LEGAL UNREASONABLENESS
32 The decision reviewed by the primary judge involved two steps. First, the Tribunal made a decision under s 108 of the Act that the appellant had not complied with s 101 in the manner that had been particularised in the Notice issued under s 107. Second, the Tribunal determined that the visa should be cancelled in the exercise of the discretion conferred by s 109. On its proper construction, the power conferred under s 109 is preconditioned by the existence of a decision under s 108 that has been lawfully made. Material error affecting the legality of the decision under s 108 necessarily goes to jurisdiction in the exercise of the cancellation power.
33 As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]), for an administrative decision to be categorised as legally unreasonable, the decision must be evaluated and a conclusion reached as to whether it:
… has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …
34 In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, the Full Court said that the process of reviewing a decision on the ground of legal unreasonableness "will inevitably be fact dependent". The Court continued (at [48]):
… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as 'intelligible justification' must involve scrutiny of the factual circumstances in which the power comes to be exercised.
35 And as Nettle and Gordon JJ said in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [84]:
… legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
36 The task of a court exercising powers on judicial review is to not to supplant the decision-maker's view as to the most objectively reasonable outcome with that of its own: Stretton (at [21]). That statement of principle applies equally to a decision-maker's findings of fact as it does to a decision-maker's evaluative functions and discretionary powers.
37 Examination of a decision for legal unreasonableness must otherwise proceed from a correct understanding of the decision-maker's task. It is for that reason that I have considered the issues raised in the first and second grounds of appeal to be subsumed in the broader issue raised in the third.
38 A decision under s 108 of the Act does not involve the exercise of a discretion in the strict sense. Rather, s 108 calls for a conclusion to be made on a mixed question of fact and law. Questions of law arise as to the proper construction of s 101 and s 108. Questions of fact arise as to whether the affected person has not complied with s 101 in the manner specified in the Notice. The fact finding task is necessarily evaluative in the sense that there may be a range of permissible conclusions reached in response to the same evidentiary materials.
39 Section 108 of the Act does not authorise the Minister to decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107. On this appeal, there is no contention that the Notice did not comply with s 107 of the Act. Nor was there a contention that the Authority determined that there was non-compliance in some manner other than that specified in the Notice given to the appellant. A ground of review alleging a breach by the Tribunal of the rules of procedural fairness at first instance was abandoned. It was not sought to be re-agitated on the appeal.
40 The appellant submits that whilst the particulars of the alleged non-compliance are to be described in the Notice, the range of materials available to the decision-maker is not restricted to the responses of the appellant. Subject to the decision-maker observing the rules of procedural fairness, that is undoubtedly correct. It may also be accepted that a decision made under s 108 may be affected by jurisdictional error if the decision-maker fails to have regard to a relevant consideration in a way that materially affects the outcome: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ); Craig v South Australia (1995) 184 CLR 163 at [12] (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
41 However, there is nothing to suggest that the primary judge misunderstood the task of the Tribunal in the manner alleged in the first particular. The reasons of the primary judge contain no express or implicit conclusion that the Tribunal was obliged to confine itself only to that evidentiary material referred to in the Notice and the appellant's evidence given in response to it. The primary judge otherwise proceeded from the correct premise that the task under s 108 was confined to determining whether there had been non-compliance with s 101 in the manner specified in the Notice, and in no other manner. The manner of non-compliance specified in this particular case was the giving of incorrect answers in response to questions 42, 43, 45 and 46 of the visa application form.
42 It was submitted that the Tribunal's task was concerned solely with the correctness of the appellant's answers in relation to objective facts. It was not permissible, Counsel submitted, for the Tribunal to enquire into the correctness of the appellant's statements as to his state of mind. That limitation on the power was said to be a consequence of s 100 of the Act. It provides:
Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
43 On its proper construction, s 100 of the Act does not preclude an enquiry being undertaken into whether the appellant in fact had the state of mind he professed to have in 2012. Rather, its purpose is to make it clear that a person may provide an incorrect answer and so fail to comply with s 101 of the Act without having any subjective intention to be incorrect or untruthful. In cases where a person has unwittingly given an incorrect answer in support of his or her visa application, that circumstance would not prevent a finding of non-compliance. The circumstance that the person did not intended to give incorrect information would of course be relevant (and in some cases definitive) on the exercise of the discretion as to whether the visa should be cancelled under s 109 of the Act.
44 In the present case, the Notice issued to the appellant alleged that incorrect answers had been given as to matters affecting both his subjective state of mind, that is, his stated fear of persecution, and the objective basis for the fear. As explained in Chan, both questions were essential to his claim to be a refugee.
45 Next, it was submitted that it was impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time. Whether or not later events are logically capable of bearing on the correctness of answers given at an earlier time will depend in all cases on the subject matter of the enquiry, especially the nature and timing of the subsequent events. Here, the Tribunal had regard to two trips made by the appellant to Iraq occurring 16 and 26 months after the grant of the visa respectively. The two trips were assessed against the responses the appellant had given as to the reason for his feared harm, the places in Iraq where he had claimed that he was most at risk, and his statements as to the degree of the risk of harm as he subjectively perceived it to be. That the appellant had travelled to Iraq in the subsequent periods and stayed on each occasion for three months was plainly relevant to the enquiry as to whether the stated fear in 2012 existed at that earlier time, as were his stated reasons for travelling. That is so because the claimed fear was asserted to be the reason why the appellant was unwilling to return to his home country. The circumstance that the appellant had voluntarily travelled to Iraq in 2014 and 2015 was clearly relevant to ascertain whether the earlier unwillingness existed at the time it was claimed.
46 Next, it was submitted that the veracity of the appellant's answers fell to be considered against all of the relevant circumstances, which included the fact that the appellant was a person who had been determined in 2012 to have the profile of a person who was at objective risk of harm. That determination had been made on the basis of the appellant's personal characteristic as a former member of the Iraqi Army who had assisted Coalition forces, and an assessment of those circumstances against the large body of country information to which the original decision-maker referred when determining to grant the visa. The country information showed that persons having the appellant's characteristics were exposed to a real chance of persecution for a Convention reason, assessed objectively. All of these contentions are accepted.
47 The appellant further submitted that the Tribunal had not had regard to that country information as it existed in 2012 in making its decision under s 108 of the Act. I do not accept that submission. The Tribunal's reasons disclose an awareness of the security situation as it had previously existed in Iraq and an appreciation that the appellant was found in 2012 to have an objectively well-founded fear. The reasons of the delegate who had granted the visa in 2012 were before the Tribunal, and they contained a thorough examination of the country information reports.
48 It remains to consider the submission that the Tribunal's decision was affected by legal unreasonableness in the sense I have described above. Before the primary judge, it was submitted that the Tribunal had illogically concluded that the two trips of three months duration evidenced the appellant did not fear persecution in 2012, especially in light of its remarks that had the trips been shorter, it may have concluded differently.
49 The primary judge rejected that argument for the reasons extracted at [25] above. There is no appealable error in that reasoning. The primary judge went on to identify an evident and intelligible basis for the Tribunal's conclusion. His Honour did so at some length and in terms that I now respectfully adopt as the most convenient means of explaining why the third ground of appeal must fail:
80. In this particular matter, the Tribunal was required to make a judgement in respect of the exactitude of answers provided by the applicant, in support of his successful application for a protection visa, in the context of what could be deduced from his subsequent behaviour in returning to Iraq.
81. The Tribunal concluded that the original claims of risk must have been exaggerated to such a degree that they were liable to be characterised as being incorrect in nature because otherwise the applicant would not have returned to Najaf for such a lengthy period of time.
82. The reasons of the Tribunal are lengthy. The Tribunal made reference to favourable and non-favourable aspects of the applicant's case. It was aware he had assumed a false name. It did consider the reasons provided by the applicant as to why he had returned to Iraq and the length of each visit concerned. As such, it did evaluate the applicant's case. In Gageler J's terminology, in my view, the decision of the AAT did fall within a logically defensible range.
83. I concede that another decision-maker may have given different weight to other factors raised by the applicant, such as the care he took on his return to Najaf and so that theoretically alternative decision-maker could have logically concluded that the applicant had taken appropriate steps to counteract the risk to which he was subject, which did not therefore result in the factual negation of the degree of risk, as he had characterised it in 2012, namely 99.9%.
84. However, I am dealing with the actual decision-maker not a theoretical one. In my view, there is a defensible thread of logic which passes through the reasons of the AAT in this case. The Tribunal did not accept, given the extraordinary level of risk, detailed by the applicant in 2012, that he would have returned to Iraq, in the manner and for the length in which he did, in 2014 and 2015, if that original assessment of risk provided by him had been true.
85. In 2012, in assessing the applicant's claim for a protection visa, the ministerial delegate was required to assess the subjective level of the applicant's fear that he would be subject to persecution if he returned to Iraq. In this context, the actions of the applicant in returning to Iraq are liable to assume relevance in the subsequent assessment of the veracity or otherwise of his statement of the level of his subjective fears, as they pertained to his safety in Iraq and Najaf in particular. His subjective assessment of this risk was extreme.
86. The tenor of the applicant's original position was that he was well known to extremist militia groups operating in Najaf, who knew both his name and what he looked like. As a consequence, he was liable to summary execution because it was well known, in Najaf, that he was a person who had been actively associated with the US Army.
87. The Tribunal did not accept a person, subject to such a degree of risk, would expose himself to it willingly, for an extended period of time. That the applicant apparently had done so, albeit with some prophylactic precautions, necessarily rendered his original statements regarding the degree of risk fallacious.
88. In my view, this was the issue that the Tribunal was required to assess, which it did. As such, in my view, it completed the jurisdictional task delegated to it both legally and reasonably. That another decision-maker, in theoretical terms, might conceivably have reached a different conclusion, by placing greater weight on other aspects of the applicant's case, does not render the decision irrational or an abuse of the statutory power.
50 That analysis is an orthodox application of the principles to be applied on an application for judicial review involving allegations of unreasonableness affecting findings of fact. As the primary judge emphasised, a different decision-maker may well have placed more weight on factors favourable to the appellant, including the 2012 country information, and so determined that the appellant's answers on this application form were correct at the relevant time, but that was not the only permissible outcome. There is no appealable error of the kind alleged in the third ground of appeal.
51 Of course, a person who claims to be unwilling to return to his or her own country because of a fear of being persecuted will not be proven incorrect merely because the security situation for that person in their home country changes at some point in time after a visa is granted. The question for the decision-maker must always be whether the visa applicant's answers were correct at the time that they were given. It is true that in the present case, the security situation in Iraq had indeed changed after the appellant was granted the visa. Critically, however, that change in the security situation was not advanced by the appellant as the reason why he had travelled to Iraq in 2014 and 2015. The appellant did not explain the trips by saying that his earlier truthfully stated fears had since dissipated.
52 It is for that reason that leave will not be granted to introduce the fourth ground of appeal. The legal argument underlying the ground does not arise for consideration on the indisputable facts of the appellant's case. Whatever be the explanation for not advancing the ground in the proceedings at first instance, the ground enjoys insufficient prospects of success to warrant any further consideration on this appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; ATD18 v Minister for Home Affairs [2020] FCA 593 at [33] - [35]. In support of the application for leave, Counsel for the appellant submitted that the question of whether the appellant had given incorrect answers in his visa application form was a jurisdictional fact and that, as a consequence, the primary judge was not confined to the grounds and arguments raised by the parties in relation to it. The primary judge was free, Counsel submitted, to interpret s 101 as he saw fit and so was not confined to any interpretation favoured by parties. Counsel referred to Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors [2002] NSWSC 552 at [33] (Bell J, as her Honour then was); Coleman v Power (2004) 220 CLR 1 at [243] (Kirby J); Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [64] and Corporation of the City of Enfield v Development Assessment Commission (2000)199 CLR 135. Counsel submitted that the primary judge could and should have found the errors alleged in the notice of appeal (including the error alleged in the fourth ground) of his own volition and that the failure to do so amounted to an appealable error.
53 It is not necessary to express a view as to the correctness of these submissions. Leave was not required in relation to the first and second grounds and, as I have said, the fourth ground was founded on a factual proposition that did not exist in the appellant's case. There is no factual foundation to suggest that the primary judge could and should have identified the jurisdictional error there asserted of his own volition. Consideration of the legal questions raised by Counsel's submissions may be deferred to a case where the outcome depends upon it.
54 I will hear the parties as to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.