Bir17 v Minister for Immigration

[2019] FCCA 155

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIR17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 155

Catchwords:
MIGRATION – Application for remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision made by the Immigration Assessment Authority (Authority) affirming decision of a delegate not to grant Temporary Protection visa – whether Authority made a finding on the basis of no evidence – whether Authority ignored relevant evidence – whether Authority relied on information given by applicant during entry interview without taking into account circumstances of entry interview – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth), Schedule 1

Migration Act 1958 (Cth), s.5AA, 476.

Cases cited:

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

Applicant: BIR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 954 of 2017

Judgment of: Judge Manousaridis

Hearing date: 23 January 2019

Date of Last Submission: 23 January 2019

Delivered at: Sydney

Delivered on: 31 January 2019

REPRESENTATION

Counsel for the Applicant: Mr A d’Arville

Solicitors for the Applicant: Wotton & Kearney Lawyers

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 954 of 2017

BIR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Iraq, seeks judicial review of a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD Subclass 785) visa (TPV).

Background

1. The applicant travelled to Australia by boat, reaching Christmas Island on 22 January 2013. The applicant, therefore, is an “unauthorised maritime arrival” as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Act).

2. The applicant applied for a TPV on 15 February 2016. On 20 January 2017 a delegate of the Minister refused the application. On 27 January 2017 the matter was referred to the IAA. On 9 March 2017 the IAA affirmed the delegate’s decision not to grant the applicant a TPV.

Claims for Protection

1. There were three occasions on which the applicant provided information that is relevant to his claims for protection. The first was during an interview on 28 January 2013 (Entry Interview). The interview was recorded, and there is in evidence before me a transcript of that interview.[1] There is also in evidence a document titled “Irregular Maritime Arrival Entry Interview”.[2] The document contains a number of questions and the applicant’s responses to those questions. Relevant to the issues in this proceeding is the answers the applicant is recorded as having given to the following questions.

   [1] Affidavit of B H J Zhao, pages 28-47

   [2] CB2-19

   Q: In one or two sentences, briefly tell me why you left Iraq.

   A: I got threatened.

   Q: Who threatened you?

   A: A person. His name is [H].

   Q: Why did [H] threaten you?

   A: I have a butcher shop and he has a butcher shop, he was competing with me and I was doing very well because I’ve done well with the business, and he envied me.

   Q: Why didn’t you go to another area of Iraq?

   A: I couldn’t go inside Iraq, there wasn’t a way to go to Syria the whole country was damaged and it’s not safe.

2. Also revenant is question 7: “Were there any armed groups, political groups, or religious groups operating in the area you lived?” The question required a “yes” or “no” answer, and the applicant answered: “no”.

3. The second occasion on which the applicant provided information relevant to his claims for protection is when he applied for a TPV. His application was supported by a statutory declaration made on 12 February 2016 (Statutory Declaration) in which the applicant made the following claims:[3]

   a)The applicant operated a butcher’s shop in Najaf. He first started working for his father before operating the butcher’s shop. The applicant employed ten workers to run the shop and “made a fortune” from his business. The applicant was perceived to be a wealthy person in Najaf.

   b)In 2012 a competitor (Mr H) opened a butcher’s shop opposite to the applicant’s shop. The competitor was a “ring leader” in Asa’ib Ahl al-Haq (AAH), a prominent Shia militia group. Mr H and his son, who worked in Mr H’s business, were envious of the applicant, and they started harassing the applicant and his employees. Mr H and his son had followers who were armed with guns and would meet nearby the competitor’s shop. Things began to deteriorate as customers became too scared to shop at the applicant’s butchery.

   c)The applicant had an altercation with Mr H about Mr H bringing armed men and placing them outside of the applicant’s shop. Mr H stated that the armed men were from the AAH and no one could prevent them from being there. The applicant swore at Mr H and the group of armed men. The armed men were ready to shoot the applicant, but Mr H told the men to wait as he will teach the applicant a lesson that he will never forget.

   d)The applicant closed his shop, told his family of what had happened, and then went to “kerbala” (sic) for a week where he stayed with a friend before departing Iraq on 12 November 2012. After the applicant arrived in Australia a group of AAH came to his family’s house and threatened them. The applicant’s family told the AAH that the applicant was already in Australia, “they then left a threatening letter with the meaning that they will track me down at any time”.

   e)The applicant fears that he will be harmed by the AAH if he were to return to Iraq due to their influential nature and the applicant’s perceived wealth.

   [3] CB68-69

4. The third occasion on which the applicant provided information relating his claims for protection was his interview with the delegate (TPV Interview) on 10 January 2017. According to the Authority’s reasons for decision,[4] during the TPV Interview the delegate asked the applicant what was the motivation of the AAH members in standing outside his shop, and the applicant responded that it was because he was doing well, and that anyone who is doing well financially was a target. In addition the applicant said that during his final confrontation with Mr H and the armed AAH men a senior cleric who wore a turban and was a “Sayyid” was present.[5] The applicant said he “just lost it”, and swore at the men outside his shop, as well as the AAH; and that because the applicant had sworn at a clergyman the AAH men were prepared to shoot the applicant on the spot, but Mr H urged them not to do so because there were too many people around.[6]

   [4] CB155, [9]

   [5] The delegate noted that a “Sayyid” was a person said to be a descendent of the prophet Mohammad

   [6] CB155, [9]

Delegate’s decision

1. The delegate accepted the applicant is a butcher who operated his own shop in Najaf,[7] and that the applicant was involved in a dispute with the rival owner of a butchery.[8] The delegate did not accept there were AAH members or a cleric present during the confrontation.[9] The delegate’s principal reasons for not accepting these claims is that the applicant did not in his Entry Interview claim that Mr H was linked to the AAH, or that members of the AAH stood outside of his shop, or that a cleric was present during the confrontation; and that the applicant did not in his Statutory Declaration refer to any confrontation with a cleric.[10] The delegate also relied on the finding that the applicant had already made arrangements to leave Iraq before his confrontation with Mr H.[11]

   [7] CB131

   [8] CB132

   [9] CB132

   [10] CB131-132

   [11] CB132

Submissions to the Authority

1. The applicant, through his representative, provided written submissions to the Authority.[12] The representative submitted that the only reason the delegate refused the applicant’s claims for protection was that the delegate believed there was an inconsistency between what the applicant said at the Entry Interview and “his current statement of claims”. The representative then set out what was said by the applicant, and made two submissions. The first was there was a misinterpretation where the interpreter had used the word “envy” whereas the applicant said Mr H used the applicant’s butcher shop as an “excuse”. The second submission was that the total time the applicant gave to giving an explanation about the threats the applicant received was two minutes, and this was not enough time to give such an explanation.

   [12] CB147-148

Authority’s Decision

1. The Authority accepted the applicant is a Shia Muslim from Najaf who ran a successful butcher’s shop until 5 November 2012. The Authority considered that the “central point in dispute is the applicant’s reason for ceasing the business”.

2. The Authority accepted the applicant ceased operating his successful butcher’s shop because he had an altercation with another shopkeeper, Mr H, and that as a result of that conflict Mr H threatened the applicant’s life. The Authority was not satisfied, however, that the applicant’s business declined because armed AAH men were posted outside the applicant’s business every day, or that the applicant abused the honour of a cleric or the AAH during the altercation with the shopkeeper on 5 November 2012.[13] The Authority was not so satisfied because during the Entry Interview the applicant answered in the negative the question whether there were “any armed groups, political groups or religious groups operating in the area where” the applicant lived, and because the applicant did not mention the presence of a cleric in the Statutory Declaration. That these are the Authority’s reasons is apparent from the following passage of its reasons:[14]

   Despite the error in interpretation as identified by [the applicant’s representative], I also note that the applicant was subsequently asked in the arrival interview whether there were “any armed groups, political groups or religious groups operating in the area where you lived”. The applicant replied in the negative. I am of the view that had the AAH figured at all in his departure, then he would have appropriately mentioned them in answer to this question. I also note that the details of the event of 5 November 2012 are again altered in the applicant’s oral evidence as given at the PV interview. In this he stressed that it was his abuse of the cleric in particular that had the militia men about to shoot him. The presence of the cleric had not been previously mentioned. I am of the view that such a crucial detail would have been included in the applicant’s statutory declaration, had it occurred.

   [13] CB156, [12]

   [14] CB155-156, [11]

3. The Authority next referred to what it described as the “essential and significant reason” for which the applicant contended he was persecuted by Mr H, namely, being a member of the particular social group of “people perceived as being wealthy”,[15] and also the applicant’s submission that Mr H was a member of AAH and, therefore, the threat to the applicant is not only from a fellow shopkeeper, but also a “threat from the representative of a feared militia group”.[16] The Authority did not accept that submission for the following reasons (emphasis added):[17]

   Country information indicates that violent crime has increased since 2013 with militia groups using extortion and kidnapping to raise funds. I consider that if the AAH had wished to target the applicant due to any perceived wealth, the more usual tactic would have been to demand “protection money” or the like, rather than depriving his successful business of customers and income. At the PV interview the delegate asked whether the AAH men had asked him for money and he replied that they had not. I am not satisfied that the applicant was targeted because he was perceived as wealthy or by the AAH or any other militia groups because of his financial success or for any other reason. I conclude that any actions taken by [Mr H] against the applicant were as a business competitor, rather than as a member of the AAH.

   [15] CB156, [15]

   [16] CB156, [16]

   [17] CB156-157, [16]

4. After concluding that, due to the passage of time, the threat from Mr H has dissipated, the Authority referred to the applicant’s claim that after he departed Najaf members of the AAH came looking for him, and told his family they would track down the applicant. The Authority said that because it had “not accepted that the AAH were targeting the applicant in any way”, the Authority did “not accept that such a visit occurred”.[18]

   [18] CB157, [17]

5. The Authority was prepared to accept that on his return the applicant would be perceived to be a wealthy individual, and considered whether he would face a serious risk of harm for that reason, but concluded the applicant would not face such risk. Finally, the Authority considered whether the applicant faced a serious risk of harm because he is a Sunni Muslim, but was satisfied the applicant would not face such risk if he were to return.

Grounds of Application

1. The amended application for review contains three grounds.

Ground 1 – finding based on no evidence

1. Ground 1 is directed to the Authority’s reasoning contained in the passage from paragraph 16 of its reasons (which I reproduced in paragraph 12 of these reasons) (relevant passage). The ground is as follows:

   The decision of the IAA was affected by jurisdictional error because in coming to its decision it:

   (a)made a finding that was not supported by evidence; and/or

   (b)relied on irrelevant material; and/or

   (c)engaged in a reasoning process which was irrational and, therefore, unreasonable.

   Particulars

   (1)The IAA found that the Applicant was not targeted by the Asa’ib Ahl al-Haq group (IAA decision, [16]);

   (2)One of the reasons for that finding was the IAA’s finding that if the Asa’ib Ahl al-Haq group wished to target the Applicant due to any perceived wealth, the more usual tactic would have been to demand “protection money” or the like (IAA decision, [16]);

   (3)There was no evidence before the IAA in respect of how how [sic] a militia group in Najaf, Iraq was likely to act if it wished to target a person;

   (4)The Applicant was not asked any questions about how a militia group in Najaf, Iraq was likely to act if it wished to target a person.

   (5)Accordingly, the IAA decision was based on either:

   (A)no evidence; or

   (B)the IAA’s own view of how a militia group in Najaf, unsupported by evidence (and without that matter having been put to the Applicant).

2. When assessing this ground it is necessary to be clear about the aspect or aspects of the applicant’s claims the Authority was addressing in the relevant passage, the actual finding or findings the Authority made, and the manner in which the Authority relied on an assessment about the usual tactics of militias in Iraq.  

3. Ground 1 appears to be predicated on the view that the question the Authority was addressing was whether the AAH targeted the applicant, and that in answering that question the Authority relied on a view about the usual tactics of Iraqi militias. The Minister, on the other hand, submits the Authority was addressing a different claim, namely, whether the applicant faces a real risk of being targeted because he was wealthy, but the Minister accepts the Authority did rely on an assessment of the usual tactics Iraqi militia groups employed.[19]

   [19] Submissions of the First Respondent, [15]

4. Although the Authority did use words that suggest the question it was considering was whether the applicant had been targeted by the AAH per se, the context in which the relevant reasons appear indicates the Authority was addressing a different question, namely, whether the applicant was or would be targeted by the AAH ‘because he might be perceived to be wealthy”. That is apparent from three matters. First, the Authority had already concluded it was not satisfied the applicant’s business declined because armed AAH militia were posted outside it every day, and it did so without relying on any assumption about how Iraqi militias operated.[20] Second, and as I have already noted, in the paragraph of its reasons immediately before the relevant passage the Authority referred to the “essential and significant reason” for which the applicant contended he was persecuted by Mr H, namely he is a member of the particular social group of “people perceived as being wealthy”,[21] and also to the applicant’s submission that Mr H was a member of AAH and, therefore, the threat to the applicant is not only from a fellow shopkeeper, but also a “threat from the representative of a feared militia group”.[22] Third, a specific question the Authority addressed in the relevant passage is how the AAH would have acted “if the AAH had wished to target the applicant due to any perceived wealth”. The Authority answered that question by finding that the more usual tactic it would have employed would have been to ask for protection money or the like from the applicant; but given the applicant did not claim AAH had sought to extort money from him, the Authority concluded the applicant was not targeted and would not be targeted by the AAH because he might be perceived to be wealthy.

   [20] CB156, [12]

   [21] CB156, [15]

   [22] CB156, [16]

5. The particulars to ground 1 claim there was “no evidence before the [Authority] in respect of how . . . a militia group in Najaf, Iraq was likely to act if it wished to target a person”. That implies that the applicant claims the Authority relied on a generalisation about how Iraqi militias were likely to act if they wished to target a person. That is not, however, an accurate description of the generalisation on which the Authority relied. The Authority relied on a more limited generalisation, and that related to the tactics a militia would usually employ if the militia wished to target a person due to the person’s perceived wealth. The generalisation on which the Authority relied is that militias in those circumstances would usually demand protection money or the like. That generalisation, in turn, is based on a broader common sense generalisation: a person who targets another person because of that other person’s wealth usually does so to extract money or some other value from that person. The Authority was entitled to rely on these generalisations based on the Authority’s common experience without any specific evidence to support them.[23] In any event, there was evidence that supported that generalisation, namely, country information to the effect that militia groups in Iraq use extortion and kidnapping to raise funds.

   [23] See Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths at [3200]: “Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used . . . . It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life.” These observations apply a fortiori to fact finding by administrative tribunals.

6. The applicant submits the Authority’s assessment of the usual tactics of militias in Iraq was based on the assumption that because militias may use extortion in Iraq “that is the only way they will operate in Iraq”.[24] I do not accept that submission. First, as I have already concluded, the Authority did not rely on a generalisation about how Iraqi militias in general acted in targeting people; it relied on the more limited generalisation of the tactics a militia would usually employ if the militia were targeting a person because of the person’s perceived wealth. Second, the Authority did not rely on a generalisation that the only tactic militias who targeted persons perceived to be wealthy would use would be to ask for protection money or the like; the Authority referred to the seeking of protection money and the like as being the “more usual tactic”.

   [24] Applicant’s Submissions, [19]

1. This part of ground 1, therefore, fails because the Authority’s finding related to the applicant’s claim that he feared he would be targeted by the AAH because of his perceived wealth, and in not accepting that claim the Authority relied on a limited generalisation that was supported by evidence, but which in any event did not require to be supported by any evidence.

2. In the alternative, the applicant submits that the acts the applicant claims the AAH engaged in did constitute extortion. The applicant relies on the definition of “extort” given in the Concise Oxford English Dictionary, namely, to “obtain by force”. Even if the conduct of AAH as claimed by the applicant can properly be characterised as extortion that does not mean the Authority reasoned irrationally. As I have already noted, the question the Authority in the relevant passage addressed was how the AAH would have acted “if the AAH had wished to target the applicant due to any perceived wealth”. The Authority answered that question by relying on the generalisation that the more usual tactic a militia in that situation would have employed would have been to ask for protection money or the like from the applicant. The conduct denoted by the generalisation is reasonably capable of being characterised as extortion. That remains so even if, as the applicant submits, the conduct of AAH as claimed by the applicant could also properly be characterised as extortion.

3. Ground 1, therefore, fails. Even if, however, the Authority did reason irrationally by relying on a generalisation about the usual tactics Iraqi militia would employ, it could not have made any difference to the outcome of the Authority’s decision. As I have already noted, the Authority concluded it was not satisfied the applicant’s business declined because armed AAH militia were posted outside it every day without relying on any assumption about how Iraqi militias operate.[25] Further, the Authority concluded the applicant would not face any risk of harm on the ground that he might be perceived to be wealthy, again without relying on any assumption about how Iraqi militias operate.[26]

   [25] CB156, [12]

   [26] CB157-158, [19]

Ground 2 – irrational reasoning

1. Ground 2 is as follows:

   The decision of the IAA was affected by jurisdictional error because in coming to its decision it:

   (a)Ignored relevant evidence; and/or

   (b)Engaged in a reasoning process which was irrational and, therefore, unreasonable.

   Particulars

   (1)The IAA found that the Applicant was not targeted by the Asa’ib Ahl al-Haq group (IAA decision, [16]);

   (2)During his Protection Visa interview on 10 January 2017 the Applicant provided evidence that his family had told him that after he left Iraq, members of the Asa’ib Ahl al-Haq group had searched for him and gone to his house;

   (3)That evidence was recorded in the IAA decision (IAA decision, [17]);

   (4)The IAA rejected that evidence on the basis that it had “not accepted that the AAH were targeting the applicant in any way” (IAA decision, [17]);

   (5)The evidence itself supported the Applicant’s contention that the Asa’ib Ahl al-Haq group targeted the Applicant before he left Najaf, Iraq;

   (6)The IAA engaged in circular reasoning, by rejecting evidence because it had already come to the conclusion about the matter in respect of which the evidence was relevant.

   (7)By doing so, the IAA also ignored relevant evidence.

2. This ground is directed to the following passage from the Authority’s reasons:[27]

   The applicant has stated that after he departed Najaf members of the AAH came looking for him and told his family that they would track him down. As I have not accepted that the AAH were targeting the applicant in any way, I do not accept that such a visit occurred.

   [27] CB157, [17]

3. The substance of the ground is contained in paragraphs 6 and 7 of the particulars. It is there claimed that the Authority ignored relevant evidence when not accepting the applicant’s evidence of the AAH’s involvement in his altercation with Mr H (AAH involvement evidence) and, having made a finding without regard to such relevant evidence, the Authority relied on that finding in concluding it would not accept the relevant evidence. The relevant evidence the ground claims the Authority ignored is the applicant’s claim that, after he left Iraq his family told the AAH that the applicant was already in Australia, and that the AAH “left a threatening letter with the meaning that they will track me down at any time” (asserted relevant evidence).[28]

   [28] CB69, [8]

4. This ground assumes that the only way it was rationally or reasonably open to the Authority to assess the AAH involvement evidence was for the Authority to regard the asserted relevant evidence as capable of having probative value independently of the AAH involvement evidence, and for the Authority to take the asserted relevant evidence into account when assessing whether it should accept the AAH involvement evidence. The applicant, however, does not explain how the asserted relevant evidence is capable of bearing any probative value independently of the AAH involvement evidence.

5. In my opinion, the asserted relevant evidence by itself could have had no probative value, or at least it was reasonably open to the Authority to consider that by itself it did not have any probative value, because there would be no context, or it was reasonably open to the Authority to consider there would be no context, that could explain why the AAH would inform the applicant’s family after the applicant departed Iraq that it would track down the applicant. Whether or not the asserted relevant evidence has any probative value, therefore, or at least, whether it was reasonably open to the Authority to consider whether the asserted relevant evidence had any probative value, depended on other evidence before the Authority. The AAH involvement evidence was the only evidence, or evidence the Authority could reasonably have considered to be the only evidence, that could have rendered probative the asserted relevant evidence; but the asserted relevant evidence could only have done so if the Authority were to accept that evidence. The Authority, however, did not accept that evidence. That rendered irrelevant, or at least, it was reasonably open to the Authority to consider irrelevant, the asserted relevant evidence.

6. On a fair reading of its reasons, the Authority proceeded on the basis that the relevance of the asserted relevant evidence was conditional on its accepting the AAH involvement evidence; and having not accepted the AAH evidence, it was open to the Authority not to accept the asserted relevant evidence as probative. The Authority did not act irrationally or unreasonably by proceeding in this way. Ground 2, therefore, also fails.

Ground 3 – general

1. Ground 3 is as follows:

   The decision of the IAA was affected by jurisdictional error because it engaged in a reasoning process which was irrational and, therefore, unreasonable.

   Particulars

   (1)The IAA found that the Applicant was not targeted by the Asa’ib Ahl al-Haq group (IAA decision, [16]);

   (2)One of the reasons for the finding was that the Applicant, in his arrival interview, replied in the negative to a question about armed groups, political groups or religious groups in the area where he lived (IAA decision, [11]);

   (3)That part of the arrival interview occurred after the Applicant had been asked to “briefly” state why he left Iraq;

   (4)In the circumstances, the IAA’s finding in respect of [the applicant’s] answer about armed groups, political groups or religious groups was a finding of credibility which was based on minor inconsistencies and trivial errors and insufficient to support the IAA’s ultimate finding.

2. The ground, as particularised, claims the Authority did not accept the applicant’s claim because it relied on minor inconsistencies and trivial errors. In his written submissions, however, the applicant relies on the principles considered by the Full Federal Court in MZZJO v Minister for Immigration and Border Protection.[29] I will deal separately with the two matters on which the applicant relies.

   [29] [2014] FCAFC 80

Ground 3 – reliance on minor inconsistencies?

1. An administrative decision-maker may be held to have made a jurisdictional error if its decision is based on adverse credibility findings that, in turn, are based only on minor inconsistencies or trivial errors. The relevant principles have been stated by Allsop CJ in CWR16 v Minister for Immigration and Border Protection:[30]

   The fact that a finding by the Tribunal is on a matter of credit does not “shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. As Flick J wrote later in that paragraph, credit findings, “like all findings, must be rationally made and based upon facts having logical and probative weight”. Determinations on credibility and weight must “be made rationally and logically, and be articulated properly” and minor inconsistencies and trivial errors in an applicant’s account cannot be used to find that an applicant is not credible: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. Where the Tribunal goes on to use such minor inconsistencies or omissions to make an adverse credibility finding and conclude that an applicant’s claims are concocted, without disclosing a legitimate articulable basis for the finding, then it may become apparent that a decision is based on illogical or irrational findings or inferences: SZLGP at [26].

   [30] [2018] FCA 859, [62]

2. The question, then, is whether the matters on which the Authority relied in paragraph 11 of its reasons for not accepting the applicant’s evidence that the applicant’s business declined because AAH militia men were posted outside it every day, that there was a member of the clergy with the armed men, or that the applicant abused the honour of the cleric, were minor or trivial.

3. The Authority did not accept the applicant’s claim that his business declined because AAH militia men were posted outside it every day because during the Entry Interview the applicant answered “no” the question whether there were “any armed groups, political groups, or religious groups operating in the area” in which the applicant lived. The applicant’s having answered this question “no” cannot reasonably be considered a minor inconsistency or otherwise trivial. The presence of armed men in the area in which the applicant lived was a central element of the applicant’s claims for protection as stated in the Statutory Declaration and during the TPV Interview.

4. The Authority did not accept the applicant’s claim that a cleric was present during the altercation because the applicant did not mention this claim in his Statutory Declaration. The applicant, however, submits the Authority erred in finding the applicant did not mention the cleric in the Statutory Declaration because although the word “cleric” is not found in the Statutory Declaration, the applicant’s use of the words “and his group” should be taken to have been intended by the applicant to include the cleric.[31] The applicant submits he ought not to have been expected to list every member of “his group”. I do not accept the applicant’s submission that he intended to include the cleric in “his group”. Before the words “his group” in paragraph 7 of the Statutory Declaration the words “these groups” and “the alasaeb group” appear. In these circumstances it was at the very least reasonably open to the Authority to construe “his group” as not including the cleric, and that the applicant first mentioned the presence of a “cleric” at the TPV Interview.

   [31] Applicant’s Submissions, [43]

5. The applicant’s failing to include any reference to “cleric” in the Statutory Declaration is not a minor inconsistency or otherwise trivial. In the account of the altercation the applicant gave at the TPV Interview, it was the fact that the applicant had abused the cleric that led to the members of AAH to want to attack the applicant.[32]

   [32] Affidavit of B H J Zhao, page 16.6: “So when I abused the clergy, they wanted to attack me and kill me.”

6. This part of ground 3, therefore, fails.

Ground 3 – MZZJO

1. The applicant submits that the judgment of the Full Federal Court in MZZJO is authority for the proposition that a decision-maker such as the Authority must exercise caution when assessing the significance of answers given or not given by persons in entry interviews, and that the failure by a decision-maker to exercise such caution may be a reason for concluding that the decision-maker misunderstood its task on review. The applicant further submits that the Authority did not exercise the requisite caution when relying on the applicant’s failing to mention at the Entry Interview that the AAH were involved in the applicant’s altercation with Mr H.

2. The starting point in assessing these submissions is the judgment of the Full Federal Court in MZZJO and, in particular, on the passage of the judgment on which the applicant relies. In the course of considering one of the grounds of appeal, the Full Federal Court referred to the primary judge’s conclusion that it was open to the Refugee Review Tribunal in that case to make adverse credibility findings. The Full Federal Court noted that those findings were based in part on “inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview”.[33] That led the Full Federal Court to make the following observations:

   On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

   Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

   [33] [2014] FCAFC 80, [55]

3. With respect, it is difficult to identify from this passage what is meant by “some caution in relation to omissions by applicants of matters at entry interview”, and how any lack of caution is capable of grounding a finding that the decision-maker has misunderstood its task. The passage cannot reasonably be taken to establish a distinct category of jurisdictional error that applies to the treatment of an applicant’s giving or omitting to give information during entry interviews, with jurisdictional error being established if the decision-maker fails to exercise caution when assessing the significance of the applicant’s giving or omitting to give information. In my opinion MZZJO goes no further than stating that when assessing whether a decision-maker has acted unreasonably or irrationally in relying on what an applicant said or omitted to say at an entry interview, the court exercising judicial review jurisdiction may need to have regard to whether there was anything in the circumstances of the entry interview that would render irrational or legally unreasonable the decision-maker’s reliance on what the applicant said or omitted to say during the interview.

4. The applicant submits there is nothing in the Authority’s reasons that indicates that it “took into account the various factors referred to in MZZJO or that demonstrates any “careful consideration” of what occurred in the arrival interview”.[34] There are two difficulties with this submission. The first is that it assumes that the factors the Full Federal Court identified in MZZJO were present in the circumstances of the Entry Interview. Whether or not that is the case, however, is a matter to be established by evidence; and the applicant has not attempted to establish by evidence the particular circumstances of the Entry Interview. The second difficulty is that the submission does not identify how the Authority ought to have taken into account the factors identified in MZZJO which the applicant assumes were present in the Entry Interview, or what the Authority was required to do to give “careful consideration” of what occurred at the Entry Interview when assessing the significance of the applicant’s answering “no” the question: “Were there any armed groups, political groups, or religious groups operating in the area you lived?”

   [34] Applicant’s Submissions, [39]

5. The applicant’s failure to point to evidence in relation to the particular circumstances of the Entry Interview, or to explain how the Authority ought to have taken into account or carefully considered what occurred at the Entry Interview, should be assessed by reference to three matters. First, the transcript of the Entry Interview is in evidence before me. The applicant, however, has not pointed to anything in the transcript that suggests he had any difficulty, or suffered from any impairment that could have given rise to any difficulty, in understanding the nature of the Entry Interview or the questions that were asked of the applicant. Second, there is in evidence the transcript of the TPV Interview. The applicant was there asked why he did not mention the AAH at the Entry Interview. The applicant gave one explanation – the person who interviewed him “said tell me one or 2 reasons why you left here so I told him”.[35] Third, the applicant’s representative made submissions to the Authority to explain why the applicant did not mention the AAH at the Entry Interview. The only explanation the representative gave is that two minutes were devoted to the applicant explaining why he had left Iraq, and those two minutes were “not enough to give an explanation about the threats received by the applicant, especially that the applicant was directed to answer in one or two sentences”.

   [35] Affidavit of B H J Zhao, page 21.7

6. The Authority did not rely on the applicant’s not mentioning the AAH when he answered the questions about why he left Iraq as a reason for not accepting the applicant’s claims that the applicant’s business declined because armed AAH men were posted outside the applicant’s business every day, or that the applicant abused the honour of a cleric or the AAH during the altercation with the shopkeeper on 5 November 2012.[36] The Tribunal relied on the applicant’s having answered “no” the question whether there were any armed groups, political groups, or religious groups operating in the applicant’s area. There is nothing in the circumstances surrounding the Entry Interview that rendered irrational or legally unreasonable the Authority’s relying on the applicant’s answering that question “no” as a reason for not accepting the applicant’s claims that his business declined because armed AAH men were posted outside the applicant’s business every day, or that the applicant abused the AAH during the altercation with the shopkeeper on 5 November 2012.

   [36] CB156, [12]

1. This part of ground 3 also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds stated in the amended application. I propose, therefore, to order that the application be dismissed. Counsel for the parties agreed that costs should follow the event, and that the costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth), namely, $7,467. I also propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $7,467.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 31 January 2019