AZR20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Disposition of the appeal 5 The background to the appeal is set out at PJ [1]-[8]. It is relevant to note that the application was for review of the decision of a second Tribunal, after the decision of the Tribunal as originally constituted had been set aside by orders of this Court made by consent. 6 A summary of the reasons for decision of the Tribunal is set out at PJ [9]-[24]. 7 The appellant relies upon two grounds of appeal which reflect two of the grounds raised before the primary judge. As his Honour observed at PJ [9], the grounds concern the Tribunal's treatment of the appellant's representations concerning harm that he might suffer should he be returned to Iraq. It was open to the Tribunal to consider that matter in light of Australia's international obligations and/or domestically enacted laws concerning non-refoulement: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [29]-[30] (Kiefel CJ, Keane, Gordon and Steward JJ).

Ground of appeal 1 8 The first ground of appeal (and ground 1 before the primary judge) concerns [125] of the Tribunal's reasons, which states: It should be emphasised that in expedited hearing processes such as this, the Tribunal cannot make an assessment of protection obligations in the way that would occur were the applicant to make an application for a protection visa.10 Nor is the Tribunal required to conduct an extensive assessment of the applicant's claims to fear harm should he return to Iraq. 9 Footnote 10 is in the following terms: Reference should be made at this juncture to the provisions of paragraph 9.1(6) of Direction 90 which provides as follows: "It may not be possible at the section 501/501 CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection Visa application." 10 The nub of the first ground is that the primary judge should have found that the Tribunal misunderstood its review jurisdiction, and so fettered it by proceeding on the incorrect basis that it was required to expedite its review and so could not conduct a full assessment of the appellant's protection claims. When in fact, as a second review of the delegate's decision by the Tribunal, the Act (in particular s 500(6L)) imposed no time constraint on completion of the review: see Khalil v Minister for Home Affairs [2019] FCAFC 151 at [64] (Logan, Steward and Jackson JJ). 11 Nevertheless, as foreshadowed, the ground does not identify how the primary judge erred in dealing with this ground; it merely contends that his Honour should have found that the Tribunal erred, and asserts in general terms that the paragraphs where his Honour found to the contrary were erroneous. Consistently with that, the appellant's submissions on the ground of appeal merely re-ventilated the submissions about the proper construction of the Tribunal's reasons that he made below. 12 For the reasons given by the primary judge, the Tribunal did not misconceive its statutory function by unlawfully fettering its discretion. The Tribunal's reference to "expedited hearing processes" was, as the primary judge observed at PJ [42], infelicitous. But for the reasons his Honour gave (at PJ [33]) the infelicitous reference was not reflected in the review process that the Tribunal undertook in fact. 13 The statement that the Tribunal "cannot" make an assessment of protection obligations in the way that would occur were the applicant to apply for a protection visa was not a statement that the Tribunal considered itself legally precluded from undertaking an assessment of a comprehensive nature but, in context, was a statement that the review was being undertaken in the context of s 501CA of the Act and Direction No 90. As the primary judge explained at PJ [45], that was qualitatively different to the task of determining an application for a protection visa. Considered in context, including the context of the Tribunal's reference to [9.1(6)] of Direction 90, that is all the Tribunal meant. The Tribunal accurately described its task at [126] of its reasons. 14 Although the first respondent was granted leave to rely upon a notice of contention in relation to the first ground, as we agree with the reasons given by the primary judge for dismissing the ground, it is unnecessary to consider the notice of contention.

Ground of appeal 2 15 By the second ground of appeal (and ground 2 before the primary judge) the appellant contends that the Tribunal failed to properly engage with his representations in relation to being owed non-refoulement obligations. Again, the ground merely contends that his Honour should have found that the Tribunal erred and says that the paragraphs where he found to the contrary were wrong. 16 The representations identified before the primary judge are set out at PJ [50]. The appellant sought in this Court to draw attention to some additional materials that were not put to the primary judge, but that cannot support a finding of error on his Honour's part. The representations which, the appellant maintains, the Tribunal did not address properly were based on country information showing that Chaldean Christians, of whom the appellant was one, faced moderate risk of societal violence. That was violence of a kind that would fall short of the killing and kidnapping that had also been identified in the appellant's representations, which was the risk on which the Tribunal focussed. 17 Despite that focus, for the reasons given by the primary judge at PJ [70]-[75], the Tribunal still read, identified, understood and evaluated the representations made to it. That was consistent with its obligations as articulated in Plaintiff M1 at [24] and [36] (Kiefel CJ, Keane, Gordon and Steward JJ); see also ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8] (Mortimer, Colvin and O'Sullivan JJ). 18 The fact that the Tribunal's reasons dealt with some of the appellant's representations at a higher level of generality than others reflected the relative length, clarity and emphasis of the various representations made to it. The Tribunal accepted at [136] that Christians in Iraq face low levels of official discrimination and moderate levels of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority. The Tribunal said that it did "not doubt that it would be difficult for him over there due to his Christian beliefs" and observed that "there are an estimated 250,000 Christians continuing to live in Iraq including two sisters of the applicant". 19 The appellant contends that, nevertheless, the Tribunal's acceptance of those claims was not reflected in the Tribunal's ultimate conclusion on this subject (at [148]) that "due to the prospect of indefinite detention, the Tribunal places some weight" on the consideration of non-refoulement. But having read, identified, understood and evaluated the particular representations, the weight to be accorded to them was a matter for the Tribunal. The appellant did not otherwise contend that the Tribunal failed to have regard to any consideration made mandatory by Direction 90.

Conclusion 20 The appeal is dismissed with costs, to be taxed if not agreed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices O'Bryan, Jackson and Hespe.