FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The parties' submissions 30 The primary submissions made by the parties are summarised and addressed in my reasons below.

Consideration and determination 31 I will address each of the three grounds of appeal in turn.

Ground 1 32 Ground 1 relates to the FCCA's rejection of the claim that it was legally unreasonable for the IAA not to exercise its power under s 473DC(3). As noted above, ground 1 of the judicial review application was expressed in terms of a failure to exercise the power, but it appears that the primary judge dealt with it as a complaint of a failure to consider exercising the power (see [31] and [33]-[35] of the primary judge's reasons for judgment). As mentioned, the appellant was directed to file and serve an amended notice of appeal so as to make clear in ground 1 that he challenged the primary judge's findings concerning the failure to consider exercising the power. 33 As matters transpired, the focus of the appellant's argument was very much on the failure to consider exercising the power, as opposed to the failure to exercise the power. The relevant principles on the former issue are authoritatively established in the plurality judgment in DPI17. At the outset, it is important to note that the relevant principles should be applied by reference to the particular facts and circumstances of the case and not by a superficial comparison with other cases. 34 The Minister's submission that DPI17 does not represent any distinct or new issue of principle was not contested by the appellant and it should be accepted. At [39] of DPI17, the plurality emphasised that the mere failure to consider the exercise of the s 473DC(3) power is insufficient of itself to give rise to jurisdictional error. Close attention must be paid to the particular facts and circumstances in which the issue of legal unreasonableness is raised, as was emphasised by the plurality at [42]. 35 The reasons why the plurality held in DPI17 that the failure to consider whether or not to exercise the power under s 473DC in the particular circumstances of that case in relation to the two relevant matters are set out at [46] and [47] respectively: 46. As to the sexual assaults: (1) It would have been evident to the IAA from the extracts from the transcript of the appellant's interview with the delegate (see [14] above) that the delegate's acceptance of the appellant's claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate's assessment of the appellant's demeanour and credibility when this matter was discussed in the course of the interview with the delegate. (2) The IAA must have been aware of the delegate's positive assessment of the appellant's demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview. (3) In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC. (4) As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness's evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA's reasons for its adverse finding on the appellant's credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant's evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA's decision record were viewed as undermining the appellant's credibility. That adverse finding then flowed through to the IAA's rejection in [36] of its decision record of the appellant's claims to have been the victim of sexual assault. (5) For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate's separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies. 47. As to the relevant inconsistencies: (1) Although it is true that, during the course of the appellant's interview with the delegate, the issue arose of inconsistencies between what was stated in the statutory declaration dated 23 September 2013 and other evidence given by the appellant, the delegate explicitly stated that the "discrepancies aren't major" and she would not put "a lot of weight on those discrepancies" because, on the whole, she viewed the appellant's evidence as being consistent. (2) Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post-interview submissions. According to what the delegate said at the end of the interview, she viewed the relevant inconsistencies as inconsequential and they did not figure in the delegate's reasons for refusing to grant the appellant a SHEV. (3) It is also relevant that the transcript of interview indicates that the appellant's migration agent raised with the delegate the issue of inconsistencies and indicated to the delegate that these inconsistencies may be attributable to the fact that the agent did not have access to all the appellant's prior statements, potentially leading to some misunderstanding. (4) It was open to the IAA to take a different view as to the significance of the relevant inconsistencies (bearing in mind the nature of the IAA's review function), but in view of the matters described immediately above, the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any "new information" relating to the relevant inconsistencies, whether at an interview or otherwise. There is nothing to suggest that the IAA turned its mind to this requirement. In the particular circumstances, it was legally unreasonable for it not to do so. 36 A critical issue in DPI17 was the delegate's assessment of the appellant's claim that he had been tortured and sexually abused and that this assessment was primarily based on the delegate's positive assessment of the appellant's demeanour and credibility. Thus, if the IAA was to take a different view on the critical issue, there needed to be sufficient independent supporting evidence if the IAA adopted that course without first at least considering whether it should exercise its powers under s 473DC(3) to obtain new information on that issue. 37 Another significant feature in DPI17 concerns the inconsistencies between the appellant's statutory declaration and other evidence given by him. It was not simply a case of different decision-makers taking a different view as to the significance of the inconsistencies. Rather, it was important in DPI17 that the delegate had explicitly stated at the end of the SHEV interview that, in her view, the inconsistencies were not "major" and that she generally viewed the appellant's evidence as being consistent. It was this assurance given by the delegate which presumably influenced the appellant in not addressing the issue of inconsistencies in his post-interview submissions. 38 In oral address in the present appeal, the appellant's counsel pointed to the following two matters as supporting his contention that the IAA's failure to consider exercising the power under s 473DC(3) was legally unreasonable: (a) the central importance of the issues of the appellant's employment with the security company and the shooting incident; and (b) the delegate found some aspects of the appellant's evidence to be credible (relying on the delegate's statement that the appellant "has been quite detailed about his work and the attempt to shoot and kill him on 14 February 2013"). 39 I do not accept that either of these matters supports the appellant's case on legal unreasonableness. They add little if anything to the proposition that the IAA reached different findings on various matters to those of the delegate, as the IAA was entitled to do. Something more than that is required to establish that it was legally unreasonable for the IAA not to consider exercising its powers under s 473DC(3). Some relevant feature of the particular case is required to show a reason why the IAA has to consider exercising its power to get new information in order for the IAA to discharge its review function under Pt 7AA. The appellant has not identified any aspect of the delegate's reasoning which indicates that the IAA was disadvantaged in comparison with the delegate (such as reliance on demeanour) which suggests that it was legally unreasonable for the IAA to depart from the delegate's findings without first considering the exercise of its power under s 473DC(3) to ensure it was not deprived of relevant information or evidence (see eg ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [19]-[24] per Bromberg J). 40 As explained earlier, in DPI17 the relevant feature was that the delegate's credibility findings were based on the applicant's demeanour at the SHEV interview. The fact that the delegate made a finding here based on the detailed nature of the answers given by the appellant at interview is not to the point. The IAA was able to examine those answers (and the detail in them) for itself and reach its own view on the weight to be afforded to them. 41 It is unwise and inappropriate to seek to define exhaustively what features of a case will require consideration of the power to obtain new information under s 473DC(3). DPI17 and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 provide some general guidance but those decisions reflect their particular facts and circumstances (which are quite different from those here). The determination of whether or not a particular feature or matter is sufficient to require the IAA to consider the exercise of its powers under s 473DC needs also to be approached against the background of the "primary rule" reflected in s 473DC(2), namely that the IAA does not have a duty to get, request or accept, any new information. 42 In his outline of written submissions, the appellant summarised the IAA's reasons for finding that he was not employed by the security company and also why the IAA disagreed with the delegate and found that the shooting incident had not occurred. Those matters were elaborated upon in oral address. The appellant submitted that the IAA's "failure to invite [him] to comment on its concerns was material" and that if he had been given the opportunity, he "may have provided further information which would have allayed the IAA's concerns". To the extent that this submission is directed to the appellant's complaint of legal unreasonableness in its failure either to consider, or to exercise, its power under s 473DC(3) it advances that case no further. Without doubt the IAA is vested with a power under that provision but it has to be viewed in the context of the limited nature of the review process under Pt 7AA (of which it forms part), the limited nature of that review process and the significance of the statutory statement in s 473DC(2). To the extent that the appellant's contention implicitly relies upon the natural justice hearing rule, it sits uncomfortably with s 473DA(1) of the Act and the meaning and effect of that provision in cases such as DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59]-[63] and [65] per Barker J and DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [69]. [74], [75] and [78] per Robertson, Murphy and Kerr JJ. 43 In effect, the appellant's submissions boil down to a complaint that it was unreasonable for the IAA to make factual findings different to the delegate without first considering the exercise of its powers under s 473DC(3). That is insufficient to establish that failure to consider exercise of the power was legally unreasonable (DGZ16 [72]-[76] per Reeves, Robertson and Rangiah JJ). 44 For these reasons, ground 1 is rejected. 45 It is to be noted that in neither this nor any other of his grounds of appeal, does the appellant challenge the adequacy in law of the primary judge's reasons for rejecting his judicial review claims. This was confirmed by the appellant's counsel in oral address. Nothing that I have said above should be read as implying that the primary judge's reasons were in fact adequate in law having regard to relevant authorities such as DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [46]-[48] per Kenny, Kerr and Perry JJ and BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [25]-[26] per Perram, Perry and O'Callaghan JJ. 46 The primary judge seemed to have assumed that as long as the IAA's reasons on a particular matter are "logical and rational" there can be no jurisdictional error because it cannot be said that there is lacking "an evident and intelligible justification" for the finding or decision. This concept is evident in the reasons for judgment at [34]-[35] (ground 1) and at [40], [43] and [46] (ground 3). 47 The source of the phrase "evident and intelligible justification" is to be found in what Hayne, Kiefel and Bell JJ said in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] where, in the context of a discussion of "unreasonableness", their Honours said (footnote omitted, emphasis added): 76. As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 48 This passage occurs in the context of a broad discussion, starting at [63], of the basis upon which and when an exercise of a statutory discretionary power is unreasonable. In Li the plurality stated at [66] that the concept of "legal reasonableness" reflects the area within which a decision-maker has a genuinely free discretion in exercising a statutory power. The Court then explained how the standard of legal unreasonableness is to be applied and that it is "the standard indicated by the true construction of the statute" and that the necessity to construe the statute is because "the question to which the standard of reasonableness is addressed is whether the statutory power has been abused" (at [67]). Importantly, at [68] the plurality stated that the standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not a bizarre decision (i.e. one so unreasonable no reasonable person could have arrived at it) (at [68]). The plurality at [68] noted that the concept of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) has been criticised for "circularity and vagueness". Their Honours made clear at [68] and [71] that the legal standard of reasonableness is not limited "to what is in effect an irrational, if not bizarre decision". That standard includes circumstances where a decision-maker has misdirected itself as to the operation of the statute, taking into account irrelevant considerations or failed to take into account relevant considerations (at [71]). These are described as "more specific errors in decision-making" and which "may also be seen as encompassed by unreasonableness" [72]. 49 At [72] in Li, the plurality said that whether, by reference to the scope and purpose of the statute, a decision-maker has committed "a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case that the decision-maker has been unreasonable in a legal sense" (at [72]). This is important. The plurality affirmed that legal unreasonableness may arise and involve jurisdictional error not only where the decision-maker has reasoned illogically or irrationally, but in other circumstances as well, such as a particular error in reasoning or giving disproportionate weight to some factor. Likewise at [74], the plurality said that an "obviously disproportionate response is one part by which a conclusion of unreasonableness may be reached", which again need not necessarily involve illogical or irrational reasoning. 50 For all these reasons, what is said in the final sentence of the plurality's judgment in Li at [76] as to unreasonableness being a conclusion which may be applied to a decision which lacks an evident and intelligible justification is not intended to be an exhaustive statement of the scope of legal unreasonableness. Yet the primary judge appeared to consider that it did because his reasoning was to ask whether or not there was a logical and rational explanation for a particular finding or decision by the IAA, and if there was, no jurisdictional error was made out. This grossly oversimplifies the proper approach. 51 Indeed, it can be said that if the primary judge's approach had been applied in Li itself, Ms Li would not have succeeded. That is because the plurality did not limit itself to the question whether the AAT's reasons for refusing the adjournment were logical and rational, as is reflected at [85] of Li (footnote omitted): 85. The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction. 52 In addition, as has been pointed out by the Full Court in DAO16 and BZD17, statements such as those made by the primary judge here that: (a) the IAA's reasons are "logical and rational" and there is not lacking "an evident and intelligible justification"; and (b) particular findings were "logical and rational" and "open" to be made, without more, are expressed at such a high level of generality that the basis for the conclusions is not exposed. As the Full Court stated in BZD17 at [24], it is "incumbent on the primary judge properly to consider whether or not those grounds [of judicial review] were made out and to give reasons as an incident of the judicial process...". It is insufficient merely to assert conclusions without exposing for analysis the underlying basis for arriving at those conclusions. As French CJ and Kiefel J stated in Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54] to [59] and as French CJ stated in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [67], the requirement for a Court to give reasoned decisions is a defining and essential characteristic under the Constitution.

Ground 2 53 This ground is to the effect that the IAA committed jurisdictional error by not considering or properly considering the appellant's evidence, given at various stages of the SHEV application process, concerning the shooting incident when it concluded at [26] of its reasons that, in contrast with the delegate, it did not accept that the shooting incident had occurred. The appellant contended that his evidence that he had been shot at by unknown masked militia was overlooked and amounted to jurisdictional error. He pointed to the fact that his claim that he had been shot at by unknown masked militia was made during his entry interview in April 2013, in his statutory declaration dated 17 June 2016 and in his SHEV interview, which the delegate described as "quite detailed". 54 The difficulty with this ground of appeal is that it is plain that the IAA did address and consider the appellant's evidence regarding the shooting incident. For example, in [16] to [26] of its reasons for decision there is a detailed consideration by the IAA of the alleged incident. Merely because the IAA did not refer to every piece of evidence given by the appellant as to the shooting incident is not determinative. The IAA took a different view to that of the delegate in respect of the appellant's evidence and there is no reason to doubt the veracity of the IAA's statement at [26], where explicit reference is made to "[H]aving regard to the evidence before me… and the issues discussed in relation to the applicant's evidence". 55 It was also open to the IAA to take into account its adverse finding concerning the appellant's employment in rejecting his account of the shooting incident, along with the other matters it relied upon in coming to that conclusion. As the Minister correctly pointed out, the appellant's claim for protection was never expressed by reference to him having been the subject of random sectarian violence. As was made clear in his statutory declaration in support of his SHEV application, the appellant claimed that he was targeted by reason of his alleged employment with the security company. That was the claim which was considered and rejected by the IAA for the reasons it gave. 56 I do not consider that the Full Court's decision in Singh v Minister for Home Affairs [2019] FCAFC 3 lends any support to the appellant's case. Indeed, if anything, it is to the contrary. The Full Court observed there at [36] that the general principle that a decision-maker must engage in an active intellectual process with matters which it is bound by statute to consider or a claim or contention clearly raised by the applicant or evidence does not require the decision-maker to refer in his or her reasons to every piece of evidence or every contention made (referring to Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 353 at [45] per Griffiths, White and Bromwich JJ). Moreover, I do not consider that this is a case where the appellant has established that the IAA failed to consider a critical piece of evidence or a particular issue. On the contrary, the comprehensive nature of the IAA's reasons for decision strongly indicate that the appellant's claims were considered, together with the relevant surrounding evidence, but the IAA came to a different view to the delegate, which it was entitled to do. Finally, merely because the IAA at [4] of its reasons for decision summarised the appellant's account of the shooting incident in his statutory declaration dated 17 June 2016 does not of itself establish that the IAA failed to give proper and genuine consideration to his evidence. Acceptance of the appellant's contention would effectively mean that the IAA, in conducting a review under Pt 7AA of the Act, is obliged to set out in its entirety and/or address all of the evidence provided by the referral applicant. Nothing in Pt 7AA imposes any such obligation.

Ground 3 57 Although originally this ground had three elements, the appellant did not press the first and third elements after the Court indicated that it would refuse leave to adduce the fresh evidence in the form of the full transcript of the delegate's interview with the appellant. The only element of ground 3 which was pressed is a complaint that the IAA's reasoning process as to why it accepted some, but rejected other, parts of the appellant's evidence relating to the issue of relocation to Karbala was illogical or irrational. 58 It is well to start with some general remarks concerning claims of "illogical or irrational" reasoning. Considerable caution needs to be exercised in applying those concepts in judicial review of administrative action. As the plurality observed in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [34] it "has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it". The following observations of the Full Court in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] are also apposite: Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, "extreme" illogicality or irrationality must be shown "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal" (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children's Guardian [2015] NSWSC 523 at [113] and the cases referred to therein). 59 I do not accept the appellant's contention that it was irrational for the IAA to accept part of the appellant's evidence but reject other parts. The mere fact the IAA accepted some of the appellant's evidence does not mean it was irrational not to accept all of his evidence in the particular circumstances of this matter. It was not illogical or irrational for the IAA to reject the appellant's kidnapping claim having regard to the circumstances in which that claim was first raised, namely only in response to the delegate's reference to the possibility of the appellant relocating to a different part of Iraq. The appellant was represented by a migration agent during the course of his SHEV interview and, given the seriousness and potential significance of the appellant's brother-in-law having been kidnapped, it is not irrational or illogical to attach significance to the fact that the claim was made only belatedly by the appellant and in response to the delegate's questioning of him late in the SHEV interview. 60 Nor do I accept that there was any form of conceptual disconformity in the IAA accepting, on the one hand, that the appellant's sister and brother-in-law lived in Karbala yet, on the other hand, not being satisfied that the brother-in-law had been kidnapped. The inferential reasoning and findings implicit in the IAA's acceptance of that part of the appellant's evidence which it accepted are not inconsistent with the IAA's rejection of parts of the appellant's evidence which it rejected. This is not a case of the IAA selectively ignoring evidence. Rather, some parts of the evidence was accepted while others were not. As the Minister put it, this is "the quintessence" of an administrative decision-maker's function. 61 That is not to say that the primary judge's reasons for dismissing ground 3 of the judicial review application were adequate in law by reference to the general principles outlined above. But the adequacy of those reasons was not challenged in the notice of appeal. 62 Finally, and for completeness, just as it is well settled that the characterisation of somebody's reasoning "as illogical or unreasonable" may simply be an emphatic way of expressing disagreement with it (see Li at [30] per French CJ, referring to Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] per Gleeson CJ and McHugh J), an approach (of the kind adopted by the primary judge here) which involves unelaborated assertions that a decision-maker's reasons are "logical and rational" may be an emphatic way of expressing agreement with the merits of the decision, which is not the task of judicial review.

Conclusion 63 For these reasons, the interlocutory application to adduce fresh evidence will be dismissed, as will the appeal. The appellant must pay the first respondent's costs of the proceeding, as agreed or taxed. The name of the first respondent should be changed to reflect current administrative arrangements. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.