Federal Court of Australia

AIS17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1221

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    The appellant is an Iraqi national who claims to fear harm from Shia militia in Iraq. He arrived in Australia by boat on 18 October 2012. In these circumstances he was an “unauthorised maritime arrival” within the meaning of the Migration Act 1958 (Cth) (the Act) and therefore an “unlawful non-citizen” prevented by s 46A(1) of the Act from lodging a valid application for any visa while in Australia. But the responsible Minister exercised the power in s 46A(2) to invite the appellant to apply for a Temporary Protection (Subclass 785) visa (TPV). The appellant accepted the invitation and, on 13 August 2015, with the assistance of a migration agent, the appellant lodged an application for a TPV, attaching a number of documents including his statutory declaration in support of the application.

2    On 26 September 2016, following an interview with the appellant, a delegate of the responsible Minister was not satisfied that the criteria for the grant of a TPV had been satisfied and therefore refused to grant the visa. The application was subsequently referred to the Immigration Assessment Authority (Authority) in accordance with the regime in Pt 7AA of the Act. On 25 November 2016, the Authority affirmed the decision of the delegate. The appellant applied to the court below for judicial review of that decision but his application was dismissed. This is an appeal from that judgment. For the following reasons the appeal must also be dismissed.

The legislative scheme

3    Section 65 of the Act gives the Minister the power to grant visas to non-citizens. Upon the lodgement by a person of a valid visa application and the payment of the requisite fee, it compels the Minister to grant the visa if the Minister is satisfied that the criteria for the grant of the visa are satisfied but otherwise compels him to refuse to do so. The criteria are contained in the Act and the regulations made pursuant to it. The power in s 65 may be exercised personally or through a delegate (s 496).

4    One class of visa is the protection visa. The criteria for a protection visa include the criteria in s 36(2) of the Act, namely that the applicant is:

(1)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations, either because:

(a)    the applicant is a refugee (s 36(2)(a), commonly referred to as “the refugee criterion”); or

(b)    the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm (s 36(2)(aa), commonly referred to as “the complementary protection criterion”); or

(2)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in either (a) or (b) above and holds a protection visa of the same class as that for which the applicant applied (s 36(2)(b) and (c)).

5    Amongst other things, for a person with a nationality to be considered a refugee for the purposes of the Act the person must be outside their country of nationality and, owing to a well-founded fear of persecution in that country for reasons including race, religion, membership of a particular social group or political opinion, be unable or unwilling to avail themselves of the protection of that country: ss 5H and 5J. There will be a well-founded fear of persecution if there is a real chance that on return to their country of nationality, the person would be persecuted for one or more of those reasons everywhere in that country: s 5J(1). The reason(s) must be “the essential and significant reasons” for the persecution; and the persecution must involve both “serious harm” to the person (the visa applicant) and “systematic and discriminatory conduct”: s 5J(4). “Serious harm” includes “a threat to the person’s life or liberty”; “significant physical harassment”; and “significant physical ill-treatment”: s 5J(5)(a)–(c). It also includes “significant economic hardship”; “denial of access to basic services”; and “denial of capacity to earn a livelihood of any kind”, in each case “where the denial threatens the person’s capacity to subsist”: s 5J(5)(d)–(f).

6    “Significant harm”, for the purposes of the complementary protection criterion, is defined in s 36(2A) to mean arbitrarily depriving a person of their life; the imposition of the death penalty; or subjecting a person to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

7    The review process is set out in Pt 7AA. It provides for a limited form of review, quite different from the process provided for in Pt 5 for applications for other kinds of protection visas. The process of review in Pt 7AA is automatic in that it does not depend on the lodgement by the unsuccessful visa applicant of an application for review. If the Minister (or the Minister’s delegate) decides not to grant the visa, the Minister must refer the application to the Authority. The default position is that the review is conducted on the papers, with no oral hearing. And information which was not before the original decision-maker can only be taken into account in limited circumstances.

8    The obligation of the Authority is to review a decision referred to it by the Minister (s 473CC). It is required to do so by “considering the review material” provided to it by the Secretary of the Minister’s Department “without accepting or requesting new information”, except to the extent that it “gets” new information from the referred applicant or some other person under s 473DC and proceeds to “consider” that new information under s 473DD: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [2].

9    “Information” in this context is “a communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [24] (Gageler, Keane and Nettle JJ). Information is “new information” for the purposes of Pt 7AA if it satisfies two conditions: first, it is information that was not before the Minister at the time of the making of the decision to refuse to grant the visa and second, it is information the Authority considers may be relevant: s 473DC(1). The Authority may invite a person to give new information either in writing or at an interview: s 473DC(3). But the Authority has no duty to get, request or accept any new information when requested to do so or in any other circumstances: s 473DC(2). And it is only permitted to consider new information if the conditions imposed by s 473DD are met.

10    At the time of the Authority’s decision, s 473DD provided:

Considering new information in exceptional circumstances

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

11    In AUS17 at [11] Kiefel CJ, Gageler, Keane and Gordon JJ held that “[l]ogic and policy … demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a)”. If neither criterion is met, the Authority is prohibited from considering the new information, and the condition in s 473DD(a) is redundant. Their Honours observed at [12] (footnotes omitted) that:

The result … is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

12    As with all administrative decisions made under the Act, there is no right to appeal or otherwise challenge a decision of the Authority (s 474), unless the decision is affected by jurisdictional error: Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476.

The appellant’s claims

13    In substance, as the Authority put it, the appellant claims to fear that he will be killed by Shia militia because he worked with coalition forces and is considered to be an infidel and a supporter of the United States.

14    The appellant claimed that he worked for several months in 2009 as a cleaning contractor for another contractor who was working for the US forces at the Imam Ali air base in Nasiriya. He said he would do cleaning or building jobs outside the American air base but that he commuted to the base each day by bus from his home. He claimed that in 2009 he and others were threatened on a bus on the way to the air base by the Asa’ib Ahl al-Haq (AAH), a splinter group of the Mahdi Army (both Shiite militia groups). He said that the militia could not shoot him and the passengers on the bus because the base was under US Army control. The appellant also claimed that on 1 September 2009 he received a letter from the AAH, accusing him of being a traitor and collaborator with Zionist forces and threatening to kill him unless he stopped working with US forces (threatening letter). He said he was so frightened when he read the letter that he moved his family, first to his wife’s home village, where he and his wife and children stayed for about a week, and then to a village in the Kurdish Autonomous Region of northern Iraq. He said he lived and worked in that village from 13 September 2009 to 20 September 2012. He claimed to have left the region because the Kurdish authorities started harassing the Arabs living in the area and asked them to leave. As he had no “guarantor” in the Kurdish area, he said he returned to the area where his family was living but only stayed for a week before travelling to Australia.

15    The appellant claimed to have fled Iraq because he was perceived to work with the coalition forces and the militias usually target people who work for the coalition forces and kill them because they regard such work as being against their religion. He claimed that his neighbours had been questioned by the AAH about his whereabouts and that his wife has been subject to interrogation and harassment by the mayor of the village who was a member of the AAH.

16    One of the documents attached to the appellant’s statutory declaration was a copy of a letter written in Arabic and an English translation which he said was a copy of the threatening letter. The letter was dated “1/9/2009” and purportedly issued by “Asaeb Ahl Alhaq in Iraq”. It was apparently addressed to the appellant in that it was directed to a person with the same name as that appearing on a number of the appellant’s identity documents, including his citizenship certificate and residence card. The English translation reads:

IN THE NAME OF GOD, THE MOST MERCIFUL, THE MOST COMPASSIONATE

And prepare against them whatever you are able of power and of steeds of war by which you may terrify the enemy of Allah and your enemy and others besides them whom you do not know [but] whom Allah knows. And whatever you spend in the cause of Allah will be fully repaid to you, and you will not be wronged.

We made ourselves the soldiers of the righteous to defend our sacred land and religion from the profanity of the infidels and its followers.

To the traitor [AIS 17] the collaborator with the Zionist coalition forces, we order you to leave the work with the Jews and Christians, otherwise death will be your destiny

17    Behind the text of the Arabic document was an image of a flag attached to a rifle, which the delegate described as a logo and the Authority as a watermark. There appears to be handwriting on the flag but, if that is correct, the handwriting was not translated.

18    The delegate acknowledged that the letter contained “wording consistent with” the appellant’s account of the threat it allegedly contained. But delegate gave no weight to the document because it was a copy, incapable of being verified or examined “for alteration or erasure”, and a search of country information did not reveal that the logo depicted on the letter had been used by either the AAH or the Mahdi Army.

The submission to the Authority

19    A written submission was made to the Authority by the appellant’s migration agent.

20    The submission began by noting that the delegate accepted that the appellant worked as a cleaner/labourer at the base in Nasiryah but said that she had not been able to find country information referring to the use of the logo depicted in the AAH Letter. The submission contained a photograph of what was said to be “the official logo” of the AAH and the source was identified in a footnote as https://en.wikipedia.org/wiki/Asa%27ib_Ahl_al-Haq (Wikipedia reference). The agent submitted that “Google tells us” that AAH used different logos (attaching another link which is not possible to open) and that at some stage the AAH used the logo that appears on the threatening letter. The agent went on to say that a Lebanese television station (almustaqbal TV) had referred to that logo “under the following link[:] http://www.almustqbalnews.net/58347” (AAH logo link).

21    Amongst other things, the agent also referred to a report from the UK Home Office published in August 2016 (Home Office Report) and purported to refer to two excerpts from that report. The agent submitted that the report shows that Shia militia are currently even more powerful than they were, and are more capable of harming those they perceive to be traitors.

The reasons of the Authority

22    I will deal first with the information contained in the submission to which I have referred above.

23    The Authority considered that the AAH logo link and the Home Office Report to be “new information” for the purposes of s 473DC(1) but observed that the submission included no explanation as to why the information could not have been given to the Department before the delegate made her decision or why the information was credible personal information which was not previously known and could have affected the consideration of the appellant’s claims had it been known.

24    The Authority then considered whether there were exceptional circumstances to justify considering the new information.

25    It referred to the representation in the submission that the logo used in the threatening letter the appellant claimed to have received from the AAH was depicted on the website of the Lebanese TV station as the logo for the AAH. The Authority acknowledged that the image included in the article on the website “corresponds to the watermark on the claimed threatening letter”, but noted that the website was in Arabic and no English translation of the contents of the article had been provided. For this reason the Authority was not satisfied that there were exceptional circumstances to justify considering that information.

26    The Authority compared the first excerpt mentioned in the submission with an excerpt upon which the delegate relied in a previous edition of the Home Office Report and found it to be “substantially similar”. It noted that the second excerpt was taken from an attachment to the Home Office Report and provided an assessment of violence in Baghdad prepared by the British Embassy there. The Authority considered the information to have “limited relevance” to the question of the chance the appellant would be harmed if he returned to Iraq on the basis that the information before the delegate suggested that the incidence of violence varies widely across Iraq and the Authority found that the appellant would return to his home which was in a province in the south of Iraq. The Authority also noted that there was a range of information before the delegate about the activities of Shia militia in Iraq. Accordingly, the Authority was not satisfied that there were exceptional circumstances to justify considering it.

27    On the other hand, the Authority decided to take into account new information it had obtained in relation to individuals in Iraq who had or have a perceived association with US forces contained in a publication of the United Nations High Commissioner for Refugees entitled “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Iraq”. Although the information was not specifically about the appellant, the Authority said this new information was about classes of persons of which the appellant was a member and, in view of the limited information before the delegate about such classes of persons, the Authority was satisfied there were exceptional circumstances to justify considering it.

28    I now turn to the Authority’s reasons for not accepting the appellant’s claims.

29    The Authority accepted that the appellant was a Shia Muslim, who in the 1990s completed three years of compulsory military service as a private in the Iraqi infantry. It also accepted that he worked as a cleaner and labourer subcontracted to an Iraqi contractor to US forces at the air base in Nasiriya from about February 2009 until 1 September 2009. Further, the Authority noted that independent country information suggested that Shiite militia groups were in conflict with US forces at the time the appellant claimed to have been threatened and that these groups had reason to be hostile towards people who were seen to be working for and with US forces.

30    But owing to inconsistencies in the appellant’s accounts, including his failure to mention any such episode in his visa application, the Authority did not accept that the appellant had been threatened by Shia militia while he was on a bus on his way to the air base. The Authority accepted that that variations or errors in the use of the AAH logo could occur within a large militia organisation. But it did not accept that the appellant was perceived by the AAH, any other Shia militia group, armed Sunni groups or any other group or person, to be a supporter of the US or an infidel as a result of his seven-month period of employment as a cleaner and labourer. In these circumstances, and allowing for the prevalence of document fraud in Iraq, the Authority did not accept that the appellant had received a threatening letter from the Authority on 1 September 2009. Consequently, the Authority did not accept that his family's move to the Kurdistan region of the country was motivated by the receipt of such a letter. Nor did it accept that he had been questioned and intimidated or that his neighbours had been questioned about his whereabouts.

31    The Authority then proceeded to consider whether the appellant satisfied the criteria in s 36. In short, having regard to its findings, it was not satisfied that there is a real chance the appellant would be harmed if he were to return to Iraq — whether as a person perceived to be an infidel and supporter of US forces, as a former member of the Iraqi security forces, as a Shia and as a result of the security situation in Iraq, as an unsuccessful asylum seeker who has been living in Australia for a number of years, or by reason of a combination of these factors. For the same reasons it was not satisfied that the appellant would face a real risk of significant harm.

The application for judicial review

32    The appellant relevantly applied for an order quashing the decision of the Authority. He was the author of the application.

33    The grounds of the application were as follows (without alteration):

 1.    Immigration Assessment Authority is not satisfied there are exceptional circumstances to justify the consideration of this information.

 2.    The court stated “I do not accept that he applicant was threated by Shia militia or any other group or person while in the bus on his way to work near the Imam Ali base as claimed.

 3.    I have provided the court with a letter with the AAH logo which they don’t believe.

4.    Complementary protection conclusion. “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 risk that the applicant will suffer significant harm. the applicant does not meet s.36(2)(aa).”

34    The primary judge held that none of the grounds were made out.

35    Evidently at the hearing the appellant confirmed that ground 1 was a complaint about the Authority’s finding that it was not satisfied there were exceptional circumstances to justify considering new information. The primary judge held that its finding was open on the evidence and material before it for the reasons it gave.

36    With respect to ground 2, the primary judge held that, in view of the fact that the Authority found the appellant’s account confusing and his evidence inconsistent, it was open to the Authority not to accept that he was threatened on a bus as claimed and that it was also open to the Authority to make adverse credibility findings. Her Honour considered that the adverse credibility findings were “based on rational grounds” which were “logically probative of the issue of credibility”.

37    By ground 3, the appellant took issue with the Authority’s finding that he did not receive a letter from the Authority dated 1 September 2009. Her Honour referred to the Authority’s reasons and concluded that its finding was open on the evidence and material before it for the reasons it gave.

38    The appellant confirmed to the primary judge that ground 4 was “a disagreement” with the finding of the Authority that he did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. After reviewing its reasons, her Honour held that the Authority was entitled to come to the conclusion that the appellant was not at real risk of significant harm on any of the bases he had advanced (either expressly or by implication).

The grounds of appeal

39    Three grounds are raised by the notice of appeal. They are that the primary judge erred in failing to find that:

(1)    the Authority “misapplied the test in s 473CB by not considering all “the review material” which included the Wikipedia article referenced in the footnote to his submissions (the Wikipedia link);

(2)    in not accepting the appellant’s claim to have been threatened on a bus as he alleged, the Authority “did not engage in an active, logical reasoning process”; and

(3)    the Authority’s finding that the threatening letter was fraudulent was not based on an assessment of the letter but on the Authority’s non-acceptance of his claim.

40    Orders were made, amongst other things, requiring the appellant to file submissions in support of his appeal but he did not do so. At the hearing, where he appeared with the assistance of an Arabic interpreter, the appellant confessed to difficulty addressing the grounds. Insofar as he addressed the grounds, his comments were unhelpful. In making this observation I intend him no disrespect. As a litigant in person he was at a considerable disadvantage.

Did the Authority fall into jurisdictional error by failing to consider all the review material, including the Wikipedia link (ground 1)?

41    In relation to this question the appellant candidly informed the Court that he did not know what the Authority did wrong.

42    The Authority’s duty to consider “the review material” arises from s 473DB, not s 473CB. Section 473CB imposes a duty on the Secretary to give the Authority “the review material”. It relevantly states that:

Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

…

43    Insofar as the appellant’s grievance was related to the Wikipedia link, I was not taken to any material to indicate that it was provided to the delegate before the decision was made to refuse to grant the visa. Certainly, the delegate does not mention it.

44    It was not argued in the court below that the Authority erred by overlooking the Wikipedia link. As this point was not raised below, the appellant technically required leave to raise it on appeal and leave will only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46]–[48] (Kiefel, Weinberg and Stone JJ). The practice of raising arguments for the first time on appeal has been deprecated by the Court on numerous occasions. In VUAX the Full Court said that where a point appears to be of doubtful merit and there is no adequate explanation for the failure to take it below, leave should generally be refused. Here, no explanation was given for the omission. But in the present case the Minister was content for the argument to be considered on its merits and, in the circumstances, so too, am I.

45    The Authority made no express reference to the Wikipedia link. The Minister submitted that the appellant only relied on the information as “background” and it was treated by the Authority as part of the submission. That may well be so. But if it was not provided to the Minister or his Department before the delegate’s decision was made, then the Wikipedia link was also “new information” in that it was a communication of knowledge about a particular fact not provided to the delegate (see above at [9]). If it was “new information”, then the Authority was prohibited from considering it unless the appellant first satisfied the Authority that it was not, and could not have been, provided to the Minister before the decision was made to refuse to grant the visa (s 473DD(b)(i)) and the Authority was satisfied that there were exceptional circumstances to justify considering the information (s 373DD(a)): AUS17 at [12].

46    In the present case the Authority referred to the practice direction which alerts applicants, representatives and others seeking to provide new information to the Authority on behalf of an applicant to provide an explanation as to why the information could not have been given to the Department before the decision was made or is “credible personal information” not previously known and which could have affected consideration of the applicant’s claims had it been known. As I mentioned earlier, with respect to the “new information” the Authority refused to take into account (the AAH logo link and the Home Office Report), which, like the Wikipedia link was not “personal information”, the Authority noted that no such explanation was included in the appellant’s submission. The Authority also noted that the appellant did not offer any evidence to explain why the information could not have been provided to the delegate.

47    It is plain that the appellant did not satisfy the Authority that the “information” could not have been provided to the Minister before the delegate’s decision was made. And in the absence of any explanation, the Authority cannot be said to have erred by failing to take the information into account. The same must be said of the Wikipedia link if that is properly to be regarded as “new information”.

48    As Mortimer J observed in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33], the statutory condition for considering “new information” in s 473DD(b)(i) (that “the referred applicant satisfies the Authority that … the new information” “was not, and could not have been provided to the Minister before the Minister made the decision”) “at least calls for some material from an applicant by way of explanation” and in circumstances in which no such material is put before the Authority to explain why this information is relied upon for the first time on the review, the Authority cannot be said to have erred by failing to take it into account. See also BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] (Gilmour J); ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826; 166 ALD 59 at [62] (Stewart J); and BBK19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1001 at [8] (Allsop CJ).

49    In any event, the onus is on the appellant to prove jurisdictional error and that requires him to establish on the balance of probabilities that the error was a material one. That means that it is incumbent on him to at least identify “the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made” if the information had been taken into account: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441; 390 ALR 590 at [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Yet, the appellant did not establish that the failure of the Authority to address the Wikipedia entry was material. When I asked him what difference it could have made, if the Authority had considered it, he was unable to tell me. And I do not see how he could have. The Wikipedia reference was to the official logo of the AAH. The appellant did not contend that the letter bore the official logo. His contention was that the AAH also used other logos and it was one of those other logos which was used on the threatening letter. And the only evidence he proffered to the Authority of the use of the logo appearing on the letter was the link to the Lebanese website which was in Arabic.

50    As for the other “new information” the Authority determined not to consider, the primary judge did not err in rejecting the appellant's contentions. As the Minister submitted, not only did the appellant not do anything to try to satisfy the Authority that the information could not have been provided before the delegate's decision was made, but he did not provide any translation of the contents of the web page, and the Home Office Report either repeated information that was already before the delegate and referred to the Authority or did not readily apply to the appellant's circumstances.

51    It follows that ground 1 is not made out.

Did the primary judge err by failing to find that the Authority “did not engage in an active, logical reasoning process” in not accepting the appellant’s claim to have been threatened on a bus as he alleged (ground 2)?

52    There is no merit in ground 2 either. While minds might differ as to whether the Authority came to the right conclusion, that does not mean that either the conclusion it reached or its process of reasoning was illogical.

53    It is beyond question that the mere fact that an alleged error is one of fact does not make it immune from challenge: BHD18 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2020) 280 FCR 26 at [29] (Allsop CJ, Collier and Colvin JJ). As the Full Court went on to explain in that case, an erroneous finding of fact might constitute jurisdictional error if it is shown to be irrational, unreasonable or lacking in an intelligible justification in the senses contemplated by such authorities as Minister for Immigration and Citizenship v Li (2013) 249 CLR 232 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ). As the Minister submitted, however, the threshold is very high. It has not been crossed in the present case.

54    In SZMDS at [130] Crennan and Bell JJ pointed out that “not every lapse in logic will give rise to jurisdictional error” and that a court should be slow to interfere. At [131] their Honours said of a complaint of illogicality or irrationality which is said to lie in the process of reasoning:

[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

55    In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [47] Griffiths, Perry and Bromwich JJ observed that:

[F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

56    In the present case, however, the Authority’s reasons are not amenable to challenge on this account.

57    The Authority’s reasons for not accepting the claim that the appellant had been threatened on a bus on his way to work appear at [21]–[22] of its decision record:

The applicant’s claim to have received threats from Shia militia while he was in the bus en route to work near the Imam Ali air base was first raised during his TPV interview. It was not included in the written statement of claims he provided as part of the TPV application, which was prepared with the assistance of a representative. The applicant’s account of these threats during the TPV interview was somewhat confusing. Initially he said that the Shia militia used to stop them on their bus journey to the air base and tell the applicant and others on the bus that they were traitors and they would kill them for working for the US The delegate noted that this was a new claim and asked for more information about the claimed threats including how many times the bus was stopped in this way by Shia militia. The applicant acknowledged that he had not mentioned this matter previously and indicated that in fact the militia did not stop their bus; they pointed guns at them and threatened them through the windows of the bus. When the bus was stopped and the windows were open, the militia came over and threatened them, saying they were traitors, they knew who they were and they were going to kill them. The applicant explained that the area where the militia approached the bus was controlled by the US so the militia could not shoot them there. When asked by the delegate how often this occurred, the applicant said two or three times. He later said it occurred once in August 2009.

I accept that small misinterpretations can result from misunderstandings and different use of language, and I have considered whether misinterpretations of this type could account for the confusing nature of the applicant’s account of these events during the TPV interview. However, I consider that the inconsistencies in the applicant’s evidence regarding the number and nature of these incidents are more significant than can be accounted for on this basis. These inconsistencies, and the applicant’s failure to mention these matters in the statement of claims provided as part of his TPV application, lead me to seriously doubt the veracity of the applicant’s claims in this respect. I do not accept that the applicant was threatened by Shia militia or any other group or person while in the bus on his way to work near the Imam Ali base as claimed.

58    There is nothing illogical, irrational or unreasonable about the Authority’s reasoning. As the Minister submitted, it is apparent that the Authority gave this matter careful consideration. It was open to the Authority to treat the failure to refer to the matter in the appellant’s visa application as a factor militating against the truth of the claim, particularly when the application had been prepared with the assistance of a migration agent. And the Authority was also entitled to regard the inconsistencies in the appellant’s account as neither trivial nor inconsequential.

59    The appellant’s description of the Authority’s reasoning is no more than an emphatic way of expressing disagreement with it: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J). Put another way, it amounts to an invitation to the Court to review the merits of the Authority’s decision. That much was clear from the little the appellant said about this ground in oral argument. But neither this Court nor the Federal Circuit Court is empowered to review the merits of the Authority’s decisions or set aside factual findings because it may disagree with them. As Brennan J put it in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

Did the primary judge err by failing to find that the Authority’s finding that the threatening letter was fraudulent was not based on an assessment of the letter but on the Authority’s non-acceptance of his claim (ground 3)?

60    Before the primary judge the appellant contended that the Authority should have accepted that the letter involved a genuine threat. The primary judge rejected that contention. Now the appellant alleges that the Authority erred by finding that the letter was fraudulent without considering the letter itself.

61    As the Minister submitted, the appellant’s allegation is based on a misreading of the Authority’s reasons.

62    The Authority’s reasons on this question appear at [23]–[31] of its decision record.

63    For a start, the Authority did not find that the threatening letter was “fraudulent”. Rather, the Authority was not satisfied that the letter was genuine. The distinction is real and not unimportant.

64    Second, contrary to the appellant’s assertion, the Authority did consider the letter. Indeed its reasons on this matter begin with a consideration of the letter. It noted the reasons given by the delegate for declining to give weight to the letter and the submission made by the appellant’s representative that the logo on the letter was one of several used by the AAH. Unlike the delegate however, the Authority accepted the possibility that variations or errors in the use of the logo could occur in a large militia organisation like the AAH. It then referred to the appellant’s claim that similar letters had been sent to other individuals. It described this evidence as “vague and somewhat inconsistent” and observed that country information on Iraq reported that “counterfeit documents or fraudulently altered/obtained documents are commonly and cheaply available in Iraq”. It observed that if, as the appellant claimed, the “AAH did not seek only to discourage people from continuing their association with US forces, but also intended to kill the people to whom they sent threatening letters regardless of their response to the threat, it is not clear why the AAH sent threatening letters and didn’t kill the applicant and others, given that they had apparently obtained their addresses”.

65    On the other hand, the Authority acknowledged that there was country information that certain civilians in Iraq were at risk of serious harm from armed militia because of their imputed political opinions. In particular, it acknowledged there were reports of armed Shia groups targeting people considered to be collaborators with foreign forces, especially the United States. Moreover, the Authority remarked that, while the country information indicated that the risk had “diminished somewhat in recent years”, the risk of violence to those who had worked with the international community was assessed by the Department of Foreign Affairs and Trade as “moderate”. The Authority also mentioned UNHCR Guidelines which referred to a 2010 report of attacks by Kata’ib Hezbollah, another Shia militia group, on Iraqi civilians who support democratic reform which would not result in an Islamic Shia leadership.

66    The Authority observed that the country information relates to people who worked for, or with, the international community. But the Authority considered it significant that the information suggests that those targeted in attacks have usually worked “directly” for, or with, US forces and that the appellant worked outside the perimeter of the air base and not directly for, or with, US forces. And it also noted that the appellant did not claim to have been perceived to be a supporter of democratic reform in Iraq or an opponent of the political goals of Shiite militia groups, “other than as a result of his employment”.

67    Based on the information it had, the Authority did not accept that the appellant was perceived by any group or person to be a supporter of the US or an infidel as a result of his seven month period of employment as a cleaner and labourer. In view of this finding, and having regard to information before the delegate regarding the prevalence of fraudulent documents in Iraq, it did not accept that the appellant received a threatening letter from the AAH on 1 September 2009.

68    The Authority’s reasoning was not infected by jurisdictional error. As the Minister submitted:

Central to the [Authority]’s reasoning was the country information that supported its conclusion that the appellant was not at risk. It is clear from [31] of the Decision that this was the principal reason why the [Authority] rejected the appellant’s claims although the [Authority] clearly had concerns that the AAH Letter may not be genuine. It was the lack of support for the appellant’s claims in the country information that was the important feature. It was in that context that the IAA made what was, in effect, a tentative finding that the AAH Letter could be unreliable. There was nothing illogical about this. The [Authority] declined to give the AAH Letter significant weight because it was unlikely that the appellant would be threatened in the way he claimed. The potential for the letter to be counterfeit added weight to the [Authority]’s concerns. No reviewable error arose.

69    For these reasons ground 3 must be rejected.

Conclusion

70    Each of the grounds of appeal has been rejected. It follows that the appeal must be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    14 October 2022