CWX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

AAT decision 26 On 11 May 2018 the AAT affirmed the delegate's decision to cancel the appellant's visa. 27 The AAT summarised the ground for cancellation as being that "the appellant claimed in his visa application that he and his immediate family were stateless and not entitled to citizenship of any country which was incorrect and concluded that the [appellant] was an Iraqi citizen". 28 At para 14 of its decision record, the AAT set out the particulars of non-compliance with s 101(a) and s 101(b) in the s 107 notice, including the following: In response to question 42 - "Why did you leave that country?" He stated in his "Statement of XXXXXXX XXXXXX" that he was a stateless Bidoon; he did not have a right to citizenship or a right to reside in any country; he had experienced extreme disadvantages and discriminations as a stateless Bidoon in Kuwait; he had campaign" for Bidoon issues and as a result he was arrested and tortured by the authorities [sic]. 29 The AAT found that there was non-compliance with s 101(a) and s 101(b) of the Act by the appellant in the manner described in the s 107 notice. 30 In reaching its conclusion, the AAT found the appellant's evidence to be unreliable. This finding was preceded by several adverse findings about the evidence given by the appellant to the AAT including: (1) The appellant claimed that the form of his birth certificate shows that he is Bidoon and that it is different from a birth certificate for a Kuwait but this claim was not supported by the certificate on its face (para 24 of decision record). (2) The appellant's evidence concerning how he obtained visas to enter Iraq in 2012 and 2013 was inconsistent with the Iraqi government's requirement that a person travelling on an Australia-issued travel document of the kind issued to the appellant for those trips had to apply for a visa at the Iraqi embassy or consulate in Australia (para 30 of decision record). (3) The appellant's evidence about his lack of involvement in his wife's application for a partner visa was implausible and inconsistent (para 37 of decision record). (4) The appellant was avoiding responsibility for, or association with, documents that were inconsistent with the information he had provided during his visa application (para 38 of decision record). (5) The appellant's evidence about the reason his wife went to Al-Samawa, Iraq, from Kuwait, was inconsistent. His evidence about his going to Al-Samawa was inaccurate and deliberately vague (para 39 of decision record). (6) It was implausible that the appellant's pregnant wife would have remained in Kuwait after he left in September 2010 for more than nine months with their four children, and given birth to the youngest child there in April 2011, if she had been subjected to the ill-treatment he claimed was because of him (para 40 of decision record). 31 At paras 41 and 42 of its decision record, the AAT found: 41. The applicant's evidence about obtaining visas when he arrived in Iraq is contrary to the requirements that a visa is obtained from the Embassy or a consulate in Australia. His claim to have burned his 2013 Titre de Voyage at the suggestion of a friend when his new one was issued in 2017, is implausible. 42. The Tribunal found the applicant's evidence to be unreliable. He had many opportunities to explain why the Iraqi documents had been provided but failed to give a satisfactory answer. 32 On a fair reading of the decision record, the Tribunal's assessment of the appellant's evidence as unreliable relates to his evidence generally. The finding is made at the conclusion of a detailed consideration of the appellant's evidence before the AAT, commencing at para 23 of its decision record. I do not accept the appellant's submission that the finding relates only to the AAT's consideration of the appellant's evidence about the Iraqi documents provided by his wife in support of her partner visa application, particularly where paras 40 and 41 address the different topics of the wife's location after September 2010 and the appellant's entry into Iraq. 33 In relation to the appellant's claim of statelessness, the AAT made the following findings: 46. The Tribunal accepts that the applicant's wife described the applicant as "stateless" in her application and he maintains his claim to be a stateless Bidoon from Kuwait, however, while there may be Bidoons in Kuwait who are stateless, the Tribunal does not accept that any of the applicant or any member of his family belongs to that group. It finds that the applicant is a citizen of Iraq and was when he applied for the visa. 47. … The applicant claimed that his family, including his wife, was stateless. That she had Iraqi citizenship is inconsistent with his claim that she was stateless. If she was stateless, the Iraqi documents she provided, [a]part from the passports, were false. He could have said so. He could have said that she had obtained Iraqi citizenship since 2010. He did not. He provided no satisfactory explanation. 48. In finding that the applicant is an Iraqi citizen, the Tribunal has taken into account that in 2007-2008, the applicant was a documented Bidoon residing in Kuwait, based on the Review Card issued by The Executive Committee for Illegal Residents' Affairs and was entitled to the rights and benefits conferred by that status. The country information shows that the information on the card is consistent with the annual card issued by that committee. The Tribunal does not accept the submission that it was not such a card. The country information shows that the individual circumstances of Bidoon in Kuwait vary greatly and that documented Bidoon suffer discrimination but that it is unlikely such a person could demonstrate that return to Kuwait would put the person at a real risk of persecution on the basis of being Bidoon alone. The Tribunal does not accept that because he was a documented Bidoon in Kuwait in 2007-2008, he was not an Iraqi citizen then or in 2011. 49. It does not accept that because the Iraqi documents are dated 2012 and the passports 2013 and came into existence after the applicant provided the subject information, they do not demonstrate that the information was wrong at the earlier time. The applicant has given no explanation to support that contention. He has not maintained that the Iraqi documents are false. 34 At para 50 of its decision record, the AAT found that the applicant did not comply with s 101(a) of the Act by his failure to state that he is also known by the name used on the children's Iraqi citizenship certificates and Iraqi personal identification cards. 35 At paras 51 and 52, the AAT concluded: 51. The Tribunal finds that the applicant did not comply with s 101(b) of the Act in the way described in the s 107 notice, in the manner particularised in the notice. 52. For these reasons, the Tribunal finds that there was non-compliance with s 101(a) and (b) by the applicant in the way described in the s 107 notice. 36 Having found that the appellant did not comply with s 101(a) or s 101(b) of the Act, the AAT considered whether his visa should be cancelled. Having regard to a range of circumstances, the AAT concluded that the visa should be cancelled. Accordingly, it affirmed the delegate's decision.

FCCA proceeding 37 In June 2018, the appellant sought judicial review of the AAT's decision. 38 In August 2019, the appellant filed an amended application without leave. 39 The amended application contained four new grounds and abandoned the grounds that had previously been relied upon. Only the first proposed new ground is relevant to the appeal. That ground stated: The applicant stated on a number of occasions as part of his protection visa application that, in the lead up to a national election in Kuwait in 2010, he engaged in political activism in relation to the rights of Bidoons in Kuwait and as a result he was arrested and detained for five months and tortured (the Kuwait Activism Claim). The Administrative Appeals Tribunal, in its decision dated 11 May 2019, did not consider a) the truthfulness or otherwise of the Kuwait activism claim or b) the fact that in 2010 the department, after interviewing the applicant, accepted the Kuwait activism claim was true. If the Kuwait activism claim was true, this would affect the assessment of whether the applicant was an Iraqi citizen at the time. In the circumstances, the Tribunal's failure to consider the truthfulness or otherwise of the Kuwait activism claim is a jurisdictional error. Alternatively, if the Federal Circuit Court construes a sentence in the Tribunal's decision as a finding rejecting the Kuwait activism claim. Then, the Tribunal made this finding: (a) without having regard to the evidence before it concerning the Kuwait Activism Claim; or (b) without giving proper and genuine consideration to this evidence. In either case, this is a jurisdictional error. 40 In his Honour's reasons for judgment, after summarising the AAT's decision, the FCCA judge addressed the appellant's application to file the amended application for judicial review. 41 After setting out the proposed new grounds and the Minister's submissions concerning their merit, the FCCA judge lamented "the unsatisfactory way in which this matter has been prepared and come on for hearing", stating that both the court and the Minister had been "seriously disadvantaged and inconvenienced". His Honour noted that he was required to consider the merits of the proposed grounds to determine whether to grant the appellant leave to rely upon them. 42 The FCCA judge then addressed the four proposed new grounds of review in turn. His Honour's reasons in relation to the first proposed ground were as follows: [45] This ground asserts jurisdictional error by failing to deal or properly deal with the applicant's claims concerning the events in Kuwait. The applicant's counsel asserts a wide range of errors in what could be described as a scattergun approach. It should be noted that the Tribunal's reasons must not be read with too fine an eye for error. Allegations of irrationality or illogicality in the reasoning must be extreme before jurisdictional error will be established. In circumstances where the outcome is based on a number of findings and the impugned finding is but one that may have led to the ultimate conclusion, jurisdictional error will not be made out; see DSY16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at paragraph [19]. [46] I am reasonably satisfied the Tribunal did consider and deal with the claims made concerning Kuwait. The Tribunal did so by finding the applicant was an Iraqi citizen and not a stateless Bidoon. I agree with the first respondent's submission that a fair reading of the Tribunal's reasons indicates it rejected the applicant's evidence as unreliable and that the applicant did not comply with s 101(b) of the Act. The Tribunal found that the applicant was not stateless. The claims of activism were, to my mind, of little moment and could not have impacted on the ultimate outcome. [47] There is no jurisdictional error. There was nothing unreasonable, irrational or illogical in the reasoning process of the Tribunal, given the totality of the evidence before it. I am not satisfied that any evidence was overlooked or that the claim were not given proper and genuine consideration.

Appeal from refusal to grant leave to rely on amended application 43 The FCCA judge's alleged errors were made in the course of his Honour's consideration of whether to grant leave to the appellant to rely on an amended application for judicial review. His Honour ultimately refused to grant leave, on the ground that the amended application lacked merit. The appellant did not dispute that lack of merit is a proper basis for the refusal of leave to file an amended application for review. 44 There is a single ground of appeal in the notice of appeal, expressed to concern the FCCA judge's failure to find error in the AAT's finding that the appellant was an Iraqi citizen when he applied for a protection visa in Australia. In particular, the appellant challenges: (1) the finding of the FCCA judge that the "Kuwaiti activism claim" was immaterial to the AAT's decision; and (2) the FCCA judge's reasoning that the AAT dealt with the "Kuwait activism claim" by finding that the appellant was an Iraqi citizen at the time he applied for a protection visa. 45 The FCCA judge's decision to refuse leave involved the exercise of discretion. Accordingly, on appeal, the appellant is required to demonstrate an error in the exercise of that discretion, explained in House v R [1936] HCA 40; 55 CLR 499 at 505 relevantly, as follows: If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. 46 In effect, the appellant's argument was that, in reaching his Honour's conclusion, the FCCA judge had erred in failing to find that the appellant had grounds to argue that the AAT had failed to have regard to, and give proper and genuine consideration to the evidence before it. Specifically, the appellant argued that the FCCA judge erred in failing to find that it was arguable that the AAT had not given proper and genuine consideration to the "Kuwaiti activism claim" , in reaching the conclusions at paras 51 and 52 of its decision record set out at [35] above. 47 The Minister noted the following relevant principles: (1) A decision maker is not required to refer to every aspect of every issue that is before them. Although a lack of consideration may be inferred from a decision-maker not expressly dealing with a matter in their reasons, such an inference will "not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point": Appellant WAEE v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47]. Matters may be dealt with in findings of greater generality, or through a factual premise upon which a contention relies being rejected. (2) Even if corroborative evidence is not considered, this will not result in jurisdictional error unless it can be shown to have been sufficiently cogent, central and substantial as to have been capable of affecting the jurisdiction of the Tribunal: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [97]-[112]; SZWCC v Minister for Immigration and Border Protection [2015] FCA 1402 at [35]-[41]. (3) It has been recognised that "there is a need to exercise caution in relation to the use of the expression 'proper, genuine and realistic consideration' because there is a danger that it may draw the Court into an impermissible merits review": Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [38]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [32]. (4) Whilst the AAT must demonstrate an active intellectual process in relation to an application, this does not require the AAT to refer to every piece of evidence or contention that is before it. "Nor does it require the Tribunal to provide lengthy or detailed reasons" in relation to those matters that it deals with: Minister for Immigration and Border Protection v Lium [2019] FCA 1850 at [39]. 48 The duty to give "proper, genuine and realistic consideration" to a matter applies to a matter to which the decision-maker is required to consider: Singh v Minster for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [30]. In Singh, the Full Court explained at [36]-[37]: [36] The principle does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; ETA067 at [13]. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter. [37] In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant: (1) First, the degree of consideration which is necessary for the jurisdiction to be exercised … is affected by the centrality of the matter which it is said was not engaged with, to the issues and the prominence the matter assumed. (2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement: (a) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272; (b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and (c) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48]. 49 A decision-maker will fail to give proper and genuine consideration to evidence in a manner which involves jurisdictional error where the decision-maker makes "uncritical references" to important evidence without "actually consider[ing] what significance and weight it deserved": NAJT v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at [212] (Madgwick J, Conti J agreeing). 50 Where there is ambiguity or uncertainty as to the manner in which a decision-maker has dealt with an applicant's claim, the Court may find on a judicial review application that the decision-maker has not properly and genuinely considered the claim. For example, in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327; (2013) 233 FCR 534 at [29]: Ambiguity in reasons provided may not be sufficient to expose legal error. But the cursory manner in which the [decision-maker] summarily dismissed the claims being made, together with a lack of certainty as to what was in fact being resolved, leaves inescapable a conclusion that no proper and genuine consideration was given to the claims and materials sought to be relied upon.

Appellant's submissions 51 The appellant's submissions addressed at length the matters and circumstances which led to the grant of his protection visa. In particular, the appellant referred to the following matters: (1) His detailed account of discrimination he faced as a Bidoon in Kuwait at an unauthorised arrival interview in October 2010. (2) He was born in Kuwait, lived in Kuwait all his life, had no close family members who lived in Iraq, stated at his entry interview that he had never lived for more than one month in any country apart from Kuwait and, on fleeing Kuwait in September 2010, did not pass through Iraq. The appellant submitted that these are not background characteristics of a person who, according to a finding of the AAT, was an Iraqi citizen. (3) In a statement dated 20 November 2010, the appellant detailed the discrimination he suffered as a Bidoon up to May 2009 and made claims concerning his political activism in the lead up to the Kuwaiti national council election of 2009, and consequential arrest, detention and torture in Kuwait up to October 2009. (4) On 23 November 2010 the appellant was again interviewed. A decision by the Minister's delegate dated 28 January 2011 records part of the evidence the appellant gave at the interview. As recorded in the delegate's decision, the delegate considered that the appellant's oral evidence concerning his claims was "coherent", "consistent", "spontaneous" and "detailed". (5) On 17 December 2010 the appellant's agent provided a post-interview submission to the Department. By this time, the appellant had provided to the Department a green card from Kuwait in his name issued on 1 October 2007 and valid until 31 March 2008. (6) On 28 January 2011 the Department issued a notification of refugee status assessment outcome which concluded that the appellant "should be recognised as a refugee". The decision-maker stated in part: The claimant's statements at the RSA interview were generally coherent, consistent with his entry interview statements and RSA request statements and lacking in obvious exaggeration … After discussing his evidence at the RSA interview, I am satisfied that the claimant has provided a genuine account of his life in Kuwait. His responses were sufficiently detailed and spontaneous to satisfy me he was recalling information that was consistent with him speaking from personal experience. The decision-maker added: Based on the claimant's consistent statements … I accept the claimant's version of events surrounding his detention and treatment while detained … In February 2012 and August 2013 the appellant travelled to Iraq for about four and six months respectively. 52 On 23 January 2017 the appellant's agent sent a response to the s 107 notice. The appellant referred to the contents of that response, which explained the availability of identification documents in Iraq which are genuine but contain incorrect information. For example, the Landinfo report published in December 2015: (a) for passports - explains how "a passport can be genuine … but may contain incorrect information" and "the occurrence of false personal data in genuine passports may be an indication of inadequate verification against population registers and of fake breeder documents"; and (b) for nationality or citizenship certificates - explains how "a high percentage of nationality certificates" may be forged and others may be genuine but obtained by bribes. 53 The appellant also noted the finding of the delegate, in deciding to cancel his visa, that the appellant "may be Bidoon and had experienced harassment as a Bidoon in Kuwait." 54 The appellant submitted that, from the time of his arrival in Australian waters in 2010, he made detailed claims concerning his history in Kuwait which had been accepted as credible. These included that: (1) He was born and resided in Kuwait until he departed Kuwait in September 2010 and made his way to Australia. (2) In the years before a national election in Kuwait in May 2010, he experienced significant discrimination and disadvantage as a Bidoon in Kuwait. As a result of the discrimination, in the lead up to the national election, he engaged in political activism in relation to the rights of Bidoons. As a result, he was arrested, detained for five months and tortured.

AAT decision record 55 The appellant acknowledged that it was "not … impossible" for the AAT to conclude that the appellant was an Iraqi citizen in 2011 (the relevant time for assessing the truthfulness in completing the Forms 866B and 866C). 56 However, the appellant argued that the AAT had erred in making that factual finding, from which it followed that he had not complied with s 101(b), by "failing to have regard to, and give proper and genuine consideration to the evidence before it, in arriving at its ultimate conclusion". 57 The matters on which the appellant relied to contend that the AAT had erred in this respect were: (1) The AAT's failure to advert to the matters identified in [54] above in the context of the finding that the appellant was a citizen of Iraq; (2) The absence of consideration about how a person with the appellant's background (born and lived in Kuwait all his life) might become an Iraqi citizen in the first place. (3) The absence of consideration about why the appellant would suffer discrimination in Kuwait as a Bidoon and engage in political activism in Kuwait in opposition to the discrimination, at the risk of arrest and imprisonment, if he was an Iraqi citizen. (4) The absence of consideration of the asserted fact that, if the appellant was an Iraqi citizen who experienced significant discrimination in Kuwait, one would expect him to move to Iraq. (5) The absence of evidence about whether a Bidoon in Kuwait who is an Iraqi citizen would experience the same discrimination as a Bidoon who is not an Iraqi or Kuwaiti citizen. (6) The sole reference by the AAT to the Kuwaiti activism claim at para 14 of its decision record, in summarising the alleged non-compliance with s 101(b); (7) The AAT's failure to advert to the positive assessment of the appellant by the Minister's delegate in assessing his protection claim. (8) The AAT's failure to consider and assess the appellant's specific claims of extreme disadvantage and discrimination. (9) At the Tribunal hearing, the AAT member did not discuss the Kuwaiti activism claim with the appellant. 58 The appellant noted that, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] the High Court, in considering s 430 of the Act, stated that the failure by a decision-maker to mention a matter in the s 430 statement may "entitle a court to infer that any matter not mentioned … was not considered by the tribunal to be material", which in turn may reveal some basis for jurisdictional error. See also Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; (2010) 187 FCR 362 at [43]-[72] (Kenny J) and [80]-[97] (Rares J).

FCCA judge's reasons 59 The appellant argued that the AAT's finding that he was an Iraqi citizen does not, without more, mean that the AAT considered and dealt with the appellant's claims concerning Kuwait, let alone gave proper and genuine consideration to the claims. No paragraph of the AAT's reasons for decision suggests that the AAT considered and dealt with the appellant's claims concerning Kuwait. The FCCA judge erred in concluding otherwise. 60 Next, the appellant argued that the FCCA judge misconstrued the AAT's finding as to the unreliability of his evidence. 61 Thirdly, the appellant contended that the FCCA judge erred in his assessment that the Kuwaiti activism claims were "of little moment and could not have impacted on the ultimate outcome".

Minister's submissions 62 The Minister submitted that the notice of appeal raised a single ground which concerned two findings of the FCCA judge, being the finding that the Kuwaiti activism claim was immaterial to the AAT's decision and the finding that the AAT dealt with that claim by its finding that the appellant was an Iraqi citizen at the time he applied for a protection visa. 63 Accordingly, the Minister objected to any attempt by the appellant to raise additional grounds of appeal based on evidence about his birthplace or residence prior to arriving in Australia, and his claims of discrimination. In any event, the Minister contended that the AAT had regard to evidence regarding the appellant's place of birth and residence in Kuwait. 64 The Minister submitted that the FCCA judge found, at [34]-[37] to [45]-[47] of his Honour's reasons, that the activism claims had been dealt with through the AAT's rejection of the appellant's evidence as unreliable and findings that the appellant had not complied with s 101(b) of the Act. I do not agree with the FCCA judge made a finding to this effect. Paragraphs [34]-[37] of his Honour's reasons summarise the Minister's submissions to the FCCA. Paragraphs [45]-[47] are set out above. 65 The Minister contended that the AAT considered the appellant's claimed background of discrimination within the context in which this claim was made (i.e. within the context of the appellant's claims to have been a stateless Bidoon whose mistreatment spurred him towards activism, following which he developed an adverse profile and was mistreated by the authorities). 66 The Minister submitted that the AAT had referred to the appellant's claims of political activism in its summary of the delegate's decision (at para 14 of the decision record). The AAT expressly referred to the appellant's claims to have campaigned for Bidoon issues and to have been "arrested and tortured by the authorities" in result. The AAT referred to the delegate's conclusion that the appellant's "adverse profile claims" were "undermined" by the conclusion that the appellant was not a stateless Bidoon, resulting in the finding that the appellant had provided "incorrect answers" for the purposes of s 101(b). 67 The Minister observed that the appellant's claims of statelessness were the focus of the AAT's decision. 68 The Minister also referred to the AAT's finding (at para 17 of the decision record) that the appellant had maintained that he has always provided correct information about himself and his family and about his mistreatment in Kuwait because he is Bidoon. At para 18 of the decision record, the AAT recorded the appellant's claim that his wife was harassed and interrogated about his whereabouts by Kuwaiti police. 69 The Minister submitted that, ultimately, a fair reading of the AAT's decision indicates that the AAT considered that the appellant had been caught out. He had made various protection claims based on his alleged status as a stateless Bidoon. Those claims included his political activities in Kuwait. His wife then lodged a visa application contradicting what he had previously said about his family's statelessness. This undermined the appellant's core claim of statelessness. It also undermined his claim to have been spurred towards political activism and to have suffered in result. It is apparent that those claims were not accepted by the AAT, which found that the appellant did not comply with s 101(b) of the Act in the manner particularised in the s107 notice. 70 Within this context, the Minister submitted, it is unrealistic to suggest that the AAT may have accepted the appellant's claims of statelessness had it given further consideration to his claims of activism. Those claims were not overlooked by the AAT. The appellant's submissions do not meet the high thresholds of the errors that he alleges. Rather, they invite the Court to disagree with the weight given to this part of the evidence and the reasoning of the AAT. They thus seek impermissible merits review.

Consideration 71 The appellant's case is squarely concerned with the legality of the AAT's factual finding that the appellant is an Iraqi citizen.. 72 The first issue for the FCCA judge was whether it was arguable that the "Kuwaiti activism claim" was relevant to that factual issue. The proposed ground of review asserted that, if the "Kuwaiti activism claim" were true, this would affect an assessment of whether the appellant was an Iraqi citizen at the time of his protection visa application. 73 The AAT plainly accepted that the appellant had significant links with Kuwait. At para 44 of its decision record, the AAT accepted that the documentation, provided by the appellant and showing he and his wife's links with Kuwait, was genuine. The AAT also accepted that, in 2007-2008, the appellant was a documented Bidoon residing in Kuwait. The AAT did not accept that the appellant's status as a documented Bidoon residing in Kuwait in 2007-2008 was inconsistent with a conclusion that the appellant was an Iraqi citizen either then or in 2011. 74 In his response to the s 107 notice, the appellant purported to set out a portion of the Iraqi constitution to the effect that, subject to law, Iraqi citizenship is conferred on anyone who is born to an Iraqi father or mother. Thus, on the appellant's case, the mere fact of birth and residence in Kuwait is not necessarily inconsistent with Iraqi citizenship. Even so, it is arguable that the "Kuwaiti activism claim" may support a conclusion that the appellant is not an Iraqi citizen because, otherwise, he might have availed himself of some right as an Iraqi citizen to avoid the harassment and discrimination that he was experiencing in Kuwait. 75 On this basis, I accept that, in making its finding that the appellant was an Iraqi citizen, it was open to the AAT to have taken into account the "Kuwaiti activism claim". 76 I disagree with the FCCA judge, to the extent that his Honour intended to say that the AAT's finding that the appellant was an Iraqi citizen (and not a stateless Bidoon) evidences a consideration of the appellant's "Kuwaiti activism claim". The decision record does not reveal whether the AAT accepted the "Kuwaiti activism claim" as truthful, in whole or part, or whether it considered that the claim bore upon its finding that the appellant was an Iraqi citizen. 77 The AAT's decision record does not state the particular reasons for its finding that the appellant was an Iraqi citizen, however, on a fair reading of the decision record, the finding was an inference drawn from one or more of the following findings on the basis of all of the available evidence: (1) The authentification of the appellant's marriage contract stated that the appellant "resides in Al-Samawa" in Iraq. (2) The appellant had stayed in Iraq for four months in both 2012 and 2013, in circumstances where he did not produce his Australian government-produced Titres de Voyage for those trips and he gave evidence about how he obtained a visa to enter Iraq which was inconsistent with Iraqi government information. (3) The appellant's evidence was unreliable, including as to his involvement in obtaining the Iraqi documents. (4) The appellant did not give a satisfactory explanation of the Iraqi documents, which (I interpolate) identified the children as Iraqi citizens and therefore as the child of an Iraqi father or mother. The documents also indicate that the children are not stateless, contrary to the appellant's claim. (5) The Iraqi documents are genuine. (6) The appellant's wife is a citizen of Iraq. Her Iraqi citizenship is inconsistent with the appellant's claim that she was stateless. 78 The finding was made notwithstanding the findings that the appellant had genuine links with Kuwait and was a documented Bidoon in Kuwait in 2007-2008. 79 Ultimately, and on a fair reading of the whole of the decision record, it was open to the FCCA judge to conclude that the AAT did consider and deal with the claims made concerning Kuwait and that an argument to the contrary lacked merit. The AAT explicitly referred to the "Kuwaiti activism claim", to his claim of mistreatment in Kuwait because he is Bidoon and to his claim that his wife was harassed and interrogated by Kuwaiti police. The AAT also stated that it had taken into account the written and oral submissions made on behalf of the appellant (para 36 of its decision record). 80 Accordingly, I do not accept that the FCCA judge erred in failing to accept that the appellant had a case that the AAT failed to consider the "Kuwaiti activism claim. 81 The FCCA judge's observation that the claims of activism were "of little moment" is apparently addressed to the alternative contention that the AAT had not given give "proper, genuine and realistic consideration" to those claims. 82 Here, the question is whether it was arguable that the AAT's references to the "Kuwaiti activism claim" revealed a failure to consider its significance and weight and thus to commit jurisdictional error. I accept that it was open to the FCCA judge to conclude that the "Kuwaiti activism claim" was not important evidence on the issue of the appellant's Iraqi citizenship, particularly in the context of the AAT's findings that the appellant had connections with Kuwait. It followed that the proposed ground of review, as expressed in the alternative, lacked merit. 83 Accordingly, I do not accept that the FCCA judge erred in finding that the proposed ground of review lacked merit.

Conclusion 84 It follows that the appeal must fail. Costs should follow the event. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.