DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1414

1. By notice of appeal filed on 5 September 2023, the appellant appeals from the decision of Judge Riley of the Federal Circuit and Family Court of Australia (Division 2): DVJ19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 755 (primary decision). The primary judge dismissed an application for judicial review of a decision made by the Immigration Assessment Authority affirming a decision of a delegate of the Minister not to grant the appellant a Safe Haven Enterprise Visa (subclass 790) under s 65 of the Migration Act 1958 (Cth).
2. The appellant claims that, as a former intelligence officer in the Iraqi Ministry of Defence involved in the arrest and imprisonment of 'Mr X' (a pseudonym), a senior member of the Mahdi Army who was released from imprisonment in early 2013, he would be at risk of serious or significant harm from Mr X upon return to Iraq as a consequence of a personal vendetta.
3. There are three grounds of appeal. However, the parties contended that there was one issue on appeal: namely, whether the Authority's conclusion that the appellant was no longer of interest to Mr X, was legally unreasonable. This is the first ground of the notice of appeal, and it pertains to the reasoning of the Authority (as distinct from the ultimate conclusion). The second and third grounds take issue, respectively, with the failure of the Authority's reasons to "respond to the claims about Mr [X]", and the failure of the Authority to consider the "personal dimension" of the appellant's claims about Mr X. These are different ways of asserting a logical disconnect between the Authority's findings, which were not disturbed on review, and the evidence said to support those findings (see Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 at [72], per Hayne, Kiefel and Bell JJ).
4. Another issue arose in the course of the hearing: namely, whether the evidence relied on for the Authority's conclusion that the appellant was no longer of interest to Mr X comprised (only) general country information or other information. If it were accepted that the Authority's conclusion was supported (also) by other information, a further issue arises as to the consequence of the Authority's reliance on general country information, which both parties accept does not independently support the Authority's conclusion.

1. The background to this matter is conveniently summarised at paragraph 2 of the primary decision.

1. As noted at paragraph 3 of the primary decision, and paragraphs 17, 18 and 21 of the Authority's decision, the Authority accepted that:

(a) the appellant was an intelligence officer in the Ministry of Defence;

(b) the appellant was involved in the investigation, arrest and imprisonment of a high-profile member of the Mahdi Army, Mr X;

(c) the appellant witnessed Mr X's arrest and testified against him in court, and was named in the military records as the relevant intelligence officer involved in Mr X's arrest and detention, such that the Mahdi Army would have been able to identify him as the intelligence officer responsible for investigating Mr X;

(d) Mr X was released from prison in early 2013;

(e) Mr X resided in the appellant's neighbourhood;

(f) on 15 March 2013, the appellant received a letter: (i) demanding that the appellant leave his job within 3 days; and (ii) containing a bullet;

(g) the appellant left his job and Iraq;

(h) the local community was advised that the appellant and his wife (who continued to live with their children in Iraq) were divorced (rumours which were circulated to protect his family);

(i) in around October 2013, members of the Mahdi Army, including Mr X, approached the appellant's brother seeking the appellant's whereabouts.

1. The Authority accepted the "detailed and entirely credible" evidence about the appellant's employment (at [16]).
2. Relevantly, the Authority did not accept (at [20]) that the letter received on 15 March 2013 was sent due to the appellant's role in the prosecution of Mr X (the letter did not refer to Mr X).

1. The primary judge found (at [30]) that the Authority based its conclusion that, as of 2019, Mr X would not be interested in seeking revenge against the appellant, on: (a) general country information that the militias in more recent times had been under government control, and that the appellant did not have the profile of a person who might be targeted; and (b) the fact that Mr X had done nothing to fulfil his vow of revenge in the years since 2013. On that basis, the primary judge concluded (at [31]) that the Authority had considered the "personal dimension" of the appellant's claim, and that the Authority's conclusion was not legally unreasonable.

1. The parties agree that the general country information could not sustain the conclusion that Mr X would not be interested in seeking revenge against the appellant. As the appellant points out, there is nothing in the general country information specifically about Mr X. In that regard, the appellant sought to draw an analogy with the error identified by Stewart J in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [84], whereby the Minister relied on a "generalised remark" in country information that did not speak to the particular situation at hand.
2. In the present case, information that former members of the Iraqi military are no longer "systematically targeted" by militias, and that current targets include categories of individuals to which the appellant does not belong (at [29]-[30] of the Authority's decision), is not relevant to the question of whether Mr X would be interested in seeking revenge against the appellant for his known role in Mr X's arrest and imprisonment. The country information speaks to the role of Mr X as a member of the Mahdi Army. It does not speak to any motivation for revenge that is personal to both Mr X and the appellant.
3. It is not evident how that information could indicate to the Authority that, several years later, the appellant would no longer be of interest to Mr X "for any reason associated with his previous employment as a military intelligence officer, including his particular involvement in the arrest and detention of [Mr X]" (at [30]).

1. The respondent contends that the Authority did not rely on general country information alone in coming to its conclusion, but also on the "passage of time" since the last threats were made to the appellant.
2. The Authority, at [31]-[32]:

(a) did not accept the appellant's contention that the words "wanted" were written on the outside wall of the appellant's house in Iraq sometime in 2018 (I take this to mean that the word was written more than once); and

(b) noted that, prior to the claimed graffiti in 2018, the last threat against the appellant was made to his brother in October 2013 (at [31]-[32]).

1. However, "these matters" in addition to the "independent [country] information" were relied upon to support the conclusion (at [32]) that the Authority was not satisfied that the "the word wanted or any other threat was painted on the [appellant's] house by members of the Mahdi Army or any other Shia militia as he has claimed", nor that the appellant's wife and children had moved to a different area due to threats being painted on the appellant's home. The Authority considered it "implausible that the Mahdi Army would wait almost five years to place graffiti on [the appellant's] home if he had remained of interest to them throughout the period as the [appellant] claimed", in addition to the evidence that no one had been living at the home since the appellant's departure in 2013.
2. Implicit in that reasoning is the finding that the appellant did not remain of interest to "members of the Mahdi Army", which by description includes Mr X. That inclusion is reinforced by the reference to the "last threat against the [appellant]" in October 2013, which the Authority acknowledged (at [21]) was perpetrated by "members of the Mahdi Army, including [Mr X]".
3. While the inferences drawn by the Authority in paragraph 32 are not necessary ones, they are not illogical. They demonstrate the view of the Authority that Mr X was no longer interested in the appellant. The question then arises as to whether that view was informed by the Authority's conclusion in relation to the country information (which I have accepted cannot rationally sustain the claim that Mr X was no longer interested in the appellant). It is difficult to escape the conclusion that the Authority considered the passage of time between 2013 and 2018 to undermine the plausibility of the claim that the graffiti was directed to the appellant and perpetrated by members of the Mahdi Army, including Mr X.
4. It is a different question as to how Mr X might react upon the appellant's return to the neighbourhood in which (it was accepted) Mr X resides. However, to engage in that enquiry is to engage with the merits of the application for judicial review, which is not the remit of this appeal. In that regard, the appellant's appeal to 'human experience' as indicating that Mr X is "unlikely to simply forgive and forget", invites error. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretionary power should be exercised for that of a decision-maker: Li at [66]; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37. 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 a decision or finding to be made on evidence upon which the decision is based: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (Crennan and Bell JJ). In my view, what Mr X is likely to do upon the appellant's return to Iraq is such a finding.
5. It is evident at paragraph 36 of the Authority's decision that the Authority relied on both "the independent (country) information and the [appellant's] particular profile" as the basis of its decision. Even if the appellant's profile were taken to be a reference to the conclusion that the appellant did not fall into one of the categories targeted by the militia, that information is not stated to be exhaustive of "the totality of the information before [the Authority]".
6. Accordingly, while the issue (whether the appellant remained of interest to Mr X) is one on which minds might differ, the difference does not stem from an error of logic, at least not in relation to the reasoning based on the passage of time: SZMDS at [78], [130].
7. Accordingly, I find that, in addition to country information, the Authority relied on anecdotal evidence from the appellant to conclude that the appellant was no longer of interest to Mr X. The Authority accepted the evidence of the threat to the appellant, including by Mr X in October 2013, but not that the risk of harm continued given the absence of threats since that time. (If the interest in the appellant was revived in 2018, the appellant did not explain why that was or would be so.)

1. The matter does not end there. The appellant contends that the Authority's error in relying on general country information to negate the "personal dimension" of the threat presented by Mr X, infects the second basis of the finding because it co-exists with the first.
2. The Authority did not accept that there was an ongoing threat to the appellant by Mr X. This was because of independent country information that the general security situation had changed. It was also because the Authority accepted that the "last threat" to the appellant was in October 2013.
3. The question is whether the latter finding is necessarily informed by the former. In my view, it is not. It was open to the Authority to find that there was no ongoing threat (from Mr X) against the appellant, not on the basis of the country information, but on the basis that the "last threat" occurred in 2013. It does not necessarily follow that a threat did not emerge (in 2018), but it is not irrational to conclude that what occurred in 2018 should not be attributed to Mr X because no threat had manifested itself in the intervening period.
4. As such, while the Authority's reasoning in relation to one aspect of its decision may be said to be irrational, that irrationality did not infect what may be viewed as a separate basis for its decision.

1. The respondent indicated at the hearing of the appeal that he did not take a materiality point in the event that the Court found the Authority's conclusion was not open.
2. In another sense, the question of materiality has been examined. The reasons above accept error as claimed by the appellant, but not the alleged consequence of that error. That is, the error found was not material to the outcome, which cannot be (and was not) said to be legally unreasonable.

1. I do not accept that the Authority's conclusion, that the appellant was no longer of interest to Mr X, was infected by legal unreasonableness. The primary judge did not err by so finding.
2. There are different ways of expressing the standard of legal reasonableness depending on the subject-matter of the decision. In this case, the appellant described the Authority's reasoning as "capricious" in the sense that the evidence relied upon was "not probative" of the question before it, being whether the appellant remained of interest to Mr X. In my view, while that may be an accurate description of that part of the Authority's reasoning that relied on general country information, it does not apply to that part of the reasoning that relied on the absence of threats by Mr X to the appellant over a period of time. That other evidence, while not compelling, is probative of the question of the threat presented to the appellant by Mr X, and is not undermined by the Authority's reliance on the independent country information.
3. While the appellant has not succeeded in the outcome, he has at least partly proven his point. Accordingly, I will invite short minutes of order by consent, or submissions from the parties as to the question of costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Younan.