FFG17 v Minister of Immigration and Citizenship [2025] FedCFamC2G 1343

1. On 29 November 2017, the Applicant commenced these proceedings for judicial review of the Authority's decision accompanied by a short affidavit of the Applicant's former solicitor.
2. On 19 December 2017, a response was filed on behalf of the First Respondent by which it was contended that the application ought be dismissed with costs.
3. On 22 February 2018, a court book was filed.
4. Just prior to hearing, on 9 October 2024, an amended application was filed for which leave was not opposed (subject to notice of certain particulars) and was granted at hearing. The Applicant also sought to rely on an outline of submissions filed on 10 October 2024.
5. The First Respondent filed written submissions on 16 October 2024.
6. On 24 October 2024, the matter proceeded to hearing before the Court as presently constituted. The Applicant and First Respondent were each represented by Counsel.

1. By the amended application, the Applicant pressed two grounds of review in the following terms:

Ground 1

The Second Respondent's (IAA's) was legally unreasonable by failing to invite the Applicant to provide further information, or to consider doing so, pursuant to s 473DC(3) of the Migration Act 1958 (Cth).

Particulars

Part A

(a) The delegate of the First Respondent (Delegate), found the Applicant was a volunteer, not an employee with the Iraq Army. It did not accept that he worked at checkpoints. It did not accept that he has a profile or was of any interest to militia groups in Iraq (RD117).

(b) In contrast, based on new information, the IAA accepted that the Applicant was a paid employee of the Iraq Army. It accepted that he worked alongside US forces as a driver and in that capacity, and while stationed at checkpoints, he had some contact with Shia and Sunni militia groups, and that he may have been identified as working with the US military (RD206[24]) (together the New Finding).

(c) As a consequence of the New Finding, the IAA questioned why he and his family were not harmed from September 2011 to when he left Iraq in January 2023, and questioned why he and his family would be subjected to threats five years after the Applicant ceased working with the Iraq Army (RD209[34]) (altogether the Question).

(d) Due to the New Finding of the IAA, the Applicant was not put on notice of the Question before the Delegate, and there was no reason for the Applicant to seek to provide information to the IAA on it.

(e) In the circumstances, it was legally unreasonable for the IAA not to exercise, or to consider exercising, the power in s 493DC to get new information, namely a response or explanation from the Applicant to the Question.

Part B

(a) The Delegate, by reference to country information, found that from about 2013, there was a significant deterioration of the security situation in Iraq, and "the country's Shia militia groups, many of which has been inactive for many years, began to refocus and remobilise....the tense security climate in Iraq from 2013..." (RD118-119, emphasis added).

(b) Unlike the Delegate, the IAA had before it new information upon which it found that the Applicant was identified as having worked with the US forces and was targeted by unknown armed militia groups (RD207[25]). It found that the Applicant was stationed at the military base in Fallujah while forking for the Iraq army. He quit his role with the army in October 2011. It found that in about November 2001 he moved to his home town of Najif and worked a self-employed taxi driver until he fled Iraq in January 2013 (RD206[21]); 207[27]) (altogether the New Finding).

(c) In contrast to the Delegate, by reference to differing country information, the IAA found that during the months living in Najaf before leaving Iraq, Shia military groups remained active in Najaf. It found that in those months, the Applicant and his family were not threatened by Shia militia groups or anyone else (RD207[27]) (altogether the Issue).

(d) Due to the New Finding of the IAA and the different finding of the Delegate in respect to the Shiia militia groups, the Applicant was not put on notice of the Issue before the Delegate, and there was no reason for the Applicant to seek to provide information to the IAA on it.

(e) In the circumstances, it was legally unreasonable for the IAA not to exercise, or to consider exercising the power in s 493DC to get new information, namely a response or explanation from the Applicant to the Issue.

(f) Further or in the alternative, the IAA relied upon a Stanford University report about a specific militia group, and was contradictory to the country information that it later relied upon, namely the UNHCR and UK Home Office Reports. The IAA erred by misconstruing the Stanford University report and failing to consider the other reports. Accordingly, the IAA was legally unreasonable.

Ground 2

The IAA erred in failing to read, identify, understand and evaluate; and to bring its mind to bear upon the Applicant's submissions and evidence.

Particulars

(a) The Applicant provided a detailed statement dated 16 August 2017 to the IAA, representing new information which was not before the Delegate, that detailed the most recent threats that his family in Iraq had received. Those threats were telephone messages, which included one in August 2017 to his wife that she must call the Applicant and push him to come back or else she will lose one of his children (altogether New Information).

(b) The IAA dismissed that New Information based on an alleged inconsistency, the IAA found it included evidence that as a result of the Aust 2017 threat, the wife decided to try and leave the country. The IAA found that this was inconsistent with the Applicant's earlier oral evidence at the Delegate interview that his wife was scared and trying to get out of the country (RD209[33]).

(c) The IAA misconstrued the evidence; there no inconsistency between the New Information and the earlier oral evidence. The New Information did not state that the wife was trying to leave the country for the first time. The New Information provided that arrangements were being made by his father for his wife and children to flee to Turkey in the next few days. This is not inconsistent with the Applicant's earlier oral evidence, in which he explained that his family were being visited in their home by armed people and his wife was being verbally abused, thus she was scared and trying to move out of the country.

(d) As a consequence of the IAA erroneously finding a non-existent inconsistency, the IAA failed to engage with the New Information. There was an absence of any understanding, evaluation or the IAA bringing its mind to bear upon the New Information.

1. The First Respondent asked the Court to find that neither ground could succeed. In summary, because:

a) In respect of the first ground, the Authority did exercise the discretion at s.473DC of the Migration Act 1958 (Cth) (Act) and its reasons revealed an evident and intelligible justification for the non-exercise of that power; and > > b) In respect of the second ground, there is no identification of jurisdictional error in the form of the complaint and the Applicant can not establish to the necessary standard that the Authority's evaluation of inconsistency was not reasonably open.

1. A "privative clause decision" as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
2. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
3. The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that "a" criteria for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

1. An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
2. Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a "fast track reviewable decision" which, relevantly, included a decision to refuse to grant a protection visa to a "fast track applicant".
3. Part 7AA of the Act was arranged in eight divisions comprising ss.473BA - 473JF.
4. Division 1 of Part 7AA commenced with a self-described "simplified outline" at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it could consider new material and could invite a referred applicant to provide, or comment on, "new information".
5. Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
6. Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so "without accepting or requesting new information" and "without interviewing the referred applicant".
7. Subdivision C of Part 7AA, most relevantly at ss.473DC and 473DD, concerned how the Authority may "get" and "consider" new information that was not before the Minister when the decision was made under s.65.
8. By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both "the decision" on review and "the reasons for the decision".

1. By the first ground, the Applicant contended that the Authority's decision was legally unreasonable in respect of its failure to invite the Applicant to provide further information, or to consider doing so, pursuant to s.473DC(3) of the Act.
2. The central issue which underpins this first ground is the Authority's finding that neither the Applicant nor his family have any profile or are of any interest to militia groups in Iraq.
3. The Applicant sought to bear out this contention by reference to two separate aspects of the Authority's decision, dealt with in turn below.

1. The authorities make it clear that there was no obligation on the Authority to "get" new information. The provision for getting new information under s.473DC is expressed in discretionary terms as distinct from mandatory ("may" not "must"). It does not constitute a duty on the Authority to get, search for, request or accept any new information that was not before the Minister in any circumstances and does not impose a general power to invite the Applicant to an interview in order to explain their claims: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ) at [72].
2. It was not controversial that the discretion conferred on the Authority by s.473DC is subject to the implied condition that it be exercised reasonably: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (Kiefel CJ, Bell, Gageler and Keane JJ) at [3] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Gageler, Keane, Nettle, Gordon and Adelman JJ) at 227. Acknowledging the caution of the High Court against use of labels such as "proper, genuine and realistic consideration" (Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) at [26]), it may be accepted that legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an "evident and intelligible justification": Minister for Immigration & Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) at [68] and [76].
3. As discussed in BIL18 v Minister for Home Affairs [2020] FCA 1367 (Wigney J) at [54], the Authority is under no obligation to exercise s.473DC in every case where the Authority is contemplating taking a different view to the delegate on certain issues:

...there is nothing in the statutory scheme in Pt 7AA of the Act to suggest that the Authority is obliged to notify a referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. It must follow that the mere fact that the Authority is considering taking a different view of the material before the delegate does not oblige the Authority to request, or consider requesting, new information from the referred applicant. The "requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review": FGC17 v Minister for Home Affairs [2019] FCA 559 at [40].

1. In a similar vein, the Authority is under no obligation to assist an applicant to make a fuller or better case by telling him that what has been provided is inadequate and asking for more information: FBR18 v Minister for Immigration and Border Protection [2019] FCA 1620 (Farrell J) at [45]. Likewise, the mere possibility that an applicant might have something useful to say that has not already been said, the Authority's failure to extend, or consider extending, to him an invitation to say it would fall short of the threshold of legal unreasonableness: BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860 (Snaden J) at [46].
2. In some circumstances, the Authority may be found to have acted unreasonably in circumstances where it has altogether failed to consider the exercise of its discretion under s.473DC: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (Robertson, Murphy and Kerr JJ) (CRY16) at [82] and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 (Robertson, Murphy and Kerr JJ) (DZU16) at [81].

1. Relevant to Part A, the Applicant sought to challenge the conclusion reached as to lack of profile of the Applicant and his family - in circumstances where the Authority had found:

(a) Contrary to the delegate's findings, that the Applicant was employed by the Iraqi army until October 2011; and

(b) That, after the Applicant quit the army, he worked as a self-employed taxi driver, which was not a factual finding that featured in the delegate's decision.

1. On review before the Authority, the Applicant had put forward the following new information which was considered by the Authority in the exercise of its discretion pursuant to s.473DC:

(a) A payslip which sought to prove that the Applicant was an employee of the Iraqi army, rather than a volunteer as found by the delegate; and

(b) A submission that the Applicant's parents in law and wife (who reside in Iraq) received calls in June and August 2017 respectively which threatened to cause harm to them or the Applicant's children if the Applicant did not return to Iraq.

1. At [27], the Authority accepted the Applicant's claims based on the new information before it (that was not before the delegate). In the critical passage, the Authority reasoned as follows:

The applicant quit his role with the Iraqi Army in October 2011 and worked a self-employed taxi driver between November 2011 and his departure from Iraq. The applicant left Iraq in early 2013, almost year and half after the above events occurred. On his evidence, he was residing in the town where his parents live, which was also in Najaf, during this time and was working as a taxi driver. Information confirms that Shia militia groups remained active in Najaf during this period. Despite having the opportunity to do so, neither the applicant nor any member of his family were threatened or harmed by Shia militias or anyone else in this period. Taking this into account, and noting that he ceased working with the Iraqi Army and the US forces in October 2011, I consider that he was not of any ongoing interest to any armed Sunni or Shia militia groups while he remained in Iraq, after he left the Iraqi Army in 2011.

(Sic.)

(Footnotes omitted)

Was the Authority unreasonable in not getting new information?

1. The contention that the Authority failed to consider whether or not to exercise its power under s.473DC ought be rejected. On the face of the reasons, it is plain that the Authority considered whether to exercise the power. Specifically, to invite the Applicant to attend an interview before the Authority: at [16] - [18]. There, the Authority provided evident and intelligible justification for the non-exercise of its power including consideration of the statutory framework, prior opportunities afforded to the Applicant to provide additional information and that the Applicant's representative had not identified any new additional information it wished the Authority to obtain, other than a general assessment of the Applicant's credibility.
2. In any event, there was no obligation on the decision maker to put the Applicant on notice of different findings it intended to make. To the contrary, the legislative scheme provided for such "fast track" reviews to be determined on the papers without seeking more information or otherwise affording orthodox measures of procedural fairness.
3. Here, the alternate view taken by the decision maker was in acceptance of the Applicant's claim to have been employed by the Iraqi army until October 2011 which arose from the new information provided to the Authority.
4. Further, the finding that the Applicant was self-employed as a taxi driver in the subsequent period until departure in 2013 also arose from the Applicant's own information provided in support of his claims.
5. The Authority's consideration of the absence of threats in the intervening period (where the first reference to such in the Applicant's materials was 2017) was a fact in existence on the information that was before the delegate below. That the delegate did not expressly articulate its consideration of this is, in my view, not persuasive as to the reasonableness of the Authority's decision - where the delegate concluded the Applicant was of no adverse interest at all. It follows that it was not unreasonable in the sense of the authorities for the Authority to proceed to determine the review without exercising the discretion to invite the Applicant to provide new information pursuant to s.473DC.
6. For completeness, this case is distinguishable from CRY16 and DZU16 in which cases the Authority failed altogether to consider whether to exercise the power at s.473DC. The circumstances do not reach the threshold of an "informational gap" where the consideration of the absence of evidence of threats after leaving the army and before departing the country was not of itself dispositive and a finding the Authority was entitled to make on the case as presented by the Applicant within the scope of the legislative framework.
7. It was a matter for the Authority to weigh the relevant information before it in deciding whether to exercise the discretion at s.473DC. It is not for this Court to revisit that consideration and replace it with a decision that it would have made.
8. For the above reasons, the Authority was entitled to arrive at the decision that it did and no jurisdictional error is made out by Part A to Ground 1.

1. Relevant to Part B, the Applicant contended that the Authority's conclusion as to an absence of adverse profile was legally unreasonable because the Authority's findings on the country information were inconsistent with the delegate's conclusion on the country information which in turn warranted the exercise of the power at s.473DC. Additionally, or in the alternative, that the Authority had misinterpreted or misapplied the country information that was before it.

Was the Authority unreasonable in not getting new information?

1. For the above reasons, the contention that the Authority failed to consider whether or not to exercise its power under s.473DC ought be rejected.
2. It was the Applicant's case that it was legally unreasonable for the Authority not to exercise its discretion under s.473DC to get new information from the Applicant in circumstances where the Authority's reasons disclose an inconsistency between findings made in the delegate's decision. Specifically, in the period between the Applicant quitting the Iraq army and leaving Iraq, the delegate found that the Shia militia was not active in Najaf, whereas the Authority at [27], found that "information confirms that Shia militia groups remained active in Najaf during this period" (alleged inconsistency).
3. In support of the above alleged inconsistency, the Applicant also sought to point to a fact which was accepted as being plausible by the Authority at [25], being that the Applicant was targeted on one occasion by unknown militia groups.
4. In arriving at the alleged inconsistency, the Authority considered the new country information which the Applicant had provided and it had considered, pursuant to s.473DD, but was not before the delegate.
5. I am inclined to accept the First Respondent's submission that the alleged inconsistency does not arise on the face of the Authority's decision as plead. The delegate made non-specific and non-exhaustive findings of (in)activity by Shia militia groups immediately prior to 2013 and that the security situation deteriorated after 2013 where the Authority was considering a substantially longer period of 2011 to 2013.
6. In any event, the Authority made the subject findings based on new information the Applicant provided following the delegate's decision which the Authority had exercised the discretion to consider. That new (country) information which the Applicant had provided to the Authority sought to establish that, prior to the Applicant's departure from Iraq in January 2013, the Shia militia remained active in Najaf.
7. Despite accepting (based on the new (country) information provided by the Applicant) that militia groups remained active in Najaf in the period that the Applicant was living there, the Authority ultimately found that because neither the Applicant nor his family were targeted during this period, he was not of any ongoing interest to militia groups: at [27].
8. As above, the Authority was not obliged to invite the Applicant to respond or provide more information in respect of its proposed findings.
9. It was not legally unreasonable, in the sense of the established authorities, for the Authority to reach the same outcome as the delegate based on alternative findings with reference to the country information.

Did the Authority misconstrue or misapply the country information before it?

1. To the extent that the Applicant complains about the weight afforded to certain aspects of the country information, that complaint ought be rejected. That the Applicant did not agree with the outcome of the Authority's assessment and can point to the availability of another conclusion or different points of emphasis in the country information is not to the point. The assessment of country information and the weight to be given to it was a matter for the Authority. A redetermination of the weight to be given is not the role of the Court on judicial review.
2. I am not otherwise able to discern a misconstruction or misapplication of the country information that was before the Authority. For the above reasons, the Authority was entitled to make the decision that it did and therefore no jurisdictional error is established in respect of Part B to Ground 1.

1. The second ground of judicial review is concerned with the Authority's failure to "bring its mind to bear" on the Applicant's submissions and evidence. More specifically, by the particulars to this ground, it was contended that the Authority had misconstrued the evidence by finding an inconsistency that did not exist.
2. The First Respondent contended that the inconsistency was a matter for the Authority to evaluate and determine and this second ground could not succeed by pointing to an insufficiency of evidence alone.

1. The Court was taken to the decision in VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 (Gray, Moore and Weinberg JJ) at [18]-[19] for the proposition that the question of whether there was an inconsistency in the evidence was a matter for the Authority to evaluate and that pointing to an insufficiency of evidence is not an established ground of review.
2. In addition, the Court was taken to the decision in Plaintiff S111/2017 v Minister for Immigration and Border Protection [2018] FCAFC 92; (2018) 263 FCR 310 (McKerracher, Perry and Charlesworth JJ) at [66] for the proposition that the Authority's decision cannot be impugned as legally unreasonable simply because it is one about which different minds might form different views.

Was there an error in the Authority's findings of inconsistency?

1. The critical paragraphs of the Authority's reasons were at [33] to [34].
2. On what the Authority had before it, I accept the First Respondent's submission that the Authority's conclusion was reasonably open to it. The Authority was entitled to have regard to the Applicant's claims of more recent threats and assess those claims against the claims made at interview. That reasonable minds might differ is not to the point on judicial review.
3. The Court is not empowered to engage in merits review. I am not able to discern an error of jurisdiction by this Ground 2 as it were plead.

1. For the above reasons, the application must be dismissed. I will order costs in the scale amount.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.