Federal Court of Australia

AYJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 241

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

RAPER J:

1    This is an appeal from a judgment of the then-Federal Circuit Court of Australia, in which the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority or IAA) which affirmed a decision of a delegate of the first respondent (Minister) not to grant the appellant a temporary protection visa.

2    When considering whether to grant a person such a visa, the Authority is required to conduct an assessment as to whether the person is a “refugee” requiring protection in Australia and being unable or unwilling to return to his or her country because of a well-founded fear of persecution: ss 5H(1) and 5J of the Migration Act 1958 (Cth). In this case, the Authority determined that the appellant did not fit within the definition of refugee under the Act. Part of the appellant’s claim that he did fit this definition was that he had been the subject of telephone threats by Shia militia in late 2010/early 2011 and that someone, in 2011, had placed explosives on the bottom of his car in an attempt to assassinate him. These accepted facts, meant according to the appellant, that he had a special profile, from which he had a well-founded fear of persecution. The issue in this appeal is whether the Authority erred, by either its reasoning being illogical or irrational, at IAA[30], or otherwise failed to deal with this purportedly crucial claim or an integer of that claim.

3    For the following reasons, the appeal is dismissed.

Background

4    This appeal concerns a decision of the Authority. That decision was the second time that the Authority has reviewed a decision of the delegate. The appellant is a Sunni Muslim and ethnic Arab from Iraq. On 9 September 2012, he arrived in Australia by boat. On 13 January 2016, he lodged an application for a temporary protection visa. On 12 October 2016, a delegate of the Minister refused to grant the visa. On 31 January 2017, the Authority affirmed that decision. On 16 August 2018, the former Federal Circuit Court set aside the Authority’s decision and remitted the matter back to the Authority. On 1 May 2019, this Court dismissed the Minister’s appeal of the Federal Circuit Court’s orders for remittal. The Authority then, for a second time, considered the appellant’s claims. It is this decision which is the subject of this appeal.

5    The Authority was charged with considering the veracity of the appellant’s claims for protection. The appellant claims to be a practicing Sunni Muslim from Dhi Qar governorate in southern Iraq. In the period between 2004 and 2011, the appellant was employed as a police officer, where his role involved guarding trains, manning check points and being involved in the arrest of members of Shia militias.

6    The appellant claimed that at an unspecified time his police directorate was attacked by Shia militias who freed some prisoners and killed some police. However, he was not personally affected by this event. In addition, in or around December 2010 or January 2011, the appellant claimed that he began receiving threatening messages on his phone. In late February 2011, the appellant’s brother, J, died when the appellant’s car (which J was driving) exploded. The appellant believed that the bomb which killed his brother was intended to kill him, and ultimately left Iraq and travelled to Syria in April 2011. The appellant claims that if he returns to Iraq he fears that he will be severely mistreated or killed by Shia militias because he is a Sunni Muslim and because he was a member of the Iraqi Police Force.

The Authority’s decision

7    The Authority began by considering whether the appellant had a “well-founded fear of persecution” within the meaning of ss 5H(1) and 5J of the Act.

8    Relevant to this appeal, the Authority, as part of its consideration of the appellant’s claims, made reference to his receipt of threatening phone calls in or around December 2010 and January 2011 in the following way:

17.     He claimed that in about December 2010 or January 2011 he started receiving anonymous threatening phone calls from different numbers and voices. The callers made threats to the effect: ‘Your day is closed now, we’re going to slaughter you’, ‘You infidels, unbelievers, Sunnis. We want to cut your throats, we will rape your sisters, your sisters are whores’, and ‘You are a Sunni and you work for the police, we won’t let you, we will kill you’. Sometimes the caller said nothing but played Mahdi Army military songs. Initially he did not take the threats seriously as he did not have any enemies. However, his father advised him to be careful, not to travel far or to visit dangerous places. He was cautious but continued to work as a police officer.

18.     He claimed on 25 February 2011 his brother, [J], borrowed his car to buy breakfast. He started the engine and drove a short distance when the car exploded and he died instantly. Somebody had placed explosives on the bottom of the car in an attempt to assassinate the applicant. Following the attack, the applicant and his whole family a moved to Al Isiahi, 60 kilometres from the family’s home and on the outskirts of Nasiriyah. Twenty houses there belonged to his mother’s relatives and his family rented a home. However, his family advised him it was still unsafe for him to remain there because he could easily be located through the Shia militias' intelligence network. On about 19 March 2011 he went to Tikrit, Al Alam, because it was a distant place where he was unknown and it was a border town from which he could leave Iraq. In Tikrit he obtained a passport and temporary visa to enter Syria and on about 21 April 2011 he fled to Syria. After civil war broke out his father made arrangements for him to leave Syria and he departed around 1 August 2012, arriving in Australia in September 2012.

9    The Authority accepted that the appellant is a Sunni Muslim and that he was employed as a police officer in Dhi Qar governorate. The Authority also accepted Sunni Muslims are in the minority in southern Iraq (where the appellant is from): at IAA[23] and [24]. The Authority found that the appellant may have been identified as a Sunni at work and that, from time to time, the appellant may have overheard derogatory comments about Sunnis or had verbal abuse directed at him because of his religion: at IAA[24]. The Authority accepted that, at some point, there was a violent assault on the police directorate in which the appellant worked: at IAA[25]. The Authority accepted that (at IAA[26]):

… the applicant may have participated in a few police operations resulting in the arrest of Shia militia leaders and smugglers. However, unlike his other evidence about his policing duties, he lacked any detailed or specific knowledge about these events. As a consequence I conclude he was a marginal participant rather than having any notable involvement in the operations. I find that in any such raids the applicant participated in he was merely acting as part of the police force and following orders. I note the Ministry of Interior identity card he provided stated his rank was ‘cop’. Having regard to the card, and the applicant’s overall evidence about his limited weapons and other training and the nature of his role, I find that he was a low ranking officer during his service in the Iraqi police force. He has not claimed that he played any command or high profile role. As a consequence, I am not satisfied that as a result of having policed in this way he has any profile that would make him of ongoing interest to Shia militia, rogue members of Shia militia, or tribes associated with either militia or their rogue members. And while I accept that Shia form the majority in southern Iraq, I do not accept that the applicant does not have any tribal or religious ties in Iraq. His own evidence at the TPV interview indicated his family is well established in Dhi Qar governorate. He, his parents, and his siblings were born there, and continue to live in the governorate, as do his wife’s family. They have other relatives in the governorate, including in the area most of his family now live in.

10    The Authority then considered the appellant’s claims with respect to the alleged threats he received over the phone in or around December 2010 and January 2011, and his brother’s death, as follows:

28    I am willing to accept the applicant was threatened by Shia militia via his phone in late 2010 / early 2011 in connection with his work as a police officer and his religion. He has repeatedly claimed this happened, and there is some country information that indicates that this type of intimidation sometimes occurred. However, I have reservations about the related claim that his brother [J] was killed in a vehicle explosion aimed at him. Although country information supports that at that time being a police officer in Iraq was dangerous, it also indicates attacks on police generally involved indiscriminate mass attacks on police at check points and in police stations, and that this was usually carried out by the Sunni armed group ISIL, rather than individual police, particularly those of low rank, being targeted by either Sunni or Shia militias. Additionally, there is little evidence of either mass attacks or individual targeting of police in Dhi Qar governorate or southern Iraq more generally, with most violence directed towards police happening in central and northern Iraq. As a consequence, it seems somewhat unlikely that the application, who I have found was a low level police officer, albeit a Sunni police officer, would have been targeted personally as he has claimed. I accept that the death certificate he has provided for his brother is largely complete apart from the coroner’s section, as per the second translation provided. However, I still have some concerns about its authenticity, having regard to country information concerning which copy of the certificate is provided to the family, and the availability of fraudulent documents in Iraq. It is also somewhat perplexing that the first translation of the death certificate records [J’s] address as Basra, which is a different place and governorate to where the applicant claims the family lived at that time. The second translation is of no assistance in this regard as it does not translate this part of the death certificate. Nevertheless, given the consistency with which the applicant has made this claim, and having regard to his possible explanations at the TPV interview for at least some of the deficiencies in the death certificate, I am willing to accept that his brother [J] died in the circumstances claimed in 2011.

29    However, for the following reasons I am not satisfied there is a real chance that the applicant will suffer serious harm as a former police officer and Sunni Muslim from Dhi Qar governorate. Recent country information provides little support for the applicant’s assertion that he will be at risk of harm because he worked as a police officer over eight years ago. In March 2019 EASO reported that an Iraqi expert identified five major profiles of individuals who are targeted by the Shia militia dominated PMF. They were: political opponents, Sunni communities who are arbitrarily attacked after major terrorism incidents, activists and journalists, individuals who deviate from Shia social norms, and business owners. In May 2019 UNHCR assessed that in areas where ISIL maintains a presence, persons associated with, or perceived as supportive of, the Iraqi Government, are likely to be in need of international refugee protection. They also expressed the view that in parts of Iraq where ISIL does not maintain a presence, which includes Dhi Qar governorate where the applicant is from and all the other southern governorates, persons associated with, or perceived as supportive of, the Iraqi Government, such as police, may be in need of international refugee protection depending on the individual circumstances of the case. Although I note the report cites very few incidents occurring in the south to support that assessment.

30    The applicant worked as an ordinary police officer, without any leadership role and without any special profile, more than eight years ago. While I have been willing to accept that his brother may have been killed in an explosion aimed at intimidating him as a police officer, I have not accepted that the applicant was of ongoing interest to Shia militias, rogue militia members, tribes associated with either militia or their rogue members, or anyone else, when he ceased to undertake the role of police officer. Nor has he indicated an intention, desire, or capacity to return to the profession.

(Footnotes omitted.)

11    The Authority also found that recent country information provided little support for the proposition that Sunnis (including Sunnis with the appellant’s profile) from southern Iraq are subject to adverse treatment or that the level of insecurity in southern Iraq is such that he would be at risk of indiscriminate violence: at IAA[31]. The Authority was also not satisfied that the risk of the appellant suffering generalised violence was such that it rose to a real chance: at IAA[32].

12    Ultimately, the Authority concluded that the appellant did not meet the refugee requirements within the Act: at IAA[37]. The Authority also found that the appellant did not satisfy the complementary protection criterion: at IAA[42].

Primary judgment

13    The appellant sought judicial review of the Authority’s decision. Before the primary judge, the appellant advanced two grounds of review (at J[32]), neither of which are analogous to the grounds of appeal before me:

1.     The authority accepted all my claims for protection, however, they concluded that there is no real chance that I will be harmed if I go back to Iraq, the authority failed to properly address the real chance of persecution issue.

2.     The authority failed to address the risk posed by the people who I arrested in the past, in this regard, the authority failed to consider the risk posed by both the Shia and Sunni militias.

14    Before considering the formal grounds of review advanced by the appellant, the primary judge considered the appellant’s oral submissions where he claimed that “he played a prominent role as a police officer and made an assertion that his rank was that of a colonel, general or brigadier”. However, the primary judge noted that “no such claim or such a rank was advised before the Authority”: at J[25]. The primary judge held that the Authority considered the nature of the appellant’s duties and his training, and concluded that given his low profile he would not face a real chance or real risk of serious harm or significant harm: at J[26]. Further, the primary judge concluded that the appellant’s disagreement with the adverse findings by the Authority are, in substance, an invitation to engage in impermissible merits review: at J[27].

15    With respect to ground one, the primary judge discerned no jurisdictional error on the part of the Authority. His Honour found that the Authority’s reasons were “consistent with the correct application of the relevant law in determining whether the applicant has a well-founded fear of persecution”: at J[34].

16    With respect to ground two, the primary judge held that this ground reflects a “disagreement” with the Authority’s adverse findings in respect of the role the appellant played in arrests, and whether the appellant was of ongoing interest to Shia and Sunni militias: at J[37]. The primary judge concluded that the Authority did not fail to take into account the appellant’s claim in relation to the role he played in arrests, and instead made an adverse finding which was open to the Authority based on the material before it: at J[38]. Given the same, no jurisdictional error was made out in respect of this ground.

The appeal

17    On 18 May 2023, I ordered that the appellant be granted leave to file and serve the proposed amended notice of appeal, noting that the question of whether leave be granted for the appellant to rely upon the grounds contained within the proposed amended notice of appeal would be determined at hearing. At hearing, the Minister did not oppose the grant of leave to advance a new argument given its confined nature and that it turns on a construction of the Authority’s reasons. Accordingly, leave was granted.

18    The ground of appeal is as follows:

As noted by the Immigration Assessment Authority (“IAA”) in its decision dated 23 July 2019 at [17]–[18], the appellant claimed that in December 2010 or January 2011 the appellant began to receive anonymous phone calls in which the callers threatened to kill the appellant and in February 2011 the appellant’s brother J was killed when driving the appellant’s car in a situation where the incident involved “an attempt to assassinate the [appellant]”. The IAA at [28] accepted that “the applicant was threatened by Shia militia via his phone in late 2010 / early 2011 in connection with his work as a police officer and his religion” and “accepted that his brother J died in the circumstances claimed in 2011”. The “circumstances claimed” includes that the incident involved “an attempt to assassinate the [appellant]”. The IAA at [29] found that, despite accepting the appellant’s claims concerning the phone threats and attempted assassination, it was “not satisfied there is a real chance the applicant will suffer serious harm as a former police officer and Sunni Muslim from Dhi Qar governorate”. The IAA reasoned at [30] that, while the appellant’s brother may have been killed in an explosion “aimed at intimidating [the appellant] as a police officer”, the IAA “[has] not accepted that the applicant was of ongoing interest to Shi militias … or anyone else when he ceased to undertake the role of police officer” between the time of the above incidents and the time he left Iraq in August 2012. The IAA made errors in its reasoning process at [30] including the following:

a.    The IAA at [30] stated that “I have not accepted that the applicant was of ongoing interest to Shia militias … or anyone else when he ceased to undertake the role of police officer”. This statement refers back to an earlier finding at [26] that the IAA was “not satisfied that as a result of having policed in this way he has any profile that would make him of ongoing interest to Shia militias” and others. But this finding at [26], which the IAA relied on at [30], does not take into account and deal with the fact of the phone threats and attempted assassination between late 2010 and February 2011 (which the IAA did not accepted occurred until its reasons at [28]).

b.    The IAA at [30] stated that the explosion which killed the appellant’s brother was “aimed at intimidating [the appellant] as a police officer”. This finding concerning the motive of the attackers cannot be correct. The attackers tried to kill the appellant, and nearly succeeded. A dear person cannot feel intimidation.

c.    The IAA at [30] attributed to the attackers the motive of “intimidating [the appellant] as a police officer”. For reasons explained in (b), this motive cannot be correct. In the meantime, as the IAA noted at [28], based on country information, “individual targeting” of a “low level police officer” in Dhi Qar governorate was unusual. The IAA failed to consider the real possibility, if not likelihood given the attackers’ unusual interest in the appellant, that, to the attackers, the appellant had a profile beyond merely being a police officer.

The combination of errors in the IAA’s reasons at [30] involved jurisdictional error, which in turn affected the IAA’s finding at [29] that it was “not satisfied there is a real chance the applicant will suffer serious harm as a former police officer and Sunni Muslim from Dhi Qar governorate”. The primary judge in the Federal Circuit Court of Australia erred in failing to recognise this jurisdictional error.

Consideration

19    The appellant’s appeal is premised on impugning the Authority’s reasoning process at IAA[30] (extracted above) by reason of two main complaints based on alleged irrationality and/or illogicality or, on the same bases, misapplied or misunderstood its own finding such that it failed to deal with the appellant’s claim or an integer of that claim.

20    Care needs to be taken when considering what may comprise irrationality or illogicality. As Crennan and Bell J opined in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611:

131    …the 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.

…

133    …the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …

    (Citations omitted)

21    To establish jurisdictional error on the basis of illogical or irrational findings of fact or reasoning requires the demonstration of “extreme” illogicality where it is not enough for the question of fact to be one on which reasonable minds may come to a different conclusion: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(5)] per Kenny, Kerr and Perry JJ.

The No Ongoing Interest complaint

22    The appellant’s first complaint relates to what he describes as the Authority’s “No Ongoing Interest finding”, which is contained in the statement at IAA[30] that:

While I have been willing to accept that his brother may have been killed in an explosion aimed at intimidating [the applicant] as a police officer, I have not accepted that the applicant was of ongoing interest to Shia militias, rogue militia members, tribes associated with either militia or their rogue members, or anyone else, when he ceased to undertake the role of police officer.

(Emphasis added.)

23    The appellant submits that the Authority’s NOI finding was predicated upon their earlier “Policed In This Way finding” at IAA[26], which was in turn based upon an earlier finding within IAA[26] that the appellant was but a “marginal participant” in police operations that resulted in the arrest of Shia militia leaders and smugglers. By reason of this finding, the Authority (at IAA[26]) makes the PITW finding that it was:

…not satisfied that as a result of having policed in this way he has any profile that would make him of ongoing interest to Shia militia, rogue members of Shia militia, or tribes associated with either militia or their rogue members.

(Emphasis added.)

24    It is useful to extract the appellant’s critique of the Authority’s process of reasoning or factual findings in this respect:

b)    The IAA at [28] … accepted that:

i.    In late 2010/early 2011 “the applicant was threatened by Shi militia via his phone ... in connection with his work as a police officer and his religion” with the threatening phone calls including threats “to slaughter” the appellant (at [17]), “to cut your throat” (at [17]) and to “kill you” (at [17]).

ii.    The appellant’s “brother J died in the circumstances claimed in 2011”, being “an attempt to assassinate the applicant” (at [18]).

It appears obvious from these findings that the appellant was of serious interest to Shia militia between late 2010 and February 2011 – since they made verbal threats over the phone to kill him and then tried to assassinate him. Thus, although the appellant did not have a risk profile arising from the “way” in which he policed (see PITW Finding at [26]), by February 2011 the appellant clearly had a risk profile in some other way associated with “his work as a police officer” (at [28]) since he received verbal phone threats from the Shia militia “in connection with his work as a police officer” (at [28]) and he was the target of an assassination attempt involving the placement of explosives on the bottom of his car.

c)    The IAA at [30] purported to repeat the PITW Finding when it made the No Ongoing Interest Finding. But the IAA at [30], in fact, impermissibly and erroneously broadened the PITW Finding. Specifically, the PITW Finding at [26] is limited in its scope to the appellant’s profile “as a result of having policed in this way”, while the No Ongoing Interest Finding at [30] is to the effect that the appellant was not of ongoing interest to Shia militias etc “when he ceased to undertake the role of police officer” shortly after the assassination attempt on 25 February 2011. Yet the IAA’s findings at [28] explained at b) above indicate that the appellant was obviously of interest to Shia militia when he ceased working as a police officer in February 2011 since the Shia militia threatened over the phone to kill him, and then tried to assassinate him.

25    The appellant submits that jurisdictional error may be identified in the Authority’s reasoning or fact finding on the basis that it is impossible to reconcile their acceptance of the circumstances surrounding the death of his brother and threats against his life “in connection with his work as a police officer and his religion” with the NOI finding; and additionally, that the NOI finding had no intelligible justification.

26    I do not accept that this complaint identifies jurisdictional error. The Authority’s reasons must be read fairly, without an eye keenly attuned to error and as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271–2 per Brennan CJ, Toohey, McHugh and Gummow JJ; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [38] per Kiefel CJ, Keane, Gordon and Steward JJ.

27    It is worthwhile first understanding the context in which the Authority came to determine this matter for a second time. Upon remittal back to the Authority, the Authority sought information from the appellant of direct relevance to what it had to consider in the impugned section of its reasons.

28    On 28 June 2019, the Authority invited the appellant to provide information and to comment on certain information concerning the current state of affairs in Iraq (this is unsurprising given that the appellant had left Iraq in 2011) and what was perceived by the Authority to be a change in circumstances such that the appellant may not satisfy the definition of a refugee. The Authority stated, amongst other things, that:

This information from these reports is relevant to your case because, consistent with the information referred to by the delegate in the 12 October 2016 Protection Visa Decision Record, it indicates that overall security conditions in Iraq have been improving. It indicates a stable and secure security situation in southern Iraq / Dhi Qar governorate. It indicates that the rare security incidents that do occur in southern Iraq targets Shia Muslims, not Sunni Muslims, so as a consequence you are highly unlikely to be affected by such events. Having regard to your personal circumstances, it indicates that you did not fit the profiles of individuals targeted by the PMF. It does not indicate that Sunnis who were formerly police officers in Dhi Qar governorate / southern Iraq are being targeted. It does not indicate that Sunnis are being targeted in Dhi Qar governorate / southern Iraq. It does not indicate that returnees to Iraq from the West suffer adverse treatment.

Subject to consideration of your response, I may find that there is not a real chance of persecution or a real risk of significant harm to you in Dhi Qar governorate. I may therefore find that you did not have a well-founded fear of persecution and did not meet the definition of refugee…

29    In response, the appellant’s representative stated, amongst other things, that the appellant had a “special profile in Iraq, and that his situation is different to the rest of ex-police officers in Iraq or the rest of the Sunnis in that country” because of the special role he had whilst a police officer, which he described as follows:

My main duties included guarding trains and patrolling check points on the road, also I used to go in combat operations, to arrest militia members or those who are wanted by the central Iraqi government or the local provincial council in Dhi Qar province, I even took part in arrests against leaders in the Shiite Militias during my time in the police force , at one incident, the directorate of the police force in Suk Alshoyyokh was attacked by the militias, they killed a captain in the police force as well as some police force members, at that time I escaped the headquarter, during this time the militia members released some prisoners, after few days the central government sent special forces to restore the headquarter from these militias, one of the other main tasks that I used to have was to arrest people who smuggle oil using oil tanks, these people were predominantly from the Shiite militias, therefore my work in the police force in the south of Iraq posed great risk on my life, especially that I don’t have the tribal or religious protection that the other police officers have.

30    In the letter, he made the following submission in relation to the above statement:

The applicant’s statement reflects the fact that he arrested militia members (Shia or Sunnis), he arrested whoever was wanted by the Iraqi government or the local government of Dhi Qar, he stated that he even arrested leaders of the Shia militias, the applicant also referred to the escape of the prisoners from the directorate, which means that the applicant’s life is at risk from those militia members who escaped from prisons in Iraq , the situation for the applicant is that because he arrested militia members, including leaders in the militias , and because some of them escaped from prisons, then it is reasonable to think that the applicant will be targeted by individuals or militia groups who were prejudiced by the applicant’s actions, the authority’s letter dated 28-6-2019 refer to a very big terrorist organisation such as ISIS or Shia militias but it overlook the risk imposed by individuals who belonged to these militias (whether Sunni or Shia), those individuals are not necessarily committed to the commands of their respective militias , but rather , they may act individually, on their personal level to harm the applicant, rogue members of these militias are able to harm the applicant in his home town, irrespective of whether ISIS is powerful or not, it doesn’t matter that the Iraqi army was able to supress ISIS , it doesn’t matter that the Shia militias allied themselves with the Iraqi government under the PMU units, on the contrary, the fact that the Shia militias are part of the PMU makes the applicant’s life at greater risk, because, it means that the applicant as a Sunni who arrested shia leaders or militia members have no protection whatsoever from the Iraqi government due to the new alliance between the Shia militias and the government.

31    The appellant went on to reiterate in his response the specialness of his profile, “which led to the killing of his brother and which led to [him] fleeing Iraq”. The appellant thereafter described the content of 2017 and 2018 press and DFAT reports, concluding by saying:

It is the applicant’s submission that the people who are harmed by the applicant’s actions when he arrested them and who escaped their prisons will target the applicant because of his special profile as it is evident from his written and oral statement, and that even the general country information that the authority referred to doesn’t reflect the reality of the situation in that country.

32    This context confirms why the Authority’s reasons cannot be read in the way the appellant submits.

33    The appellant’s thesis centres on the reasoning in IAA[30], which, for ease of reference, is extracted again:

The applicant worked as an ordinary police officer, without any leadership role and without any special profile, more than eight years ago. While I have been willing to accept that his brother may have been killed in an explosion aimed at intimidating him as a police officer, I have not accepted that the applicant was of ongoing interest to Shia militias, rogue militia members, tribes associated with either militia or their rogue members, or anyone else, when he ceased to undertake the role of police officer. Nor has he indicated an intention, desire, or capacity to return to the profession.

34    The appellant submits that there are two “problems” with this reasoning from which the error arises. The less significant error is in the first clause of the second sentence (the use of “intimidate” complaint) (which is dealt with below) and the more significant error concerns the second clause in the second sentence – “I have not accepted that the applicant was of ongoing interest to Shia militias, rogue militia members, tribes associated with either militia or their rogue members, or anyone else, when he ceased to undertake the role of police officer”.

35    The appellant submits that this second clause picked up the finding made in the middle of IAA[26] (described by the appellant as the PITW finding), extracted at [9], namely “[a]s a consequence, I am not satisfied that as a result of having policed in this way he has any profile that would make him of ongoing interest to Shia militia, rogue members of Shia militia, or tribes associated with either militia or their rogue members”. It is submitted that that finding was only concerned with the manner in which the appellant had policed.

36    The appellant also submitted that the NOI finding in IAA[30] was concerned with the applicant’s risk profile and whether he was of ongoing interest at the point at which he ceased to undertake his police officer role, so in 2011, and that there was no logical or rational basis upon which it could be found that he was not of ongoing interest at that point in time given that he had been the subject in that year and the year before of intimidatory threatening calls and an attempt had been made to assassinate him (which had led to the death of his brother).

37    As to the latter, it is my view when one reads IAA[30] in the context of the rest of the reasoning that the finding regarding the applicant no longer being of “ongoing interest” is being determined from 2011. Therefore, contrary to the appellant’s submission, there was no illogicality or irrationality in its finding that the appellant was not of “ongoing interest”.

38    This is apparent from the structure of the Authority’s reasons. The Authority commences its consideration of this part under the heading “Refugee assessment” and identifies the relevant definition of “refugee” and what “well-founded fear of persecution” under the Act means. The Authority then considers the appellant’s claims regarding his ethnicity, when he was appointed a police officer, the 2006 sectarian violence, and the claims of the threatening phone calls starting in 2010 or 2011 and the attempted assassination in 2011. The Authority then describes what it understands to be the appellant’s fears if he were to return to Iraq by reference to his submissions, information provided to the Authority, the temporary protection interview, his application and statutory declaration. The Authority then goes on to describe those aspects of his claim that it accepted.

39    When considering the PITW finding in IAA[26] regarding the appellant’s role, that finding must be understood in the context of the Authority’s request for information and the appellant’s response (as referred to above). In particular, the particular tasks the appellant says he undertook as a police officer were central to his claim as to the specialness of his profile and why, by reason of the duties he discharged in that role, he claimed that it was likely, if he returned to Iraq, he would be targeted. Accordingly, I do not accept the rigidity of the appellant’s submission as to the limited nature of the finding in IAA[26].

40    Furthermore, it is necessary to consider the Authority’s reasoning between IAA[26] and IAA[30] and thereafter to properly and fairly construe its reasoning in IAA[30]. At IAA[28] the Authority accepts the appellant’s claims regarding intimidation and the attempted assassination in 2011.

41    However, at IAA[29] the Authority finds, for the reasons stated thereafter, that it was “not satisfied that there is a real chance the applicant will suffer serious harm as a former police officer and Sunni Muslim from Dhi Qar governorate”. This is reasoned to be so by the fact that recent country information provides little support for the appellant’s assertion that he would be at risk of harm “because he worked as a police officer over eight years ago”.

42    The Authority picks up, in IAA[30], again the fact of the effluxion of time (referring to the appellant working as a police officer “more than eight years ago”), as well as the absence of the appellant having a “special profile”. Accordingly, it apparent that its reasoning is cumulative and concerned with whether, eight years on, the appellant remains a person of interest. Consistent with this view, and contrary to the appellant’s assertion, the Authority refers in the last sentence of that paragraph to the fact that the appellant had indicated no intention, desire or capacity to return to policing, from which it must be inferred that the NOI finding concerns the Authority’s view in from 2011 until 2019.

43    Accordingly, the appellant’s claim that the NOI finding in IAA[30] does not take into account the fact of what occurred in 2011 or fails to take into account his profile as a police officer or a Sunni or a person from a particular locality or a combination of the same is not accepted. It is clear from what precedes and follows IAA[30] that the Authority engages with the then most recent country information (which it had informed the appellant about and sought his response). In the following paragraph, IAA[31], the Authority finds that the country information provides little support for the proposition that Sunnis, including with the appellant’s profile, are subject to adverse treatment. Thereafter, the Authority forms the view that the appellant does not fit any of the risk profiles identified by the country information: IAA[32]. In addition, the Authority refers to the fact that the appellant’s wife and children, as well his parents and siblings, continue to live in Dhi Qar and have not been the subject of any adverse treatment since to the appellant left Iraq: IAA[32]. It is my view that those matters inform the Authority’s finding at IAA[30].

44    Ultimately, I accept the submission of the Minister that the finding at IAA[30] was not illogical or irrational, nor misunderstood or misconstrued the finding at IAA[26] nor otherwise failed to deal with the risk of harm at the time of the Authority’s decision based on its findings at IAA[28]. I do not accept that it is not possible for reasonable minds to differ as to whether, despite what happened to the appellant in 2010 and 2011, by reason of the effluxion of time and the circumstances in Iraq, as at 2019, there was no longer a well-founded fear of persecution. Reasonable minds may come to different conclusions in this regard. It is apparent from the Authority’s reasons that the factual continuum informed its assessment and found that there had been a change in circumstances. For these reasons, there is no foundation to the appellant’s first complaint.

45    However, if I am wrong, it is my view that the error would not be categorised as being material. This is because the purported error regarding whether the appellant was of no ongoing interest in 2011 would be categorised as an error made “on the way” that is not critical to (CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493 at [35]) and does not dislodge the ultimate finding, that the appellant was of no ongoing interest to Shia militias and other groups from 2011 up until 2019 based on up to date country information and the fact that the appellant had no interest in returning to the policing profession.

The use of “intimidate” complaint

46    The appellant’s second complaint about the Authority’s reasoning process at IAA[30] is its finding that the explosion resulting in the appellant’s brother’s death was aimed at “intimidating” – as opposed to killing – the appellant. The appellant submits that by erring in respect of the attackers’ motivations the Authority consequently erred in relation to its finding of the appellant’s risk profile.

47    The appellant submits that errors are material on the basis that the NOI finding was critical for the Authority’s finding at IAA[29] that it was “not satisfied there is a real chance the applicant will suffer serious harm as a former police officer and Sunni Muslim from Dhi Qar governorate”, from which the submission followed that, had the Authority reasoned and found facts in accordance with law, there is a realistic possibility that the Authority’s decision could have been different.

48    I accept that the Authority appears to conflate its findings regarding the intimidatory conduct in 2010 and 2011 with its finding at IAA[18] and [28] that somebody had placed explosives on the bottom of the appellant’s car in an attempt to assassinate him. However, it is clear from the Authority’s articulation of these separate claims at IAA[17] and IAA[18] and then its particular findings with respect to them at IAA[28] that the Authority understood the distinction between the separate claims, and the wording in IAA[30], whilst clumsy, is not indicative of error. It is my view that the Authority’s reasoning in this regard, when read fairly and as a whole, does not establish jurisdictional error, by use of one noun, “intimidating”.

49    Furthermore, even if the clause was an erroneous finding of fact, there is no reason to conclude that the use of that word was so erroneous as to amount to jurisdictional error, for there is no error of law in making a wrong finding of fact per se: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356.

50    Furthermore, I accept that even if there was error in using the verb “intimidating”, the erroneous fact finding was not made “on the way” to the Authority’s ultimate findings. It must be a foundational element, critical or central to the Authority’s decision, which the use of the word intimidating was not. The appellant submitted that it was a critical aspect given his submission regarding the nature of the appellant’s special profile and what the appellant asserted was otherwise erroneous in the Authority’s reasoning in IAA[30] by reason of the matters raised in his first complaint. However, for the reasons expressed in relation to the first complaint, it is my view that what occurred in 2010 and 2011 was no longer a critical issue as at the time of the assessment in 2019.

Conclusion

51    For the above reasons, it follows that the appeal be dismissed with costs.

Associate:

Dated:    15 March 2024