Federal Court of Australia

DKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1372

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

THOMAS J:

INTRODUCTION

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to refuse to grant the appellants Class XA subclass 866 Protection visas (visas).

2    The appellants applied to the Tribunal on 6 July 2017 for review of the delegate’s decision. On 20 March 2020, the appellants appeared before the Tribunal to give evidence and make submissions with the assistance of an Arabic interpreter. On 1 July 2020, the Tribunal affirmed the delegate’s decision not to grant the visas as it was not satisfied that the appellants satisfied the criteria for protection in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

3    On 21 July 2020, the appellants filed an application with the FCCA for judicial review of the Tribunal’s decision. On 29 March 2021, the appellants filed an amended application with the FCCA. The Minister did not oppose the grant of leave to the appellants to rely on the amended application. On 28 April 2021, the primary judge dismissed the amended application (DKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 839).

4    The second appellant, DKU20, is the wife of the first appellant, DKT20. The third to sixth appellants are the minor children of the first and second appellants. The protection claims of the second to sixth appellants rely wholly on DKT20’s claims as they raised no independent claims for protection. The appointment of DKT20 as litigation guardian for the third to sixth appellants in the FCCA proceedings subsists and continues as an appointment as their litigation representative in this appeal (BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 115; [2023] FCAFC 1 per Allsop CJ, Burley and O’Callaghan JJ).

BACKGROUND

5    The appellants are citizens of Iraq. DKT20 first arrived in Australia in July 2013 on a scholarship from the Iraqi government to complete a PhD course in Australia. He travelled to Iraq four times between December 2013 and July 2015. When entering Australia in July 2015, DKT20 was accompanied by the second to sixth appellants, who had obtained visas as DKT20’s dependents.

6    DKT20’s claims before the Tribunal were recorded by the primary judge at [7]. DKT20 claimed to fear harm in Iraq due to a past secondment from his role as university lecturer to a role with the Iraqi Electoral Commission, where he was responsible for recruiting electoral staff. He claimed that, while with the electoral commission, he was threatened by representatives from the different political parties, including the Islamic Supreme Council of Iraq (ISCI), after refusing their requests to assign people nominated by their party to run ballot centres during the 2010 general election. DKT20 claimed that after escalating his concerns to his manager and the police to no avail, he made a complaint to the Commission of Integrity regarding the conduct of the ISCI representative (corruption complaint). He claimed that when ISCI did not fare well in the 2010 election, the ISCI representative accused DKT20 of favouring the opposition party. DKT20 claimed to fear being arrested or killed if he were to return to Iraq because of his corruption complaint and role in the electoral commission, in circumstances where the head of the ISCI had since become the leader of the State-sanctioned paramilitary force, the Popular Mobilization Units (PMU).

THE TRIBUNAL’S DECISION

7    The grounds of review in the FCCA and in this Court concern the Tribunal’s assessment of DKT20’s claims for protection. In relation to the refugee criteria in s 36(2)(a) of the Act, the Tribunal was not satisfied that DKT20 faced a real chance of harm on return to Iraq, nor that his fear of harm was well-founded. The Tribunal recorded its reasons for this conclusion at [114]-[116] as follows:

114.    Following careful consideration, the Tribunal is not satisfied that if [DKT20] returns to Iraq now or in the reasonably foreseeable future, there is a real chance that he would face serious harm on account of having made a complaint to the Integrity Commission and his role in the Electoral Commission. At its highest, the chance of persecution of [DKT20] is remote. The Tribunal so finds for the following reasons:

•    [DKT20] claimed to have been taunted three or four times, over a period of three years, and only at the election office. There was never any physical violence. No threats at his home or to his family. The last such threat was in 2013.

•    He then claims he went into hiding, only visiting his family at night or at relatives’ houses. Yet he maintained his employment at the university attending sometimes twice a week.

•    Despite living in fear whereby he was driven to hide, and to live remotely from his family, he voluntarily decided to try and help his successor at the electoral commission.

•    He claims to have made formal complaints to the police and to the Integrity Commission, yet has no evidence of the same.

•    [DKT20] claims he fears that he will be arrested or killed if he were to return to Iraq because of his complaint to the Integrity Commission and his role in the Electoral Commission. Yet he returned voluntarily to Iraq four times claiming to be seeking the inclusion of his family in his financial support package to his scholarship. He claimed to have returned only for short periods and hid whilst he was there, but on one occasion he remained in Iraq for two months.

•    [DKT20] claims he will be arrested because of the complaint he made to the Integrity Commission, because of evidence provided by his successor to the Integrity Commission and because the Islamic Supreme Council has the upper hand in Iraq at present, yet he applied for, and received, a government scholarship to study in Australia and returned several times to Iraq to process further claims for support in relation to that scholarship.

•    [DKT20] claims [his successor at the electoral commission] vanished after he gave evidence to the Integrity Commission, and that this is of concern to him, yet his evidence is speculative – he produced no evidence in support of his contention.

•    The events took place over 7 to 10 years ago – no evidence was advanced that [the ISCI representative] or anyone associated with him still has an interest in [DKT20].

•    Notwithstanding his grave concerns, he did not make an application for protection for some ten months after arriving in Australia with his family, and some three years after first arriving in Australia.

•    [DKT20] maintains that the Iraqi government issued a fine against [DKT20] for the amount of $406,154 US dollars, yet produced no evidence of such fine.

•    He claimed to fear his family being harmed, but they continued to live in Iraq in the house of his father whilst he allegedly hid and after he departed Iraq – they would not have been hard to find – and they came to no harm.

•    Country information provided by the Representative tends to support militias attacking elections randomly, entitling a view to be drawn that fears of the militia are fears shared by the population generally.

115.    The Tribunal reiterates that it is satisfied that [DKT20] does not face a real risk of persecution if he returns to Iraq now, or in the reasonably foreseeable future, from [the ISCI representative], any political party, militia or the Government.

116.    Having determined that [DKT20’s] fear of persecution is not well-founded, it is unnecessary to further consider whether the harm was directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

8    These findings were also the basis for the Tribunal finding no real risk of significant harm to DKT20 on return to Iraq for the purposes of the complementary protection provisions in s 36(2)(aa) of the Act (at [126]-[131]).

9    The Tribunal concluded that, having considered the evidence and submissions, DKT20’s personal circumstances, and all claims individually and cumulatively, it was not satisfied that the appellants met the criteria in ss 36(2)(a) and 36(2)(aa) of the Act, and so was not satisfied that they were persons in respect of whom Australia has protection obligations (at [134]-[137]).

DECISION OF THE PRIMARY JUDGE

10    The amended application before the primary judge contained three grounds, numbered 1(d), 3(a) and 3(b) respectively. Ground 1(d) was that, while the Tribunal accepted that DKT20 had opposed corruption in the past, it had failed to consider the risk he may face were he to engage in anti-corruption activity in the future. The appellants also contended that the Tribunal failed to consider whether DKT20 had an enduring imputed political opinion, or was a member of a particular social group comprising people with an attitude of resistance to systematic corruption. In relation to that ground, the primary judge found that DKT20 had not raised a claim before the Tribunal that he would engage in such activity in the future; and that, as the Tribunal was not satisfied of a well-founded fear of harm arising from such conduct in the past, it was not required to consider the consequences of future engagement in such conduct (at [13]-[14]). Further, having found that DKT20’s fear of harm was not well-founded, the Tribunal was not required to consider whether harm might be directed to him for any of the reasons in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), namely race, religion, nationality, membership of a particular social group or because of his political opinion.

11    The complaint in Ground 3(a) was that it was legally unreasonable for the Tribunal to base its decision on a lack of corroborative evidence, despite documents demonstrating DKT20’s work at the electoral commission and DKT20’s explanations regarding the secretive nature of the Commission of Integrity. By Ground 3(b), the appellants contended that it was legally unreasonable for the Tribunal to dismiss DKT20’s claims due to lack of corroborating documentary evidence when written evidence is not a legal requirement for the grant of a protection visa. The primary judge dealt with Grounds 3(a) and 3(b) together. The primary judge considered that the Tribunal was entitled to take into account the lack of corroborative evidence (at [15]), where it was for the appellants to make out their claims to the Tribunal’s satisfaction (at [13]). In relation to the reasons provided at [114] of the Tribunal’s decision, the primary judge found that “[i]t cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal (at [17]); and “[n]either could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident or intelligible justification” (at [18]).

12    Accordingly, the primary judge dismissed the amended application.

GROUNDS OF APPEAL

13    The grounds contained in the Notice of Appeal are in the form of submissions as follows:

The primary judge erred in dismissing my application for judicial review and affirming the Tribunal’s decision, because the Tribunal, having ‘accepted that I was motivated to oppose corruption in Iraq in the years before which I left Iraq in July 2013’, did not address the risk that I will face if I to engage in similar conduct on my return to Iraq, and thereby, that there was a real chance of him suffering persecution as a result. In circumstances that I stated that:

(a)    I opposed conduct by political parties which sought to undermine the process of an open and fair election to public office (“the Islamic Supreme Council Conduct”);

(b)    I opposed conduct by public officials (my manager) which had the consequence of covering up the Islamic Supreme Council Conduct; and

(c)    I was willing to take steps to expose the Islamic Supreme Council Conduct and the cover up by my manager by lodging a complaint with the Commission of Integrity; and

(d)    I was willing to take steps to oppose the Islamic Supreme Council Conduct by warning my successor about the conduct.”

The primary judge erred in agreeing with the [Tribunal] that paragraphs [35] –[113] found that there is no real chance that that I will be harmed in Iraq, just because there was no physical harm that I was subjected to in the past, especially in circumstances where I provided information that the Islamic Supreme Council is now controlling Iraq through its leader Hadi Al Ameri who is the head of the PMU, and that AL Ameri was appointed in 2016 to be a head of the PMU, in a country where Corruption is so prevalent and where my previous anti-corruption conduct will be realised more with the emergence of the PMU as a group, accordingly, the Primary judge erred in agreeing with the [Tribunal] in its conclusion about the lack of the physical past threats in circumstances where corruption is now more powerful with the emergence of the PMU, because the person who targeted me in the past belongs to a leader or group who are the leaders of the PMU which was not existent at the time of my departure from Iraq.

The primary judge erred in limiting the “political opinions” claim by the lack of the previous threats.

(errors in original)

THE APPELLANTS’ SUBMISSIONS

14    The appellants did not file written submissions. At the hearing, I drew the appellants’ attention to the Notice of Appeal and the Minister’s written submissions and asked the appellants to confirm the grounds of appeal. DKT20 confirmed that the two grounds of review are to the following effect:

(a)    the primary judge erred in rejecting Ground 1(d) below in failing to find that the Tribunal failed to consider the risk to DKT20 of engaging in anti-corruption activity in future; and

(b)    the primary judge erred in rejecting Grounds 3(a) and 3(b) below in failing to find that the Tribunal’s decision, that there was no real chance of harm to DKT20 in Iraq, was illogical, irrational or legally unreasonable.

15    On the basis of the discussion at the hearing, I am satisfied that the contention in the Notice of Appeal that “[t]he primary judge erred in limiting the ‘political opinions’ claim by the lack of the previous threats” related to the contended failure of the Tribunal to consider future anti-corruption activity, which formed the basis of Ground 1.

16    The appellants’ oral submissions largely cavilled with the findings of the Tribunal at [114]. As I understood those submissions, the appellants contended that errors in [114] meant that:

(a)    in relation to Ground 1, the Tribunal’s assessment of possible risk of harm arising from future conduct was infected by the Tribunal’s erroneous findings in relation to the risk of harm arising from past events; and

(b)    in relation to Ground 2, the decision of the Tribunal was rendered illogical, irrational or legally unreasonable.

17    I understood the appellants’ oral submissions regarding the Tribunal’s findings at [114] to be as follows:

(a)    in relation to DKT20 being taunted three or four times over a period of three years, the appellants submitted that the ISCI representative was not violent against DKT20 only because the threats were made in a public area of the electoral office. Further, unknown people have maintained surveillance on the family’s house and DKT20’s former workplace in Iraq;

(b)    in relation to living in fear and being driven to hide and live remotely from his family, the appellants submitted that DKT20 did not volunteer to assist his successor, but rather was required to do so as part of his job;

(c)    in relation to the formal complaints to the police and to the Commission of Integrity, the appellants submitted that it was unreasonable for the Tribunal to find that there was no corroborative evidence, given that there were documents before the Tribunal proving DKT20’s work at the electoral commission during the 2010 election. The appellants further submitted that, although the complaint to the Commission of Integrity was a formal one, there was no documentary evidence because the complaint was made verbally;

(d)    in relation to DKT20’s claims he fears he will be arrested or killed if he were to return to Iraq, the appellants submitted that the Tribunal should not have found DKT20’s four visits to Iraq to be “voluntary”, in circumstances where he had no option but to attend Iraqi government offices in person to obtain documents needed for his family’s Australian visa application. Accordingly, it was erroneous for the Tribunal to find that travel inconsistent with his claims to fear harm;

(e)    in relation to DKT20’s claims that he would be arrested because of his complaint to the Commission of Integrity and yet he applied for, and received, a government scholarship, the appellants submitted that the reasoning is illogical because ISCI was not in government and had no relation to the government agencies administering DKT20’s scholarship;

(f)    in relation to DKT20’s grave concerns, yet he did not make an application for protection for some 10 months after arriving in Australia with his family, the appellants submitted that, although the protection visa application was lodged 10 months after the family’s arrival, they commenced preparing that application, including contacting a lawyer to assist them, much earlier than that. The appellants also claimed that, after the family arrived in Australia, DKT20 and his wife were under pressure which led to treatment by a specialist;

(g)    in relation to DKT20’s claim that the Iraqi government issued a fine against him for $US406,154, the appellants claimed to have documentary evidence of the fine, as well as a letter from DKT20’s mother offering to use her house as guarantee for the fine. The appellants contended that if they did not have a genuine fear of harm, they would simply return to Iraq and thereby avoid the fine. As I understood that submission, the “fine” is a demand for repayment of DKT20’s scholarship, as he has not returned to Iraq to utilise the knowledge gained from postgraduate study; and

(h)    in relation to Country information tending to support militias attacking elections randomly, the appellants submitted that, although there are random attacks on polling sites, there are also targeted threats made against electoral staff and that the Tribunal failed to properly research this issue.

THE MINISTER’S SUBMISSIONS

Ground 1

18    In response to Ground 1, the Minister submitted that the Tribunal was only required to consider claims that were clearly articulated, or which clearly emerged from the materials and established facts before it in the sense found in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 (Dranichnikov). The Minister submitted that a claim not considered by the Tribunal that might be said to emerge from materials is insufficient to demonstrate jurisdictional error (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18] per Collier, McKerracher and Banks-Smith JJ). The Minister contended that the appellants’ case before the Tribunal was never that DKT20 would resume anti-corruption activity on return to Iraq, nor that he belonged to a particular social group. Rather, his claim was based on an adverse profile derived from past activity in a particular context. The Minister submitted that this was reflected in the particulars to this ground, which only referred to DKT20’s past conduct while working at the electoral commission, and submitted that it did not follow inexorably from those past experiences that DKT20 would engage in the same conduct in the same context in future. The Minister submitted that this distinguishes this case from matters such as Dranichnikov and contended that it could not have been an error for the Tribunal not to consider a matter that was neither put to it nor clearly emergent from the material before it. The Minister further contended that, in any event, the Tribunal’s consideration of any such claim was subsumed into its findings of greater generality in relation to the risk of harm arising from such conduct (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]-[47] per French (as his Honour then was), Sackville and Hely JJ).

Ground 2

19    The Minister addressed Ground 2 as a contention that the formation of the Tribunal’s state of satisfaction was irrational or illogical in the sense found in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS). The Minister submitted that it was a precondition to the exercise of the Tribunal’s power under s 65 of the Act that the Tribunal be satisfied that the visa criteria were met. The Minister contended that, since a state of satisfaction is a subjective fact, it will be taken to be unlawful only “[i]f, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds … In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside” (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [21] per Allsop CJ, Besanko and O’Callaghan JJ). The Minister submitted that, in this case, there were logical and rational foundations for the Tribunal’s state of satisfaction, apparent in [114] of the Tribunal’s reasons. The Minister submitted that the Tribunal engaged rationally with all of the claims and material before it, and reached its conclusion logically. The Minister pointed to authority confirming that the primary judge was correct to find that it was open to the Tribunal to take into account both a lack of corroborative evidence (Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7 at [51] per Griffiths J), and the delay in making an application for protection (DJL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 451 at [76] per Anastassiou J). The Minister submitted that the appellants’ challenges to the Tribunal decision do not meet the high bar of legal unreasonableness (Onyebuchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1183 at [84] per Anderson J).

20    The Minister otherwise submitted that Ground 2 sought impermissible merits review.

Oral submissions

21    In response to the matters raised by the appellants during oral submissions, counsel for the Minister submitted the following:

(a)    the appellants would require the leave of this Court to raise any new ground not argued before the FCCA, taking into consideration the factors discussed in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 per Kiefel (as her Honour then was), Weinberg and Stone JJ; and

(b)    the matters raised by the appellants’ oral submissions in relation to [114] invited impermissible merits review.

CONSIDERATION

Ground 1

22    The first ground of appeal takes issue with the rejection of Ground 1(d) in the Court below. The issue concerned whether the Tribunal failed to consider an integer of DKT20’s claims based upon his opposition to corruption in Iraq if he were to engage in similar conduct on his return to Iraq. DKT20 referred to the purported acceptance, by the Tribunal, that he was “motivated to oppose corruption in Iraq in the years before which he left Iraq in July 2013”.

23    DKT20 referred to circumstances where he had stated that:

(a)    he opposed conduct by political parties which sought to undermine the process of an open and fair election to public office (“the Islamic Supreme Council Conduct”);

(b)    he opposed conduct by public officials (that is, his manager) which had the consequence of covering up the Islamic Supreme Council Conduct;

(c)    he was willing to take steps to expose the Islamic Supreme Council Conduct in the cover up by his manager by lodging a complaint with the Commission of Integrity; and

(d)    he was willing to take steps to oppose the Islamic Supreme Council Conduct by warning his successor about the conduct.

24    As to the consideration of claims (and their integers), Collier, McKerracher and Banks-Smith JJ in AYY17 ruled (at [18]):

•    The Tribunal is only required to consider such claims [and their essential integers] where [the claims] are either:

(a)    the subject of a substantial clearly articulated argument, relying on established facts; or

(b)    clearly emerge from the materials [based on established fact] …

…

•    As to whether a claim clearly emerges …:

(a)    such a finding is not to be made lightly;

(b)    the fact that a claim might be said to arise from materials is not enough;

…

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way in which an applicant’s claims are presented over time.

(citations omitted; bold in original)

25    Ground 1 of the appeal to this Court is in similar terms to Ground 1(d) of the amended application for review in the FCCA, where the appellants made submissions which referenced the purported acceptance by the Tribunal and also the four circumstances. Those submissions are outlined in [9] of the primary decision.

26    The claim was not clearly articulated by DKT20. The contention advanced by DKT20 must be that the claim that DKT20 would engage in similar conduct on his return to Iraq clearly arose on the material before the Tribunal.

27    The specific references are made to the Tribunal’s purported acceptance that DKT20 was motivated to oppose corruption in Iraq in the years before he left Iraq and that he opposed conduct by political parties which sought to undermine the process of an open and fair election to public office, he opposed conduct by public officials which had the consequence of covering up the Islamic Supreme Council Conduct, he was willing to take steps to expose the Islamic Supreme Council Conduct and the cover-up by his manager by lodging a complaint with the Commission of Integrity and is willing to take steps to oppose the Islamic Supreme Council Conduct by warning his successor about the conduct.

28    These matters were first raised in this context before the FCCA.

29    The matters raised by DKT20 with respect to this ground of appeal referred to past conduct and actions of DKT20. The purported finding referred to is that DKT20 “was motivated to oppose corruption in Iraq in the years before which he left Iraq in July 2013”. The factors (a)-(d) all related to past activities. The claim at that time was that these factors gave rise to a reasonable apprehension of fear of persecution. There was no claim as to what his future conduct might be.

30    The fact that a person does something in the past, in circumstances faced in the past, does not necessarily mean that person would repeat the actions in the future.

31    There was no express claim by DKT20 that he intended to continue the activities outlined into the future. The appellants were represented before the Tribunal. The claims were made that DKT20 feared that he would be arrested or killed if he were to return to Iraq because of his complaint to the Commission of Integrity and that he feared persecution in Iraq because he disclosed corruption.

32    As was said in AYY17, a finding that a claim clearly emerges is not to be lightly made. The fact that a claim “might” be said to arise from materials is not enough so as to mandate consideration by a decisionmaker.

33    There is no general obligation for the Tribunal to investigate claims – it has a duty to review, not to enquire (Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 per French CJ, Gummow, Hayne, Crennan, Kiefel (as her Honour then was) and Bell JJ).

34    The primary judge concluded that it was for DKT20 to advance his protection claims, and not for the Tribunal to speculate as to what those claims might be. The primary judge noted (at [13]) that DKT20 did not assert that he would face harm in the future because of any previously articulated kind of political activity. There is no error in the primary judge’s conclusions on this ground.

Ground 2

35    As set out above, Ground 2 asserted that the primary judge erred in rejecting Grounds 3(a) and 3(b) in failing to find that the Tribunal’s decision that there was no real chance of harm to DKT20 in Iraq was illogical, irrational or legally unreasonable.

36    As was said by Crennan and Bell JJ in SZMDS at [131] and [135]:

131    [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.

…

135    [A] decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.

37    As was said in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [59] per Allsop CJ, Griffiths and Wigney JJ, in relation to legal unreasonableness:

[T]he Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).

38    Essentially, the question was whether the Tribunal’s reasons had a rational and logical foundation. The Tribunal’s decision was not legally unreasonable or illogical and the primary judge was correct in reaching this conclusion. There is no error in coming to this conclusion.

39    The background information and claims were extensively and clearly set out. The evidence was clearly reviewed as were the pre-hearing submissions. The claims and evidence were assessed and clear findings were made. The Tribunal was not satisfied that, if DKT20 returned to Iraq at that time or in the reasonably foreseeable future, there was a real chance that he would face serious harm on account of having made a complaint to the Commission of Integrity and his role in the electoral commission. The Tribunal set out its well and clearly articulated specific reasons for its state of non-satisfaction in [114] in 12 sub-paragraphs, which are set out at [7] above.

40    As the Minister submitted, the Tribunal was entitled to rely upon the absence of corroborating evidence and was entitled to rely on DKT20’s delay in making the protection visa application.

41    DKT20’s oral submissions were directed to the merits, taking issue with many of the findings which had been made. Generally, a Tribunal’s factual findings are not amenable to judicial review: “in ordinary circumstances a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination” (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 340-341).

42    The process before this Court is not a merits review but rather a judicial review with the focus on jurisdictional error. The submissions made (as to merits) do not assist in the consideration of whether the decision was legally unreasonable or illogical.

43    A logical, rational person could have reached the same decision on the material before the Tribunal. The conclusion reached by the Tribunal was clearly one which was open to it. The primary judge so concluded. There was no error in the primary judge doing so.

DISPOSITION

44    The appeal should be dismissed.

45    The appellants are to pay the costs of the Minister, to be taxed if not agreed.

Associate:    

Dated:    9 November 2023

SCHEDULE OF PARTIES