasion and its violent aftermath. It marked a sharp difference from the climate that once prevailed in the country, when tens of thousands were killed in the insurgency and sectarian war that followed the invasion that ousted now-executed dictator Saddam Hussein. Militants have weakened and violence has dropped dramatically when compared to years earlier. It is reported in July 2016 that ‘emos’ - young men who dressed differently, including having special or western style haircuts, are now back, as their attackers are otherwise occupied. These kinds of young men are more courageous and one sees more of them in southern Iraq, such as Nasiriya. Militias are preoccupied with other issues and that gives them some freedom to dress as they like.

[33]     The [appellant] submitted an article dated 1 June 2015 to the delegate, which stated that IS militants have announced that full beards would be compulsory and shaving was punishable in Mosul. However, unlike southern Iraq, including Basra and Nasiriya, which are under government control, the city of Mosul was controlled by Daesh and other Sunni armed groups. As the [appellant] is from Basra, I give weight to the country information regarding the situation in areas under government control in southern Iraq, which is more relevant to the [appellant’s] circumstances. Country information indicates that IS militants and other Sunni insurgent groups have very limited presence in government controlled areas in southern Iraq, and I am not satisfied that IS militants or Sunni extremist groups have the capacity to patrol and target barbers or to enforce a ban on shaving of beards in the south, including Basra.

22    The Authority concluded at A[34]:

[34]     On the information, I find that the [appellant] faces no real chance of harm from IS militant or other Sunni insurgent groups on the bases of his work as a barber; his work with JSI, a foreign company; for being a Shia or a non-practising Muslim; or for any other reasons, if he were to return to Basra now or in the reasonably foreseeable future.

23    The Authority then also concluded that the appellant would not face a real chance of harm “even if the [appellant had been] threatened and attacked”. At A[35], the Authority stated:

[35]     In view of the above country information, and given the passage of time of over four years since the claimed incidents in 2012, I consider that even if the [appellant] was threatened and attacked, which I do not accept, the [appellant] will not face a real chance of harm for reasons relating to his past work as a barber, his work in JSI or for being a non-practising Muslim, or for a combination of these reasons, if he were to return to Basra now or in the reasonably foreseeable future. In addition, the evidence before me does not indicate that the [appellant’s] older brother, who used to work as a barber, was threatened or targeted for harm since he stopped working as a barber. The [appellant’s] evidence that his older brother is living unharmed in Basra supports that the [appellant] will not face a real chance of harm for reasons relating to his past activities as a barber if he were to return to Iraq.

24    Although this paragraph states that it is based on the country information referred to earlier, the Authority continued to consider other country information which touches on relevant matters. It stated at A[36] to [38] (footnotes omitted):

[36]     The referred country information reported an incident of truck bombing in front of a barbershop in Baghdad. However, it is not clear as to whether this was a targeted attack or general violence, and who was responsible for this incident. The independent information before me does not suggest that barbers or barbershops are being attacked or targeted in Basra. As mentioned above, the situation for barbers in Iraq have changed since 2008, where violence and attacks against barbers have dropped, salons have re-opened since 2013 and ‘emos’ are back in southern Iraq in July 2016.

[37]     Country information indicates that Shia militia groups in Iraq, including JAM, AAH (an offshoot of JAM), Kata’ib Hezbollah, the Mukhtar Army and the Badr Corps, have changed their aims and operations, and are now working alongside the Iraqi Security Forces (ISF), the Iraqi government and indirectly allied with foreign forces, in the fight against Daesh. I accept that the AAH has institutionalised as a leading member of the Popular Mobilisation Forces (PMU). However, given their change in focus following the 2014 Islamic State offensive, in that they are now in support of the government and fighting against the Islamic State, I do not accept that the [appellant’s] risks heightened as AAH legitimised and institutionalised as a leading member of the PMU.

[38]     I have also considered the representative’s submission of 14 March 2016, including the references to decisions made by the former Refugee Review Tribunal (RRT), some dating back to 2013. Some of these decisions relate to Iraqi students and ex-Ba’athist academic from other provinces of Iraq, which differs from the [appellant’s] circumstances. I am required to consider the circumstances of this particular [appellant] and recent country information. This is particularly so given the abovementioned change in the situation for barbers in Iraq.

25    The Authority then concluded at A[39] and [40]:

[39]     The [appellant] has not specifically claimed that he wishes to work as a barber upon return. Nonetheless, on the information before me, and having regard to the [appellant’s] accepted profile, I consider there is only a remote chance that the [appellant] will be harmed or targeted by AAH, JAM, other Shia armed groups or Sunni militant groups if he were to continue working as a barber upon return to Basra. I am not satisfied on the evidence that the [appellant] faces a real chance of harm if he were to continue working as a barber in Basra upon return, including working in a foreign company, now or in the reasonably foreseeable future.

[40]     Considering the evidence as a whole, I am not satisfied that the [appellant] will face a real chance of harm for being a non-practising Muslim, Arab Shia, on the bases of his past or future work as a barber, including working for a foreign company, or a combination of the claimed reasons, if he were to return to Basra now or in the reasonably foreseeable future.

26    These paragraphs were the conclusion in respect of the various matters from A[13] to A[38] headed “Work as a barber and in foreign company, Shia, non-practising Muslim”.

27    The Authority then turned to a consideration of the “general situation” in Iraq and stated it was not satisfied that the appellant had a well-founded fear of persecution in Basra, “[e]ven considering the [appellant’s] cumulative circumstances as a young Shia Muslim Arab man, a non-practising Muslim, a failed asylum seeker, a returnee who spent time in the west, and who worked in a foreign company, and has worked and would work as a barber upon return”: A[41]–[46].

28    The Authority was not satisfied the appellant had protection obligations under either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth): A[48] to [52].

THE FEDERAL CIRCUIT COURT’S DECISION

29    The appellant’s first ground of review before the Federal Circuit Court was:

The Authority constructively failed to exercise its jurisdiction as it failed to have regard to what the [appellant] said in his arrival interview about threats from the militia and the attack on his home when it assessed the consistency of his evidence with regard to those matters.

30    The appellant’s second ground of review, concerning s 473GB, is not relevant to the appeal.

31    In respect of ground 1, the primary judge said:

[73]    The IAA noted that at his Entry Interview, the [appellant] had stated that he did not know why the AAH wanted him to join them and that they were gangs and involved in crimes.

[74]    A fair reading of the IAA’s decision record does not support the [appellant’s] contention that the IAA failed to have regard to the [appellant’s] Entry Interview in its consideration of the [appellant’s] claims. The IAA identified with particularity the inconsistencies which it found, as well as the country information to which it had regard. It is well settled that the country information to which the IAA has regard and the weight it gives that information is a matter for the IAA (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

[75]    I accept the submission of the first respondent that the concern for the IAA was that two versions of events had been given and, had the IAA expressly referred to the Entry Interview version given by the [appellant] as being consistent with the content of his SHEV statement, it would not have addressed the IAA’s concerns of the different versions provided.

32    At J[76], the primary judge stated:

[76]    In the circumstances, the IAA gave appropriate attention to all relevant material in making a finding of inconsistency which then underpinned its adverse credibility assessment of the [appellant] (see AVQ15 at [26]).

33    At [77] to [82], the primary judge held that:

[77]    As is apparent from the passages cited above from the IAA’s decision record, the IAA had regard to the [appellant’s] general circumstances and the timing of the [appellant’s] various accounts in determining whether the omissions and discrepancies in the [appellant’s] accounts were adequately explained by the [appellant]. The IAA determined that they were not. The inconsistencies and omissions identified by the IAA were relevant to central aspects of the [appellant’s] protection claims.

[78]    It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).

[79]    The IAA’s findings were rational and logical and probative of the relevant issues before it. As set out above, the IAA’s adverse credibility findings were squarely based on the [appellant’s] written and oral evidence and the IAA’s assessment thereof in the light of country information before it. The inconsistencies and omissions did not relate to objectively minor matters. Rather, they went to the core of the [appellant’s] claims and credibility (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J).

[80]    The reasons that the IAA gave for the findings that it made were detailed, comprehensive and referred to the material, including country information, before it. The reasons were logical, did not proceed on a “false factual premise” and did not overlook relevant material. Having made those findings, it was open to the IAA to reject the [appellant’s] claims.

[81]    It is well established that the IAA is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the IAA have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

[82]    In the circumstances, the IAA’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. As stated above, the IAA’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The IAA’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

34    The primary judge concluded that neither ground of judicial review was established and dismissed the application on 22 April 2020.

THE APPEAL

Is leave to appeal required?

35    The appellant relies on an amended notice of appeal, containing one ground:

1.     The Federal Circuit Court erred in its findings under the appellant’s first ground of review below in relation to the IAA’s treatment of supposed inconsistencies in the appellant’s evidence, namely:

b.     in failing to find that the IAA’s approach to the supposed inconsistencies was unreasonable, unfair or constituted a constructive failure to review.

36    The appellant explained that ground 1(a) relates to the Court’s reasons at J[74]-[82] as to whether the entry interview was properly considered and whether it would have made a difference. Ground 1(b) relates to the Court’s findings at J[76] to the effect that nothing the Authority had done in relation to its treatment of the purportedly inconsistent evidence was contrary to the approach set out in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133.

37    The Minister contends that the appellant requires leave to argue ground 1(b) on the basis that, unlike on appeal, the appellant had not put any argument to the primary judge about: (1) whether there was an inconsistency arising by reason of the failure to mention the text message in the written statement; or (2) the time between the phone call and the attack.

38    In CGA15 v Minister for Home Affairs (2019) 268 FCR 362; [2019] FCAFC 46 at [36]-[37], the Full Court noted:

[36]    There is a particular sensitivity to whether the interests of justice favour a grant of leave in refugee cases, because an adverse decision may have very serious consequences for an appellant: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ). The merit of the proposed new ground is an important consideration. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]:

The likely merit of a proposed ground of appeal, in the context of judicial review, will almost invariably be important because it is generally likely in the interests of the administration of justice for this Court to ensure that an administrative decision arguably affected by jurisdictional error is not carried into effect, especially effects which are capable of resulting in a deprivation of liberty, which is the case under the Migration Act for persons who do not hold a valid visa. That is a consequence of upholding and applying the rule of law.

See also SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68 at [55] (Flick J).

[37]    In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] Madgwick J (with whom Conti J agreed) set out a non-exhaustive list of the considerations relevant to a grant of leave, which have been applied in numerous decisions. One consideration weighing against a grant of leave in the present case is that the appellant did not provide an explanation for the failure to raise the proposed new ground before the Federal Circuit Court. While the fact that the appellant had legal representation below can be seen to weigh against a grant of leave, it is not decisive. A new ground of appeal may be allowed even where the proceedings below have been conducted with legal representation and all that can be said by way of explanation was that its significance may not have been apparent to the appellant’s lawyers in the hearing below: Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] (Yates J).

39    There is considerable doubt about whether ground 1(b) is really a new ground. It may be that the submissions on appeal emphasise different aspects of the appellant’s three accounts of the relevant events, or even that some of what was said in one or other of the accounts was not mentioned at trial but has been mentioned on appeal. As a matter of substance, there is little which is truly new in the appellant’s case on appeal. On appeal, like at trial, the appellant contends that the Authority erred in a way which gave rise to jurisdictional error, the error arising from the way the Authority dealt, or failed to deal, with each of the three accounts which the appellant had given of the relevant events. Even if the second ground strictly required leave, leave should be granted in light of the closeness of the ground to that which was argued at trial and the fact that the ground has sufficient merit to warrant a grant of leave. Leave should be granted notwithstanding that the appellant was legally represented at trial.

40    Before turning to the merit of the ground of appeal, something more should be said about the occasions on which a visa applicant such as the present appellant might give an account of relevant events.

Reviewing a visa applicant’s accounts of events

41    A person coming to Australia and claiming to be a refugee will ordinarily provide an account of relevant events on multiple occasions. These occasions, as they were in relation to the events the subject of that case, were described by the Full Court in W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757; [2002] FCA 379 at [11]-[15]. Unlike, the present case, W375 concerned a visa applicant who had ultimately sought review before the Refugee Review Tribunal. The four or five occasions in W375 were described in the following way:

[11]     When a non-citizen arrives in Australia without a visa, he or she is interviewed by an officer of the Minister’s Department (commonly referred to as an “arrivals officer”), who asks standard form questions and makes a written record of the answers that are given. One question asked is: “Why did you leave your country of nationality (country of residence)?” This appears to be the first opportunity a putative refugee has to explain why he fears persecution, although that is not the answer sought by the question. It must be remembered that people who come to Australia seeking refugee status often speak no English. So the question is usually answered with the assistance of an interpreter. It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant’s true case, and will often be given in words which the applicant would not have chosen were he able to speak English. This involves no criticism of the interpreter who assists the non-citizen in responding to the questions put by the “arrivals officer”. Far from it. Often the interpreter will not be aware of the significance that will be attached to the precise words that are used. It may be that the interpreter acts in the mistaken belief that a summary of the applicant’s case is sufficient. On some occasions the “initial interview” may be recorded.

[12]     The second occasion on which the putative refugee will give his account of events is on his application for a protection visa, which will also often be completed by the applicant with the assistance of an interpreter or an agent. In that application form the applicant is asked to provide “Your reasons for claiming to be a refugee”. In addition to the information provided in the application form, an applicant may provide an accompanying written statement which explains his position in a little more detail.

[13]     The third occasion on which the applicant will give an account of events is when he is interviewed by an officer called a “protection officer” who may be the delegate who considers the application. Often the interview is recorded, and, in any event, a written summary of the interview is prepared. That summary is made available to the Tribunal. Here again an interpreter will be involved if the applicant does not speak English.

[14]     If the applicant is refused a protection visa by the delegate, he may make application to the Tribunal for a review of that decision. This is the fourth occasion on which the applicant may give an account of the events, usually in the form of a written statement. Finally there is the hearing before the Tribunal where the applicant will be asked questions about his claims, and will provide more information.

[15]     As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

42    In the present case, the appellant did not give evidence before the Tribunal. Rather, the Authority conducted its review “on the papers” as broadly contemplated by Part 7AA of the Act – see: ss 473BA, 473DB. The process followed in the present case otherwise has much in common with the process described by the Full Court in W375. The appellant gave three accounts of certain of the critical events, with the assistance of a different interpreter on each occasion:

(1)    a first short account at the entry interview on 19 May 2013;

(2)    a second account by way of written statement on 7 March 2016; and

(3)    a third account under detailed questioning on 5 October 2016 at the SHEV interview.

43    There was also the account given by the appellant’s migration agent in his submission of 14 March 2016 which was made at the time the visa application and witness statement were lodged.

44    In AVQ15 at [24] to [28], a case which concerned a review by the Tribunal, the Full Court said:

[24]    In their text, The Law of Refugee Status (2nd ed, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as “a quest to disbelieve” (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):

As can be seen, the tools available to assess the credibility of an applicant’s testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant’s particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant’s understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.

(Footnotes omitted.)

[25]    One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

[26]    Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant’s interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.

[27]    Secondly, the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

[28]    Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

45    In ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38 at [42] to [45], the Full Court made the following comments about inconsistencies:

[42]    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

[43]    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

The effect of inconsistencies

[44]    Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

[45]    It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

46    Having made those preliminary comments, it is convenient to address the two components of the single ground of appeal together.

Consideration

47    There is no doubt that the Authority considered at least one answer which had been given in the entry interview. It expressly referred to the answer given by the appellant to a question posed at the entry interview: at A[25]. The appellant had stated that he did not know why the AAH wanted him to join them. The Authority contrasted this statement with what the appellant had later stated in the SHEV interview: at A[26].

48    The Authority did not otherwise refer to the entry interview and, more particularly, did not refer to it in its discussion of the perceived inconsistencies between the written statement and the SHEV interview. There was much in the entry interview which was consistent with what was later said by the appellant, both in his written statement and in his SHEV interview. It read as follows:

1.    Why did you leave your country of nationality (country of residence)? Because my life is in danger.

Q. Why is your life in danger? After working in the company, JSI, I was threatened. My brother’s shop was also burnt down at night time.

Q. When was your brother’s shop burnt down? In 2012, in May.

Q. Why was it burnt down? It was burnt down because I was working in the company JSI. The company had something to do with petrol, and people did not like anyone having to do with petrol.

Q. Who burnt down the shop? It was because I was threatened and told to leave the company. I was told to join the party Al Asaeb.

Q. Who burnt down your brother’s shop? The same poeple [sic].

Q. Who threatened you? The same people, the contact came from the Al Asaeb. They called me and told me to leave my work and to join them.

Q. Why did they want you to join them? I do not know why they wanted me. They are involved in gangs, crimes.

Q. What kind of group are they? They are terrorists,t hey [sic] do not believe in anything.

Q. When did you get threatened? End of April 2012.

Q. And then your brother’s shop was burnt down in May. Did anything else happen after that? The same night my brother’s shop was burnt down, around 0200, they came to our place and they started shooting. I was scared. We escaped from the back door to the neighbour’s house. I do not know what happened after that, we escaped. That night, we remained at our neighbour’s place.

Q. What happened after that? We transferred to Al Najmi, the farm area. I never went back there. According to the people I was in contact with, they were still looking for me. I was wanted.

Q. Are there any other reasons you decided to leave? Yes. Because of the threats of being killed and because I felt lonely. I used to live in a deserted area. My life was threatened. I do not know what would happen next. I was worried about myself, my mother and my brother. These are the reasons why.

49    The appellant’s written statement included:

The Islamic militias imposed strong surveillance on our work. They bar us from modern European haircuts and styling. Many barbers were attacked and killed in all the districts of Iraq. They banned the shaving of beards, checks, and moustaches. They particularly banned the trimming and the scrubbing of the face hair and the eyebrows. We tried all these years to avoid clashes. We used sometimes to do the haircuts and shaving behind curtains in hidden corners of the street to avoid retribution and murder. We were put under severe surveillance. The saloon was raided more than once. We were reprimanded and scolded. Threats never ceased.

In May 2010, I abandoned the saloon and left it under the custody of my brother [X]. I got a job in a foreign security company. Alex of the Spanish nationality was the director of that Company. During the two years of my service with that Company, I used to shave for all its workers in addition to the visiting delegations to its headquarters in west Basrah in the JSI Area. This company was entrusted with guarding the oil installations in the Basrah sector / Al-Ibradhiya. The company used also to carry out oil projects.

Late in April 2012, I received a telephone call from a group called “Asa’ib Ahl Al-Haq.” They threatened to kill me if I do not join them and leave my job. Frankly speaking, I gave no weight to that call. I didn’t expect them to commit a treacherous act against the house or against my mother or my brother or my saloon. Nonetheless, few days later and at 2a.m, they raided our home while we were asleep. They fired volleys of machineguns on our house that extremely terrified us.

We galloped without heeding the marauders and headed to the backdoor into a deserted land close to our house and from there, we hurried to the house of our neighbor Um Qais. We asked her to shelter us for a short period till we develop our plan. We stayed at her house two nights. Then we left to the City of Al-Zubair / Al-Najm Farms.

To our surprise, the doers arsoned the barbershop and destroyed it. They shot at it as an expression of their hatred and their determination to commit such crimes before arrival to the shop. We hired a house in that far farm. The houses there are made of mud and looks like ruins. The streets are unpaved. We stayed there for months seized with worries and thinking of what we have to do in these dangerous circumstances where the Islamists are dominating the country and marginalizing its structure and culture and killing its young men who committed no sin.

50    It can readily be seen from a comparison of these two excerpts that the relevant entry interview interpreter and the translator (or interpreter) of the written statement have different styles. Care needs to be taken not to visit such differences on a visa applicant through an ill-considered adverse credibility finding. The two excerpts also serve to show that differences in the length of an answer given can have significant effect on the detail which is provided. The length of an answer is affected by a number of circumstances, including the length of the interview offered and the visa applicant’s particular circumstances at the time. A visa applicant’s circumstances on arrival will be different to their circumstances some years later. The detail a visa applicant might provide is also necessarily affected by what the interviewer asks and the manner in which the questions are asked.

51    It will almost invariably be the case that there will be differences between the accounts given by a visa applicant. The jurisdiction which the Authority is given is one to “review” the decision of the delegate. A “review” contemplates a consideration and evaluation of the evidence and material before the Tribunal and of the arguments and issues which arise – see, in a different but analogous context: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [44]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114. A “review” requires a sufficient consciousness of the content of the material before the Authority relevant to the states of satisfaction the Authority is required to reach (see s 65(1) and ss 36(2)(a) and (aa)), or the matters it is required to decide, and that it evaluate that material and the relevant issues in a way which provides, as a matter of substance, a genuine review: WAEE at [45]; MZYTS at [38]. The jurisdiction to “review” is not properly discharged by merely identifying differences between some of the accounts given and labelling those differences “inconsistencies”. A “review” of the kind contemplated by Part 7AA must in fact be carried out; if it is not, then the Authority has failed to exercise its jurisdiction. The underlying issue is whether the Tribunal performed the function entrusted to it or performed its function in the manner contemplated by the statutory scheme: AXR16 v Minister for Immigration and Border Protection (2019) 163 ALD 296; [2019] FCA 42 at [92].

52    Turning first to the timing of the attack, the appellant submits that, when the Authority dealt with the perceived inconsistencies between what was said in the appellant’s written statement and what he said at his SHEV interview, the Authority did not consider the entry interview or, in particular, that part of it which addressed the time of the alleged attack.

53    The primary judge concluded that the Authority’s concern was that “two versions” had been given, and that it would not have mattered whether or not the Authority had considered the account of the events which had been given in the entry interview. The primary judge does not appear to have reached a firm conclusion as to whether or not the Authority in fact considered the entry interview when considering whether the appellant should be believed about his account of the timing of the alleged attack and the sequence of events.

54    I accept that the Authority did not consider the account of the timing of the alleged attack, or the account of the sequence of events, given in the entry interview when considering whether the appellant should be believed about whether the alleged attack occurred. The Authority was focussed only on the differences between the witness statement and the SHEV interview. The omission of any reference to the entry interview in that part of the decision where the Authority addressed the perceived inconsistencies in the accounts of the relevant events which the appellant had given is indicative, in the circumstances of this case, of a failure to consider it – see, for example: MZYTS at [49]-[50]. This is not the only conclusion open, but it is the preferable conclusion, given the absence of any reference to any aspect of the entry interview which was consistent with what the appellant had later stated.

55    The appellant submits that, if the Authority had reviewed the entry interview in the context of the appellant’s account of the timing attack, it would have noticed that the attack was expressed as occurring “around” 2am and that the timing of the attack was not intended to be precise. The later estimates of 2 am (witness statement) and 1 am (SHEV interview) might not have been regarded by the Authority as inconsistent if they had been assessed together with what had been said in the entry interview.

56    The Minister submitted:

The Minister accepted before the primary judge that the appellant told the interviewer at the entry interview that the attack on his home occurred at ‘around 0200’ (AB 13.7). That version correlated with the appellant’s written statement (AB 80.9). However, as the primary judge held, it was unnecessary for the IAA to refer expressly to the appellant’s answers given in the entry interview. That was because regardless of whether the appellant in that interview had said that the raid occurred at 1 am or at 2 am, the difficulty the IAA identified is that two versions had been given. Had the IAA expressly referred to the entry interview version given by the appellant as being consistent with the content of his SHEV statement, it could not have alleviated the discrepancy identified by the IAA.

57    This submission misses the point which the appellant makes. The point the appellant makes is that, if the Authority had considered the account given in the entry interview, it may not have reached the conclusion that “two versions” had been given as to the time of the attack. Each of the three accounts may have been viewed as being consistent with each other.

58    Further, if the Authority had also considered what the appellant had stated in the entry interview in relation to the sequence of events leading up to the claimed attack, it may not have concluded that the differences between the versions of events given in the witness statement and the SHEV interview were material or otherwise such that the appellant should be disbelieved. The Authority might have understood the evidence concerning the text message to be a matter of detail, rather than an inconsistency. It would have been open to conclude that the text message was not perceived by the appellant to be as significant as the phone call (which more immediately precipitated the attack) and that it was not mentioned earlier for that reason. Further, the Authority might not have regarded the evidence as to the time which had elapsed between the phone call and the attack as being materially inconsistent.

59    No doubt the Authority may still have disbelieved the appellant even if it had taken the entry interview into account in relation to the timing of, and sequence of events leading up to, the claimed attack. The point is that it should have taken the entry interview into account in relation to these issues when exercising its jurisdiction to review.

60    In failing to consider one of the three accounts of the events in relation to the timing of, and sequence of events leading up to, the claimed attack, the Authority failed properly to exercise its review function. If the Authority had considered each of the three accounts of the events, the Authority might have concluded that the three accounts were broadly consistent, or not such as to give rise to the kind of discrepancy which suggested that the appellant should be disbelieved.

61    The primary judge’s conclusion that it would not have mattered whether or not the Authority had considered the entry interview cannot be sustained. One simply does not know what the Authority would have concluded, but it was open to the Authority to conclude, on the basis of a consideration of all three accounts, that the appellant should be believed notwithstanding the differences in the accounts.

Materiality

62    The Minister submitted that the appellant did not seek to challenge the correctness of the Authority’s alternative finding which was not based on credit. At A[35], the Authority stated:

In view of the above country information, and given the passage of time of over four years since the claimed incidents in 2012, I consider that even if the [appellant] was threatened and attacked, which I do not accept, the [appellant] will not face a real chance of harm for reasons relating to his past work as a barber, his work in JSI or for being a non-practising Muslim, or for a combination of these reasons, if he were to return to Basra now or in the reasonably foreseeable future. In addition, the evidence before me does not indicate that the [appellant’s] older brother, who used to work as a barber, was threatened or targeted for harm since he stopped working as a barber. The [appellant’s] evidence that his older brother is living unharmed in Basra supports that the [appellant] will not face a real chance of harm for reasons relating to his past activities as a barber if he were to return to Iraq.

63    I interpolate that the significance of the appellant’s older brother not being attacked is unclear. The appellant’s brother ceased work as a barber in 2006 and moved to another area where he went to work in car sales. Given that the country information which the Authority accepted indicated that hairdressers and barbers had been targeted, and some killed, after the fall of the Saddam Hussein regime in 2003 until 2008, it would be open to conclude that the appellant’s older brother ceased to work as a hairdresser because of threats or the perceived risks. Ceasing to work as a barber might be thought to reflect an act of compliance rather than defiance. The appellant, on the other hand, worked as a barber from 2003 until the claimed attack in 2012. He fled Iraq. The appellant’s younger brother worked as a barber from 2006 until the attack in 2012. As mentioned, the appellant’s younger brother was killed in Iraq in 2013.

64    In any event, on the basis of the Authority’s conclusion at A[35], the Minister submitted that, even if the Court found error in the Authority’s consideration of the inconsistencies and omissions, it was not material error, referring to Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45]; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [109] and [122]; SLGB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 262 at [10]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [25].

65    The appellant submitted that the question of materiality could not now be raised as it had not been raised in the Federal Circuit Court and the Minister had not filed a notice of contention. The appellant also contended that, even if the Minister could raise the issue on appeal, the Minister’s submission was without merit.

66    In its application for judicial review before the Federal Circuit Court, the appellant bore the onus of establishing a realistic possibility of a different decision absent the jurisdictional error: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [39]. All of the material which was before the Federal Circuit Court is not before this Court. With that caveat, it appears that the case was conducted in the Federal Circuit Court on the implicit basis that the error, if otherwise established, was material. The Minister did not apparently put materiality in issue. In those circumstances, the appellant and the primary judge were justified in not expressly addressing it.

67    The issue should be dealt with on appeal. It was sufficiently raised and fully addressed.

68    The question whether the appellant faces a real chance of harm necessarily depends to some extent on what events occurred and why those events occurred. As noted above, the Authority reached a conclusion at A[35] that the appellant would not face a real chance of harm “even if the [appellant had been] threatened and attacked”. This was on the basis of country information indicating an improved situation for hairdressers and barbers since 2008 (A[23], [36]) and the lapse of time since the claimed events in 2012.

69    The Minister’s submission that there was no possibility of a different outcome has some force. Nevertheless, I think a conclusion that there was no possibility of a different outcome is unsafe for two reasons in particular.

70    First, the Authority stated at A[39] that, “having regard to the [appellant’s] accepted profile”, it considered “there is only a remote chance that the [appellant] will be harmed or targeted by AAH, JAM, other Shia armed groups or Sunni militant groups if he were to continue working as a barber upon return to Basra”. The Authority may have considered there to be something more than a remote chance if it had concluded that the appellant’s profile was different, which depends upon whether or not the relevant events occurred and why those events occurred, in particular why AAH wanted the appellant to join that group. The Authority’s assessment of the appellant’s “accepted profile” may have been different if it had accepted that the attack occurred and reached a conclusion about why it occurred.

71    Secondly, there is a danger in ignoring the effects an adverse conclusion on credibility can play in decision-making. Those effects might arise from conscious or sub-conscious thought processes. An emphatic disbelief on one issue can, consciously or subconsciously, affect the consideration of, or weight given to, other evidence of the person who is disbelieved: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81]; AXR16 at [42]-[43]; SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [45]. It can also affect the decision-making process more broadly.

72    The existence of an alternative finding for rejecting a visa application, which is truly independent of a credibility finding established to be affected by jurisdictional error, might often have the consequence that the established error is immaterial to the outcome. However, assessing the Authority’s reasons as a whole, I think it unsafe to conclude in the present case that there was no possibility of a different outcome. The finding at A[35] is not a true alternative in the sense of an alternative that it is entirely based on matters which are not affected by the adverse credibility finding. It is not sufficient to conclude for the purposes of materiality that a different decision is unlikely. The appellant must only go so far as to establish the possibility of a different outcome.

CONCLUSION

73    It follows that the appeal should be allowed.

Associate:

Dated:    14 December 2021