Federal Court of Australia

CYF19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 489

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    The name of the first respondent be varied to the Minister for Immigration, Citizenship and Multicultural Affairs.

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

REASONS FOR JUDGMENT

STEWART J:

1    At the conclusion of the hearing of the appeal, I dismissed the appeal with costs. These are my reasons for doing so.

2    The appellant is an asylum seeker from Iraq. One of the several grounds on which he has sought a protection visa is that he will suffer significant harm if returned to Iraq on account of the fact that he absconded (ie, did not formally resign) from his position as a guard in the Prime Minister’s Office (PMO) when he fled Iraq to Australia.

3    His application for a temporary protection visa (TPV) was refused by a delegate of the relevant Minister, whereafter it was referred to the Immigration Assessment Authority under Pt 7AA of the Migration Act 1958 (Cth). The Authority affirmed the decision of the delegate not to grant the appellant a protection visa. In respect of the claim for protection in question, the Authority found as follows (the numbering of each sentence being added by me for reference):

(1) Also I am not satisfied that the applicant did not resign from his position with the PMO prior to his departure from Iraq, as he claimed at the TPV interview. (2) Nor am I satisfied there is a real chance he will be prosecuted or otherwise harmed in connection with his former employment. (3) The applicant has not claimed that authorities have approached his family in the six years he’s been absent from the country to enquire as to his whereabouts or to serve them with documents charging him with any offence relating to his failure to report to work. (4) In any case, neither the applicant nor his representative has provided country information indicating the Iraqi authorities punish persons who fail to resign from security positions, and the country information that is before me does not suggest it is the case. (5) I also note the applicant’s evidence about this matter at the TPV interview, that he did not resign because the process takes a year, contradicts the claim in the submission accompanying the TPV application that he had resigned from his PMO role.

4    In respect of that finding, the appellant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia (as that Court was then styled) on the basis that the Authority “fell into jurisdictional error in making this finding because the reasons in support of the finding lacked an evident and intelligible justification and the finding was thereby legally unreasonable.” The primary judge rejected that ground on the basis that it was rational and logical for the Authority to take into account the absence of country information indicating that persons who failed to resign are punished. Also, the inconsistency in the accounts given by the appellant that he had not resigned and that of his migration agent that he had resigned was a further logical and rational basis to support the adverse finding.

5    On appeal to this Court, the appellant contends that the primary judge was in error in rejecting the ground of review referred to. In effect, the appellant reasserts the same ground in the appeal.

6    The appellant, in submissions, identifies two reasons given by the Authority for its finding that it was not satisfied that the appellant did not resign from his position as a guard with the PMO. The first reason is that the Iraqi authorities had not approached the appellant’s family in the six years the appellant had been absent from the country to enquire after him. The second reason is that the appellant’s evidence as to his inability to resign given at the TPV interview contradicts the claim in the submission by his agent accompanying the TPV application that he had resigned from his PMO role.

7    The appellant advances several submissions as to why those reasons are ill-founded such as to be legally unreasonable.

8    The difficulty, however, is that even if those reasons are legally unreasonable such that one can assume that he did not resign and rather absconded, the appellant faces the insurmountable hurdle of the finding in the fourth sentence quoted at [3] above. That is the finding that neither the appellant nor his representative provided country information indicating that the Iraqi authorities punish people who fail to resign from security positions, and that the country information before the Authority did not suggest that to be the case. There was no evidence before the primary judge, and there is none before me, to support the appellant’s case that he would face serious harm on account of having absconded, and not resigned, from the PMO guard.

9    In those circumstances, a critical component of the appellant’s claim for protection is missing. On that basis, even if the alleged error had not been made that would have made no difference to the final decision. The requirement that the error be material before it can amount to jurisdictional error is therefore not met. That is even taking into account that the requirement of materiality is described in the most recent High Court authority as an “undemanding” standard: Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33].

10    The appellant contends that had the Authority’s finding on the question of his resignation been different, its finding on the risk of harm might also have been different. In support of that submission, the appellant points to the use by the Authority of the word “suggest” in saying that the country information does not “suggest” that a person will face harm on account of not having resigned. It is said that that reflects a degree of equivocation by the Authority on the question.

11    I do not accept that submission. The Authority made a positive finding that no country information was provided in support of the appellant’s case with regard to facing harm on account of not having resigned. Moreover, before me the appellant’s counsel accepted that there was no “positive country information” in support of the case with regard to harm.

12    The appellant also submits that the second sentence that I have quoted above is a finding with regard to the risk of the appellant facing harm in connection with his former employment, and that the fourth sentence is a reason for that finding. That is to say, the appellant contends for a slightly different reading of the paragraph such that the opening words of the fourth sentence, “In any case”, do not connote that what is said in that sentence is an alternative in the sense that the Authority is saying that even if it is wrong on the finding in the first sentence the claim must fail on account of the lack of risk of harm.

13    I do not consider that that is the most reasonable and obvious way of reading the paragraph, but it does not really matter. On the appellant’s reading, there is a positive finding, in the second sentence, of a lack of satisfaction that there is any real chance that the appellant will be prosecuted or otherwise harmed in connection with his former employment which is independent of the finding rejecting his case that he did not resign. That is to the same ultimate effect as the reading which I prefer, which is that the second sentence is built on the first and that the fourth sentence stands independently.

14    In the result, on either approach, there is an unimpugned finding that the appellant will not face harm on account of not having resigned from the PMO if he returns to Iraq. That is fatal to his claim for protection.

15    I am therefore simply not satisfied that even if the Authority had found that the appellant had not resigned, the ultimate decision could have been any different. For that reason, I dismissed the appeal. Costs should follow the event.

Associate:

Dated:    17 May 2023