THe APPEAL
14 The appellant's notice of appeal to this Court, filed on 19 December 2018, raised the following grounds of appeal:
Grounds of Appeal
1. The primary Judge erred in concluding that the decision of the Immigration Assessment Authority was not affected by legal unreasonableness as there was a logical connection between the fact that the militia did not harm the applicant when he was in Najaf in 2004 and the Authority's conclusion that the militia had no intention of harming the appellant.
2. The primary judge should have found that there was legal unreasonableness as there was no probative basis for the finding of the Authority that the militia had no intention of harming the appellant.
15 The test for legal unreasonableness was recently summarised by the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3 (Reeves, O'Callaghan and Thawley JJ) in the following way:
61. The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [54]-[60] (Gageler J); [78]-[79] (Nettle and Gordon JJ); [135] (Edelman J). Such a conclusion might be drawn, for example, if it:
(1) is "illogical", though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);
(2) "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);
(3) is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).
16 As to what might constitute irrationality or illogicality sufficient to give rise to jurisdictional error, the Full Court in MZZGE v Minister for Home Affairs [2019] FCAFC 72 (Besanko, Farrell and Thawley JJ) at [22] stated:
A decision might be shown to be affected by jurisdictional error if:
(1) no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);
(2) there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);
(3) there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].
17 On appeal, the appellant submitted that:
(1) the finding at A[20] that "JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property" was made without probative evidence;
(2) "critical to this finding [was] its reliance upon the fact that the applicant was not harmed in the 2 days he remained in Najaf after his father was shot"; and
(3) "the assumption made by the Authority [was] that if the militia intended to harm the [appellant] then they would have done so in the 2 day period before he returned to Iran".
18 The appellant relied upon the second proposition set out in MZZGE at [22], set out above, submitting that there was a lack of logical connection between the evidence and the conclusion at A[20] that "JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property". This lack of logical connection, it was submitted, gave rise to a decision was relevantly unreasonable.
19 The Authority's conclusion at A[20], however, was not based solely on the fact that there had been no further harm to the appellant's father or family in the relevant two day period. Its conclusion was based on the whole of the material before it, including the three matters identified by the primary judge at J[15], extracted above. The context in which A[20] must be read is that the harm which had befallen the appellant's father only arose because of a second attempt by him to reclaim the family property. There was no suggestion that the appellant's father, or the appellant, had ever otherwise experienced harm from JAM.
20 The Authority stated that "there is no other evidence to indicate that the [appellant] is of current interest to JAM for any reasons": A[20]. The fact that "nothing else happened to [the appellant] or his family in Iraq", and that "the [appellant] has not experienced past harm from JAM", supports the conclusion that the appellant and his family would not face a real risk of harm if they did not attempt to reclaim the property as the appellant's father had in 2004.
21 The primary judge concluded that the fact that nothing else happened to the appellant or his family in the period between the attack on the appellant's father and when the family left Iraq again 2 days later was not particularly strong evidence that JAM did not have any intention of harming the appellant or his family absent an attempt to reclaim the property, but that it could nonetheless be considered probative by a decision-maker acting reasonably and rationally: J[15], [16]. That conclusion was correct.
22 The Authority's use of the fact that there had been no further harm carried out by JAM on any member of the appellant's family in the two days after the attack on his father was capable (in the sense of not being irrational or illogical) of supporting the Authority's conclusion that "JAM had no intention to carry out any threats or to harm the [appellant] or his family unless they [sought] to regain the property", even if that fact would not have been used in that way by another decision-maker - see: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]-[135]. A different decision-maker may well not have regarded this fact as particularly significant or significant at all. However, that is not the legal issue. It was not unreasonable or irrational such as to constitute jurisdictional error to use that fact as one reason for the ultimate conclusion that the appellant did not face a real chance of harm.
23 It was open to the Authority to reach the conclusions it did given that the 2004 incident was the only occasion where a member of the appellant's family had been harmed by JAM and that the incident occurred on the second occasion that the appellant's father sought to reclaim the property.
24 The appellant contended, as he did before the Federal Circuit Court, that although the Authority found that the appellant had no genuine intention of trying to reclaim the property (A[18] and [19]), "there was no finding that the militia knew this and there was no apparent reason why they would know". The appellant submitted that his father is now dead and he is a male heir; the militia do not know if he will try and reclaim possession of the property. That fact does not make the Authority's reasoning legally unreasonable or illogical. The Authority's reasoning was that absent an actual attempt to reclaim the property the appellant would not be harmed. The Authority did not conclude that the mere presence of the appellant in Iraq would expose him to the possibility of harm, even absent an attempt to reclaim the property, for example because JAM might consider the appellant intended to reclaim the property.
25 When regard is had to the way in which the claims were made, there was no jurisdictional error in the absence from the Authority's reasons of a finding that the militia did not know the appellant had no intention of trying to regain the property. Harm only befell the appellant's father when he sought to reclaim the property. The appellant did not claim that he would suffer harm simply by virtue of coming to the attention of the militia on his return should they still be in possession of the property or for some other reason. His claim was made in this way in his statement:
12. Generally, the family home is passed down to the males of each family …
33. I also believe that the threat from the militia if I attempt to reclaim my family land will grow in severity if I return ...
26 As noted earlier, the Authority concluded that the appellant did not in fact have any genuine desire to reclaim the property and, accordingly, would not attempt to do so: A[18] and [19]. Those findings were not challenged on appeal.