Federal Court of Australia

DLH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 996

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal is to be dismissed.

2.    The first, second, third and fourth appellants are to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing the appellants’ application for a review of a decision of the Immigration Assessment Authority (Authority): DLH17 v Minister for Immigration and Border Protection [2022] FedFamC2G 165 (J).

2    The first and second appellants are citizens of Iraq.

3    On 29 September 2012, the first appellant arrived in Australia with his wife, the second appellant, and their three older children, the third to fifth appellants, as unlawful maritime arrivals.

4    On 17 September 2016, the youngest child of the first and second appellants, the sixth appellant, was born in Australia.

5    On 15 March 2017, applications for temporary protection visas (TPVs) by the first appellant and his family, the second to sixth appellants, were refused by a delegate of the first respondent (Minister). On 13 July 2017, that refusal was affirmed by a decision of Authority. The only substantive claims for protection were advanced by the first appellant.

6    For the reasons that follow, I have concluded that the appeal should be dismissed.

B.    Background

7    The following background facts, except where indicated, were accepted by the Authority and not challenged on appeal.

8    From mid-2006 to June 2008, the first appellant worked for his brother, on a casual basis, several days a month, transporting goods from Baghdad Airport to the US military bases between Al-Kut and Hillah. During this period, the first appellant lived with his extended family in Karbala.

9    On 16 June 2008, the first appellant’s brother was killed while driving between Baghdad and Karbala. No group claimed responsibility for his death and there were no witnesses.

10    About ten days after the death of the first appellant’s brother, two men on a motorcycle attempted to kidnap the appellant’s oldest child while he was playing on the street outside the family home.

11    The first appellant alleges that after another ten days, a grenade was thrown into the front yard of his family home (grenade incident). The Authority did not accept that the grenade incident took place. The first appellant claimed that the grenade incident and the attempted kidnapping were related to the work he had done for his brother and that he would be killed like his brother. He claimed that he had never previously had any problems due to being a Shia Muslim in Karbala, or for any other reason.

12    In July 2008, the first to fourth appellants fled to Syria fearing harm from “an unknown militia group or groups” because the first appellant was associated with the US military forces due to his involvement making deliveries to their bases while working for his brother.

13    In the period between July 2008 and June 2012, the first appellant lived with his immediate family in Damascus, Syria. The fifth appellant was born in Damascus on 1 January 2009.

14    In June 2012, the first to fifth appellants relocated to Malaysia following the outbreak of the Syrian civil war.

15    On 29 September 2012, the first to fifth appellants arrived in Australia as unauthorised maritime arrivals after boarding a boat in Indonesia.

16    On 26 August 2015, the first to fifth appellants lodged a combined application for a TPV.

17    On 16 December 2015, the first and second appellants attended separate interviews with a delegate of the Minister (Delegate) concerning the TPV application.

18    On 15 February 2017, an application was lodged on behalf of the sixth appellant for a TPV.

19    On 15 March 2017, the Delegate refused to grant the TPV. The matter was then referred to the Authority.

20    On 10 April 2017, the appellants’ representative provided a submission to the Authority accompanied by further evidence. The further evidence relevantly included:

(a)    supporting documents as to the death of the first appellant’s brother comprising a death certificate of the first appellant’s brother and a photograph of his tomb;

(b)    a statement from the appellants’ former neighbour regarding the attempted kidnapping of the third appellant that post-dated the Delegate’s decision; and

(c)    media articles regarding terrorist attacks and activity in Iraq which pre-dated the Delegate’s decision,

(together, the Further Documents).

C.    Appeal Grounds

21    The appellants rely on the following grounds in their notice of appeal (as written):

1.    The Federal Circuit and Family Court of Australia (Division 2) (the Court) erred in paragraph [14] of the decision by holding that the Immigration Assessment Authority’s (the Authority) admitted failure to comply with its obligation under s 473DD(b)(ii) of the Migration Act was immaterial in circumstances where the new information was supportive of the appellant's credit generally, and the AUTHORITY’s rejection of the appellant's credit on even just one issue was central to the AUTHORITY’s rejection of the appellant's claims as a whole.

2.    The Court erred in paragraph [17]-[19] of the decision by finding there was no error with the Authority’s finding that there were inconsistencies in the appellants’ claim regarding ‘the hand grenade incident in circumstances where the asserted inconsistencies could not rationally be said to be inconsistencies in the Appellant's evidence.

3.    The Court erred in paragraph [19] of the decision by:

a.    finding that the Authority had not erred in the manner in which the Authority approached the question of the hand grenade incident;

b.    finding that “it could not be said that no other rational or logical decision maker could have made the same decision as the authority”;

c.    not finding that the Authority had failed to provide reasons as to its decision as required by the Act as to its finding that it did not accept the first appellant’s evidence regarding the hand grenade incident.

4.    The Court erred in paragraph 21 of the decision by not finding that the Authority did not properly set out its reasons for its decision, in particular having regard to it acceptance of the first appellant’s account of events other than the hand grenade incident.

22    In the course of his oral submissions at the hearing of the appeal, Mr S. Prince SC, who appeared for the appellants, submitted that, in essence, the appeal grounds devolved into two issues. First, the paucity of reasons of the Authority in dealing with the grenade incident (Grounds 2 to 4). Second, the failure of the Authority to comply with its obligations to admit additional evidence under s 473DD(b)(ii) of the Migration Act 1958 (Cth) (Migration Act) (Ground 1).

23    At the conclusion of the hearing of the appeal, I granted leave to both the appellants and the Minister to file supplementary written submissions directed to Ground 4. Supplementary submissions were subsequently received from both the appellants and the Minister, including a second supplementary submission from each of them addressing the recent decision of the Full Court of this Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 (Markovic, Thomas and Button JJ).

D.    Decision of the Authority

24    The Authority was satisfied that exceptional circumstances warranted consideration of new information in the appellants’ submissions, given it was relevant to issues about which the appellants were not on notice before the Delegate: Decision and Reasons of the Authority (R) at [5].

25    The Authority was not satisfied, however, that there were exceptional circumstances to warrant the consideration of the Further Documents: at R [6]-[7].

26    The Authority considered that the background provided by the first appellant and his wife, the second appellant, was consistent. However, the Authority doubted the credibility of the second appellant given her changing evidence regarding her third child’s place of birth (Iraq or Syria): at R [10].

27    Notwithstanding credibility issues, the Authority considered that the first appellant was generally consistent in his evidence regarding his work with his brother and the attempted kidnapping of the third appellant (the oldest child of the first and second appellants): at R [11].

28    The Authority accepted that from 2006 to 2008, the first appellant worked several days a month on a casual basis with his brother transporting items from Baghdad airport to United States military bases, and that his brother was shot and killed on 16 June 2008: at R [11]. The Authority noted that the first appellant’s role was to assist his brother, he had not otherwise worked in the transport industry, he had no qualifications in that industry and he did not hold any specialist driver’s licence. Accordingly, the Authority found that he would not undertake such work on return to Iraq (at R [12], [22]), and his association with that employment and/or the United States forces was considerably diminished due to the passage of time: at R [21].

29    The Authority accepted the attempted kidnapping as reported: at R [13], and that it may have been related to the first appellant’s casual employment with his brother.

30    Based on inconsistencies between the evidence given by the first and second appellants, the Authority was not satisfied that the grenade incident occurred. The Authority stated at R [14]:

The applicants also claim that an explosive device was thrown at their home or into their garden some days after this event. There has been some variation in the evidence relating to this, including whether the attack occurred at night when everyone was asleep or in the evening when the applicant husband was not at home. The applicant wife stated at her PV interview that there was no damage to the house and the applicant husband stated at his that the windows were broken. The applicant wife stated that they called the police but they did not attend and the applicant husband stated that the police attended of their own accord. Taking into account these inconsistencies I am not satisfied that this event occurred.

31    The Authority was prepared to accept that the first appellant was targeted by a militia group because he undertook work with his brother making deliveries to US military bases in Iraq and that that may have been the reason for the attempted kidnapping of his son, although the Authority noted that country information suggested that militia groups use extortion or kidnapping to raise funds. It noted that the first appellant had not claimed that there were any other attacks on the family home, where various members of his family including his mother still reside, and the Authority found that there were not: at R [15].

32    The Authority accepted that the first appellant’s details would have been available on the Department website at the time of the data breach and may have revealed that he has sought asylum in Australia. However, details of his claims for protection would not have been available, and there was no evidence to suggest that the information was accessed by the Iraqi authorities. The Authority nevertheless accepted that the first appellant may be identifiable on re-entry as a person who sought asylum in Australia: at R [17].

33    The Authority was not satisfied, however, given the first appellant’s evidence and country information, that his former employment gave rise to a well-founded fear of persecution on return to Iraq: at R [21].

34    Although the appellants did not claim a fear of persecution for reason of being Shia Muslims, the Authority was satisfied, by reference to country information the Authority found, that there is not a real chance that the appellants would be harmed on this basis on return to Karbala: at R [23].

35    Again, by reference to country information, the Authority found that although violent crime, including kidnappings and killings, occurs in Karbala there was not a real chance that the appellants would be subject to such harm should they return: at R [24].

36    Although not raised as a claim by the appellants, the Delegate considered whether they would be at risk of harm due to having fled to the West and sought asylum. In relation to this, the Authority noted that the 2015 DFAT country report provides that there was no evidence to suggest voluntary returnees from the West are not assimilated back into their communities. The Authority was not satisfied that the appellants face a real chance of harm on the basis that they have spent time in Australia or that they have unsuccessfully sought asylum in Australia: at R [25].

37    The Authority concluded that the appellants did not face a real chance of harm on the basis that (a) the first appellant worked delivering goods to United States bases from 2006 to 2008, (b) the appellants are Shia Muslims, (c) due to random or generalised violence, or (d) the appellants sought asylum in a Western country. The Authority found that, as “real risk” and “real chance” involve the application of the same standard, it was not satisfied that the appellants would face a real risk of significant harm for the purposes of the complementary protection: at R [30].

E.    Decision of the primary judge

38    In the proceedings below before the primary judge, the appellants relied upon an Amended Application containing four grounds that were identified by the primary judge at J [8]. Relevantly, those grounds raised both the failure to consider new information and the grenade incident, grounds now also raised in this appeal.

E.1.    Failure to consider new information

39    The primary judge noted that the Minister had conceded that the Authority had failed to consider the provision of new information pursuant to its obligations under s 473DD(b)(ii) of the Migration Act: at J [9].

40    The primary judge, however, accepted the Minister’s submission that any failure by the Authority to comply with s 473DD(b)(ii) of the Migration Act did not amount to jurisdictional error because the Authority had otherwise accepted the first appellant’s claims concerning the death of his brother and the attempted abduction of his oldest child. The primary judge rejected a submission by the appellants that acceptance of the new information concerning those matters “ought to have lead [sic]” the Authority into accepting the first appellant’s evidence with respect to the grenade incident. The primary judge concluded that the new information concerning the death of his brother and the attempted abduction of his oldest child could not realistically have led to the Authority making a different decision: at J [10]-[14].

E.2.    Rejection of evidence of the grenade incident

41    The second and third grounds assert error by his Honour in rejecting claims (at J [15]-[20]) that the Authority committed a jurisdictional error in rejecting the first appellant’s claim that a grenade was thrown at his house a few days after the attempted kidnapping. The primary judge found that it was open to the Authority to reject the claim about the grenade incident based on the inconsistencies it notes at [14], which his Honour concluded were not minor or trivial. The primary judge found that these grounds essentially sought merits review and did not meet the high bar required by legal unreasonableness.

F.    Ground 1

42    It is alleged in Ground 1 that the Authority’s admitted failure to consider the Further Documents, pursuant to its obligation to do so under s 473DD(b)(ii) of the Act, constituted a jurisdictional error.

F.1.    Legal principles

43    Section 473DD of the Migration Act provides:

473DD    Considering new information in exceptional circumstances

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

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

44    The reference to the credible personal information being information that “may have affected the consideration of the referred applicant’s claims” in s 473DD(b)(ii), raises for determination the materiality of that information to the decision to be made by the Authority.

45    In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [47], Kiefel CJ and Gageler J stated that the determination of materiality involved:

a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation.

46    Subsequently, in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38], Kiefel CJ, Gageler, Keane and Gleeson JJ stated that whether the decision in fact made could have been different if the statutory condition had been complied with, “falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”. Their Honours then continued at [39]:

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(Emphasis in original, footnote omitted.)

F.2.    Submissions

F.2.1.    Appellants

47    The appellants accept that the new information would not have resulted in the Authority coming to a different conclusion on issues it had already decided in their favour. They submit, however, that it may have led the Authority to come to a different view of the first appellant’s credit or credibility which was crucial to the rejection of the first appellant’s evidence concerning the grenade incident.

48    The appellants submit that there is no apparent basis on which to suggest that the materiality of the new information should only be considered relevant to the issues to which it directly related. They submit that the broad or overall credibility of the first appellant was clearly in issue before the Authority. The new information was directly material to that issue because it provided a means by which the first appellant’s account could be “tested” by objective or third party material supporting the first appellant’s account of historical events.

F.2.2.    Minister

49    The Minister submits that it is not realistic to suppose that the Authority might have accepted the first appellant’s account of the grenade incident and ultimately found in favour of the appellants if “it had accepted new information about incidents which it anyway accepted occurred”.

50    Further, the Minister submits that speculation about the impact of acceptance of the information in the Further Documents might have had on the credit of the first appellant, is not relevant. The Minister submits that the decision not to accept the evidence of the grenade incident was based on inconsistencies in accounts of the incident, not credit issues and that the Authority had made no express credit findings against the first appellant and had generally accepted his evidence.

F.3.    Consideration

51    I do not accept that there is a realistic possibility that the Authority could have come to a different decision if it had not failed to comply with its statutory task in s 473DD(b)(ii) of the Migration Act to consider the Further Documents, for the following reasons.

52    First, the Authority accepted that the first appellant’s brother had been killed while transporting goods to United States military bases in Iraq and that there had been an attempted kidnapping of the first and second appellants’ oldest child outside the family home. The information in the Further Documents did no more than corroborate those findings that the Authority had independently made.

53    Second, the Further Documents did not otherwise contain any information that corroborated evidence given by the first appellant that had been rejected by the Authority. Other than with respect to his account of the grenade incident, the Authority had generally accepted the evidence of the first appellant. The Further Documents, relevantly, did not contain any account of the grenade incident or information from which any assessment could be made of whether it had in fact taken place.

54    Third, the Authority had not rejected the first appellant’s evidence concerning the grenade incident on credit grounds but rather, because of inconsistencies that it considered were material between the first and second appellants’ account of the incident. While I accept that the rejection of evidence given by a party might carry with it, at least an implied credit finding, in this case, it appears that the first appellant was not actually at home when the grenade incident is alleged to have taken place. Any implied adverse credit finding would thus be relatively slight. The Authority was not rejecting evidence of what the first appellant may have personally observed, except to the extent that any subsequent damage to the home might have been seen by the first appellant.

G.    Grounds 2 and 3

55    It is convenient to address Grounds 2 and 3 together. These grounds are directed at the Authority’s finding that the grenade incident did not take place.

G.1.    Legal principles

56    The principles governing jurisdictional error on the ground of unreasonableness or illogical or irrational reasoning are well settled.

57    First, legal reasonableness is an essential element of lawfulness in decision‐making: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J).

58    Second, it is essential to bear in mind in considering whether a decision is vitiated by legal unreasonableness, that the Court’s jurisdiction is strictly supervisory and does not extend to any review of the merits of the decision: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [58] (Allsop CJ, Griffiths and Wigney JJ).

59    Third, an appellant seeking to establish unreasonableness, illogical or irrational reasoning must demonstrate that the decision is “one at which no rational or logical decision maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] (Crennan and Bell JJ).

60    Fourth, unreasonableness is concerned with both outcome and process: Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [31] (Gordon J).

61    Fifth, if logical or rational or reasonable minds might adopt different reasoning or reach different conclusions on probative evidence, a reviewing court cannot conclude that the decision was illogical or irrational “simply because one conclusion has been preferred to another possible conclusion”: SZMDS at [130]-[131]; see also SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58 at [84] (McKerracher J, Reeves J agreeing).

62    As explained by Crennan and Bell JJ in SZMDS at [135]:

A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

63    Sixth, an evaluation of whether an administrative decision is legally unreasonable and, therefore, outside the range of possible lawful outcomes, must be made having regard to the terms, scope and policy of the statutory source of the power: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 at [48] (Perry J), citing Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, Griffith and Wigney JJ agreeing at [87] and [90], respectively).

G.2.    Submissions

G.2.1.    Appellants

64    The appellants submit that the Authority’s finding that it was not satisfied that the grenade incident took place was irrational and illogical.

65    The appellants submit that the inconsistency relied upon by the Authority in not accepting that the grenade incident took place is an inconsistency between the accounts of the first and second appellants and not within the accounts of any of the appellants. They submit that this is of great significance in any assessment of the alleged inconsistencies.

66    The appellants advance the following submissions with respect to the significance of the alleged inconsistencies (as written):

20.    The inconsistencies identified by the Authority are:

a.    “There has been some variation in the evidence relating to this, including whether the attack occurred at night when everyone was asleep or in the evening when the applicant husband [i.e. the first appellant] was not at home.” In this respect:

i.    firstly, the Authority has not directly identified the evidence upon which it relies, and it appears that this a summary rather than a verbatim quote;

ii.    secondly, it is not apparent that one person referring to an event as occurring “in the evening” and another as “at night” is an inconsistency given the overlap between these two concepts; and

iii.    thirdly there is no inconsistency between the account of “everyone being asleep” and the first appellant not being at home. Rather, the first account could simply mean that everyone who was at home was asleep (indeed this would be the natural reading of that account) which is entirely consistent with the first appellant being away.

b.    “The applicant wife [i.e. the second appellant] stated at her PV interview that there was no damage to the house and the applicant husband stated at his that the windows were broken. The applicant wife stated that they called the police but they did not attend and the applicant husband stated that the police attended of their own accord”. These statements might be regarded as being inconsistent, however:

i.    given the terror of being subject to a grenade attack, it is unsurprising that there might be different accounts;

ii.    a difference in accounts might simply be based on the different knowledge of different individuals as to what happened. For example. it may be that the second appellant was not present when the police attended. This is particularly so where the Authority Decision (at [11]) noted the cultural issue of men not discussing matters with their wives.

(Footnote omitted.)

67    The appellants submit that it was irrational and illogical for the Authority not to have accepted the evidence of the first appellant concerning the grenade incident given (a) the Authority had accepted the first appellant’s evidence on two key issues, the death of his brother and the attempted kidnapping, and (b) that where there were inconsistencies between the evidence of the first appellant and the second appellant, the Authority preferred the evidence of the first appellant.

G.2.2.    Minister

68    The Minister submits that (a) the inconsistencies identified by the Authority in the accounts given by the first and second appellants were not trivial and it was open for the Authority to have rejected the claim that the grenade incident took place, (b) the Authority was not bound to accept that the grenade incident occurred because it had otherwise accepted the evidence of the first appellant, and (c) as the primary judge found, reasonable minds might differ as to whether the grenade incident took place and, therefore, the reasoning was not legally unreasonable.

69    Moreover, the Minister submits that still less could the “ultimate decision” made by the Authority be said to be legally unreasonable, as required by MZAPC at [33].

G.3.    Consideration

70    I am not satisfied that the Authority fell into jurisdictional error in failing to accept that the grenade incident occurred.

71    The weight to be given to the inconsistencies that the Authority relied upon at R [14] to find that the grenade incident took place was inherently a matter for the Authority. The inconsistencies concerned the time when the attack occurred (at night when everyone was asleep or in the evening when the first appellant was not at home), the extent of damage (no damage to the house or the windows being broken) and attendance by the police (they were called but did not attend or they attended of their own accord).

72    The inconsistencies were not of a character that no reasonable decision maker could have considered them to be material. The position might have been very different if, by way of example, the inconsistencies only related to the specific number of windows that were broken, the number of police that attended or whether the attack occurred at 6.00 pm or 6.30 pm.

73    Given the inconsistencies in the accounts of the grenade incident given by the first and second appellants, the decision by the Authority not to accept that the incident took place was not a decision that no rational or logical decision maker could have made on the same evidence. I am satisfied that it was a state of satisfaction that could have been formed by a reasonable person.

74    It was not irrational or illogical for the Authority to not accept the first appellant’s evidence of the grenade incident when it had otherwise accepted his evidence on two other “key incidents” and where it had preferred the first appellant’s evidence on the nature of his employment when it conflicted with the evidence of the second appellant. It does not logically follow that if a decision maker accepts the evidence of a person on some significant events that it would be illogical or irrational for it not to accept the person’s evidence on all significant events. A decision maker must consider all the evidence relevant to each disputed event before making any finding as to whether it was satisfied that the event took place. It is hardly exceptional that a decision maker might not accept that an event took place in circumstances where witnesses give conflicting accounts of what happened.

75    Nor does it follow that inconsistencies between accounts given by two people of an event are necessarily less significant than internal inconsistencies in an account given by a person. The significance of inconsistencies in accounts of an event must always ultimately depend on the decision maker’s assessment of the materiality of those differences.

76    It could not be said that the Authority, in reaching its decision to affirm the decision of the Delegate, “ignored, overlooked or misunderstood relevant facts or materials” in not accepting that the grenade incident took place or “misunderstood the case” being advanced by the appellants: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon, Steward JJ).

H.    Ground 4

77    It is alleged in Ground 4 that the Authority failed to give proper or sufficient reasons for why it did not accept the first appellant’s account of the grenade incident, giving rise to jurisdictional error.

H.1.    Legal principles

78    There is no free standing common law duty in Australia imposed on a decision maker to give reasons in making a statutory decision: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43] (French CJ, Crennan, Bell, Gageler and Keane JJ) citing Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7. The standard required of a written statement of reasons is therefore to be determined as an exercise in statutory construction: Wingfoot at [44].

79    Their Honours stated in Wingfoot at [45]:

General observations, drawn from cases decided in other statutory contexts and from academic writing, about functions served by the provision of reasons for making administrative decisions are here of limited utility. To observe, for example, that the provision of reasons imposes intellectual discipline, engenders public confidence and contributes to a culture of justification, is to say little about the standard of reasons required of a particular decision-maker in a particular statutory context. The standard of reasons required even of courts making judicial decisions can vary markedly with the context.

80    Section 473EA(1)(b) of the Migration Act (read with s 25D of the Acts Interpretation Act 1901 (Cth)), requires the Authority to set out the reasons for its decision. It contains “materially identical” requirements to s 430 of the Migration Act: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

81    Section 430 of the Migration Act provides:

430    Tribunal’s decision and written statement

Written statement of decision

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)    sets out the decision of the Tribunal on the review; and

(b)    sets out the reasons for the decision; and

(c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

(f)    records the day and time the statement is made.

Note:     Decisions on a review under paragraph 426(1A)(a) or (1C)(b), or under subsection 426(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)    by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

Note: For oral decisions, see section 430D.

(2A)    The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

(3)    After the Tribunal makes the written statement, the Tribunal must:

(a)    return to the Secretary, any document that the Secretary has provided in relation to the review; and

(b)    give the Secretary, a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

(4)    The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

(a)    a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

(b)    a failure to comply with subsection (3).

82    The appropriate construction of s 430 of the Migration Act was considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 13 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). In Yusuf at [69], the plurality said:

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

(Footnotes omitted.)

83    The Full Court in LPDT stated at [62] that:

unexplained findings in a decision-maker’s reasons will not usually avoid a finding of error where, on review, it is possible to posit a logical and legally available means by which the finding could have been reached.

84    Their Honours then stated at [63] that it was accordingly necessary to look to the reasons of the Tribunal to discern its course of reasoning. Their Honours then concluded at [64]:

The Tribunal’s reasons do not expose any chain of reasoning at all, let alone a comprehensible one, between the features of the Appellant’s evidence referred to and the conclusion that sub-paragraph (a) “militates strongly in favour of a finding that the [Appellant’s] criminal offending has been of a very serious nature”. As such, the Tribunal’s reasons involved error. It was not incumbent on the Appellant to establish just how the Tribunal came to state the conclusion that it stated, and that that unstated method of reasoning involved error. Rather, the error lies in the very lack of any articulated comprehensible connection between the conclusion and the articulated basis for it.

H.2.    Submissions

H.2.1.    Appellants

85    First, the appellants submit that the Authority fell into jurisdictional error by failing to give proper or sufficient reasons for why it did not accept the first appellant’s account of the grenade incident. The appellants submit that the resolution of conflicting testimony give rise to four options. They submit that the relevant decision maker can accept version A, accept version B, accept version A and version B to the extent that they are consistent or reject both versions A and B.

86    In this case, the appellants submit the Authority has provided no evaluation or explanation of why it chose the fourth option of simply rejecting the evidence of both the first and second appellants in circumstances in which (a) it had otherwise found the first appellant’s evidence to be credible, (b) it had preferred the evidence of the first appellant over the second appellant on other matters, (c) the inconsistencies between the evidence of the first and second appellants were relatively trivial, and (d) both the first and second appellants gave evidence that the grenade incident had in fact occurred.

87    The appellants submit that the explanation by the Authority of why it did not accept that the grenade incident took place was inadequate. They submit that the explanation did not ensure, contrary to the statement by the High Court in Yusuf at [69], that a person dissatisfied with the result could identify with certainty the reasons that the Authority had reached its conclusion and what facts it considered material to that conclusion. The appellants submit that “incantation of the existence of some ‘inconsistencies’ just does not set out reasons supporting the material finding” that the grenade incident did not occur.

88    The appellants also submit that these errors by the Authority exacerbated, or were exacerbated by, the failure of the Authority to consider the Further Documents. They submit that the Further Documents would have added considerable weight to the credibility of the first appellant and the veracity of his evidence, including with respect to the grenade incident.

H.2.2.    Minister

89    The Minister submits that, in any event, the Authority has exposed its reasoning process by finding that the contradictions in the accounts given by the first and second appellants of the grenade incident caused it to conclude that the incident did not occur. The Minister submits that the Authority did not need to give any further reasons. In contrast to the conclusion of the Administrative Appeals Tribunal, considered by the Full Court of this Court in LPDT, the Authority had not failed to “expose any chain of reasoning at all, let alone a comprehensible one”: LPDT at [64].

H.3.    Consideration

90    I do not accept that the Authority has failed to provide proper or sufficient reasons for its decision not to accept that the grenade incident occurred. More specifically, I do not agree that the Authority has failed to explain its path of reasoning by which it made that decision or that it has failed to provide a comprehensible connection between a conclusion and the articulated basis for it.

91    The relevant conclusion made by the Authority was that it was not satisfied that the grenade incident occurred. The “articulated basis” for that conclusion were the accounts given by the first appellant and the second appellant of the grenade incident: at R [9], [13]. The “comprehensible connection” between the conclusion and the articulated basis was the inconsistencies in those accounts: at R [11], [13]. The reasoning was concise and might well be thought to be economical but in my view, it was sufficient to disclose the path of reasoning that led the Authority to not accept that the grenade incident took place.

92    The conclusion reached by the Authority was not an unexplained finding in the reasons of a decision-maker. The method of reasoning was expressly stated, namely “taking into account these inconsistencies I am not satisfied that this event occurred”. The inconsistencies were expressly identified. In my view, any alleged error by the Authority in failing to explain why it had discounted or rejected alternative conclusions, either strays into merits review or falls foul of what has been described as the requirement not to construe reasons minutely with an eye keenly attuned for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

93    The explanation for the conclusion reached by the Authority did not depend on any assumption of analogical reasoning or a failure by an applicant to discharge an onus: see LPDT at [66].

94    Nor was this a case where the reasoning for the Authority’s conclusion relied on the positing of a logical and legally available means by which an unexplained finding might be reached: see Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [128] (Farrell, Moshinsky and Burley JJ).

95    The acceptance of other evidence given by the first appellant when it conflicted with that given by the second appellant, the absence of any adverse credit findings against the first appellant and the fact that both the first and second appellant gave evidence that the grenade incident occurred might have led other decision makers to reach a different conclusion. That, however, is a different issue to whether the Authority provided proper or sufficient reasons for its conclusion on the grenade incident.

I.    Disposition

96    The notice of appeal is to be dismissed and the appellants are to pay the costs of the Minister, as taxed or agreed.

Associate:

Dated:    22 August 2023

SCHEDULE OF PARTIES