ECS18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1095
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ECS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1095
File number: SYG 2220 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 25 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming a decision not to grant the applicant a protection visa – whether the Authority made illogical, irrational or unreasonable findings based on unwarranted assumptions – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 473CA, 476, 477 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 25 July 2024 Place: Perth Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Ehsani Legal Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2220 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ECS18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The applicant is a citizen of Iran who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the delegate’s decision was affirmed by the Immigration Assessment Authority (Authority) on 11 July 2018. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises one ground alleging that the Authority decision is affected by jurisdictional error because its findings are said to be illogical, irrational or legally unreasonable, including because the Authority made unwarranted assumptions.
For the reasons explained below, I have found that the applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia by sea in April 2013 and is an unauthorised maritime arrival within the meaning in s 5AA of the Migration Act.
On 16 May 2013 the applicant attended an Irregular Maritime Arrival Entry Interview (arrival interview) with an officer of the Minister’s Department.
On 27 October 2016 the applicant applied for a protection visa. The applicant’s claims for protection were set out in a statement that accompanied his visa application.
On 22 September 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview).
A delegate of the Minister refused to grant the applicant a protection visa on 13 October 2017. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
On 11 July 2018 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. Having regard to the ground advanced in the judicial review application, it is not necessary to summarise the Authority decision in detail. Those parts of the Authority decision that are most relevant to the consideration of the applicant’s ground are addressed in the discussion below relating to the ground.
JUDICIAL REVIEW APPLICATION
The applicant filed an application for judicial review on 7 August 2018. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant filed a further amended application on 4 July 2024, raising the following ground:
1.The Second Respondent (Authority) made a jurisdictional error in relation to particular matters of fact.
a.A finding of fact or lapse in the process of reasoning of a decision-maker is judicially reviewable where it is legally unreasonable and concerns a material matter: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47];
b.In particular, such a finding or defect in reasoning may arise if there is no evident or intelligible justification for it, or if it is otherwise not reasonably open: BQG21 v Minister for Immigration [2023] FCA 865 at [29], [39]-[44]; Minister for Immigration v SZRKT [2013] FCA 317; 212 FCR 99 at [148];
c.Legal unreasonableness or other jurisdictional error may arise where the Authority makes an unwarranted assumption: BZI17 v Minister for Immigration [2022] FedCFamC2G 717 at [28]-[34], [48]; DVS18 v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FedCFamC2G 611 at [21], [65];
d.The materiality of findings as to credibility is magnified by the recognition that credibility is not linear and a specific finding going to credibility may impact credibility more broadly: Bains v Minister for Immigration [2012] FCA 649; 205 FCR 217 at [38]; DJW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 479 at [50]-[51];
e.The Authority at paragraph 13 of its decision made an unwarranted assumption that the Applicant would not have the skills to write legal contracts, particularly in circumstances where standard form contracts could conceivably have been in use at the real estate business;
f.The Authority at paragraph 13 of its decision made an unwarranted assumption that the Applicant, having moved from welding to the real estate business, would not have undertaken further training in welding after making the move, particularly in circumstances where the Applicant could conceivably have wished to maintain his skills in welding as an interest or as “something to fall back on”;
g.The Authority relied at paragraph 13 of its decision on these conclusions as going to credibility;
h.The Authority at paragraph 14 of its decision expressed concern that the Applicant had not indicated how he had concluded that the driver of the car was a mullah, in circumstances where the Applicant’s evidence was that a few nights later he was arrested on the basis of a complaint by a mullah and may therefore have inferred that the driver of the car was the same man;
i.The Authority at paragraph 14 of its decision expressed concern as to how the driver of the car would have known that the Applicant was of Azeri ethnicity, in circumstances where the driver of the car could conceivably have drawn that conclusion based on the Applicant’s appearance and location;
j.The Authority at paragraph 14 of its decision made an unwarranted assumption that the driver of the car would not have racially abused a person of the same ethnicity as the President, whereas there was a difference between a person in high office and an person without that degree of status such as the Applicant;
k.The Authority’s relied at paragraph 14 of its decision on these conclusions as going to credibility;
l.The Authority found at paragraph 18 of its decision that the Applicant had provided “no reason or conjecture as to why this mullah, a complete stranger, would lodge a false complaint against him”, whereas the Applicant had identified a potential motivation being prejudice against his ethnic group;
m.The Authority found at paragraph 18 of its decision that it was not plausible that the Applicant would be the subject of false charges as the “recurring theme” in country information regarding those cases was that the victims were politically active, which the Applicant was not, in circumstances where a departure from the suggested theme did not exclude plausibility;
n.By virtue of the above illogicality, including reliance on unwarranted assumptions, the Authority’s conclusions were legally unreasonable.
There was no extant order for the filing of any further amended application at the time the further amended application was filed. At the hearing, I made an order granting leave to the applicant to rely on the further amended application filed on 4 July 2024.
The evidence before the Court comprises the court book filed by the Minister on 20 September 2018 and an affidavit of Behrooz Ehsani filed on behalf of the applicant on 23 July 2024, which was relevant to whether the applicant should be granted leave to rely on the further amended application filed on 4 July 2024.
CONSIDERATION OF THE APPLICANT’S GROUND
Relevant principles
There is no material dispute between the parties as to the legal principles that are relevant to the resolution of this ground. While the applicant’s ground is pleaded as legal unreasonableness, the applicant in his submissions has also referred to cases addressing illogicality or irrationality.
There may be jurisdictional error in a decision on the basis of illogical or irrational findings of fact or reasoning where ‘extreme’ illogicality or irrationality is shown, measured against the standard that is not sufficient for the question of fact to be one about which reasonable minds might reach different conclusions: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15) at [47]. Illogicality or irrationality may be considered not only in relation to the end result, but also in relation to fact finding that leads to the end result: ARG15 at [47].
The legal principles relevant to unreasonableness in fact finding or illogicality and irrationality were summarised by the Full Court in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30], where the Court said:
The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…
(citations omitted)
(5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “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” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].
A finding can be legally unreasonable, or illogical or irrational if it is based on an unwarranted assumption not founded in evidence: DAO16 at [45]; BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717 (BZI17) at [28]-[34], [48].
In BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573, Perram J said at [8]:
Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] per Kiefel CJ, [82] per Nettle and Gordon JJ, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] per Hayne, Kiefel and Bell JJ.
While there was no dispute between the parties at the hearing in relation to the relevant principles, Counsel for both parties acknowledged that the applicant places greater weight on unwarranted assumptions than the Minister does. Counsel for the Minister submitted that there is no clear statement in the case law as to what an unwarranted assumption might be or when it will result in legal unreasonableness. Counsel for the Minister submitted that it is really a question of the Court’s evaluation, on a proper reading of the reasons, whether the decision-maker has in an unwarranted way relied on assumptions of behaviour that do justify a finding of unreasonableness. Counsel for the Minister submitted that in cases where a decision-maker has identified with sufficient clarity evidence upon which its finding is based, and explains the logic of the finding by reference to that evidence, there is unlikely to be an unwarranted assumption.
Several of the findings impugned by the applicant in this matter relate to credibility. The assessment of credibility is not necessarily linear: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [79]; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189 at [101]. This is something that the Court is mindful of in assessing whether any error going to credibility is material.
Consideration of the findings in this case
The findings of the Authority that the applicant seeks to impugn in the present case are set out at [13], [14], and [18] of the Authority’s reasons. In these paragraphs, the Authority said (footnotes omitted):
13.The applicant’s central claim is that he suffered harm and fears harm on return to Iran, due to an event that occurred in October/November 2012. The applicant has stated that he was working in his family real estate business when the event occurred. This business was beneath the family home. At his arrival interview he stated that his duties included office administration, contracts and renting out properties. He was asked whether he wrote contracts and responded that he did. In his PV application the applicant states that he left school after Grade 7. He advised at his arrival interview that he repeated Grade 8 but failed and left school. He worked with his father in the family business as a welder until June 2008. The welding shop was also situated beneath the family home. He then joined the family Real Estate business in June 2008 and worked here until just before his departure from Iran. I have some concerns with this evidence. There is a significant difference between the duties required of a welder and a real estate agent. I have some doubts as to whether the applicant would have the skills to write legal contracts, given his inability to complete any secondary education. Further to this, the applicant has provided a certificate of vocational skills indicating that he successfully completed 213 hours of training in Hand-held Arc Welding in mid-2009. I do not accept that the applicant would be undertaking training in welding if he had left that trade as claimed a year before. I do not accept that the applicant worked in his family Real Estate agency from 2008 until his departure from Iran. I conclude that he continued to work as a welder. This causes some concerns regarding his credibility.
14.The applicant then claims that, while he was at work in the real estate office, a car pulled up outside their home and parked in a no parking zone. The applicant has described this event and the consequences in great detail at his arrival interview, in his statement of claims and at the PV interview. At his arrival interview the applicant stated that he “very politely” asked the driver not to park in the No Parking zone. The applicant claims that when the driver got out of the car he saw that the man was a mullah but he was not wearing religious clothing. The mullah responded “you are verbally assaulting us”. I have concerns with this part of the applicant’s evidence. He was not asked at the arrival interview how he had come to the conclusion that the driver of the car was, in fact, a mullah in the absence of any religious dress. In his statement of claims the applicant makes no mention of how the mullah was dressed. He does however add that “they uttered racist words and said that Azaris think they owned the country now”. As noted above, the applicant provided significant detail regarding the incident at his arrival interview, which was held only a few months after the claimed event. He made no mention of being subject to racist insults from the mullah. The applicant was not asked by the delegate how the mullah had concluded that he was an Azeri. I note that ethnic Azeris number approximately 13 million or 16 percent of the population, and include the supreme leader among their numbers. I do not accept that an Iranian Islamic scholar would insult someone on the basis of an ethnicity shared by the Supreme Leader, Ayatollah Khamenei. I consider this recent claim of racist abuse to be an embellishment, which further undermines the applicant’s credibility.
…
18.The applicant has provided no reason or conjecture as to why this mullah, a complete stranger, would lodge a false complaint against him. The review material including the DFAT and US Department of State reports contain many examples of Iranians arrested, charged or detained on the basis of spurious or false claims. The recurring theme in these cases is however that the victims involved were political or human rights activists, bloggers or members of the media. The United Nations Special Rapporteur Ahmed Shaheed notes that “The recurrent use of vague references to threats to national security, propaganda against the system and insult to authorities to prosecute and detain journalists or activists is in contradiction to both international norms relating to freedoms of expression and association and the principle of legality”. At the time of the claimed event the applicant was a welder, living at home with his family in Tehran. He was not politically active in any way and was of no interest to the Iranian authorities. I do not accept as plausible that he would be targeted as claimed and falsely charged with insulting the Supreme Leader. I reject this claim. It follows that I do not accept that the applicant was detained and tortured, that he was subsequently monitored or surveilled by the Ettela’at or other authorities, that he was on bail as the time of his departure from Iran, that his father was killed by the Ettela’at or that his various family members were affected as claimed.
The Authority’s findings at [13]: particulars (e), (f) and (g)
Particulars (e), (f) and (g) all relate to the Authority’s reasons at [13], which concludes with the Authority finding the applicant worked as a welder, not as a real estate agent as he had claimed, at the time of a claimed incident in 2012. The particulars challenge aspects of the reasoning on which that finding was based.
Particular (e) refers to the Authority’s expression of ‘some doubts as to whether the applicant would have the skills to write legal contracts, given his inability to complete any secondary education’.
The applicant submitted that this entails an unwarranted assumption that he was drafting contracts from scratch, when it is perfectly possible that there were precedents or even standard form contracts which the applicant with his education was able to fill out. Counsel for the applicant submitted that the Authority’s assumption that there was a complexity to the contractual task incompatible with the applicant’s education was not well-founded.
The Minister submitted that the applicant’s contention in relation to particular (e) can be rejected on the face of the Authority’s findings. The Authority at [13] addressed the applicant’s claim that masked men raided his family home in October or November 2012 when the applicant was working in the family real estate business. The applicant gave details at his arrival interview about his duties, including that he wrote contracts, and the Authority also noted the applicant’s evidence that he had repeated grade 8 and then left school. The Minister submitted that the Authority’s concern about the applicant’s ability to write contracts was based on his limited education and the fact that the Authority found the applicant had continued to work as a welder and was not working in the family’s real estate business in 2012. The Minister submitted that these findings were explained and had a cogent and intelligible basis. While the applicant’s assertion that the real estate business used pro forma contracts is possible and plausible, there was no information before the Authority about that. It was therefore open to the Authority to take the applicant’s response at the arrival interview at face value, even if another interpretation of that answer might have been open.
In his oral submissions, Counsel for the Minister submitted that the Authority was entitled to make findings based on the evidence that the applicant gave. The fact that the applicant is asking the Court to find that the Authority should have made assumptions about other possible answers the applicant might have given to questions he was not asked takes the matter well outside of judicial review.
I accept that it was open to the Authority to express doubt as to the applicant’s ability to write contracts, as he claimed he did, given his limited education. It is not clear from the Authority’s reasons whether the Authority assumed that the applicant would have prepared contracts ‘from scratch’, as the applicant submitted to the Court. However, I accept that it is implicit in the Authority’s reasons that the Authority considered that the writing of contracts was above the skill level of a person who was only educated to Grade 7 or 8. The applicant gave evidence of his claimed duties and his education at his arrival interview. While other decision-makers may have expressed different views or reached different conclusions, a reasonable decision-maker may logically form the view reached by the Authority in this matter.
Particular (f) relates to the Authority’s observation at [13] that ‘the applicant has provided a certificate of vocational skills indicating that he successfully completed 213 hours of training in Hand-held Arc Welding in mid-2009’. The Authority did not accept that the applicant would be undertaking training in welding if he had left that trade as claimed a year before.
The applicant submitted that this entails an unwarranted assumption of practicability or inclination, with the Authority assuming that the applicant could not have completed the training while working in real estate or that he would have had no desire to do so. The applicant submitted that there is no indication of when the training began, only that it concluded in mid-2009, and that 213 hours is a relatively small number of hours and may have been spread over a long period. Earlier training by the applicant before entering the real estate business was 840 hours. The applicant further submitted that the fact he had ceased working in the welding family business and begun to work in real estate does not necessarily mean he would have lost the desire to engage in further training in welding. Rather, the applicant submitted that it was possible that he may have developed an interest in the subject that he wished to pursue, or may have wished to have welding as a skill to fall back on in the event that he ceased to work in real estate.
The Minister submitted that there were two problems with the applicant’s submission in relation to particular (f). First, the applicant never claimed that he had undertaken further welding training after 2008 when he claimed to have started working in the family real estate business in order to maintain skills or as an interest. It was therefore not for the Authority to make any assumptions about this. Second, even if what the applicant states is a rational and logical explanation for the applicant having undertaken welding training after having taken up work in the real estate business, that does not mean it was not open to the Authority to find that the applicant’s claims presented a contradiction. Where claims might be considered and resolved in different ways, that the Authority chooses to resolve the claim one way rather than another does not result in a conclusion of legal unreasonableness or illogicality.
I largely accept the Minister’s submissions in relation to this particular. It was open to the Authority to identify that there was some inconsistency or contradiction in the applicant pursuing his welding training and qualifications in 2009, when he claimed to have stopped working as a welder and started working in real estate in 2008. While there may be reasons, as the applicant speculated, that he might have wanted to do further training in welding after commencing work in real estate, these were not before the Authority and did not make it illogical or irrational for the Authority to identify the contradiction in the applicant’s evidence. Other decision-makers may have reached different conclusions, but it cannot be said that no logical or rational decision-maker could find that the applicant continued to work as a welder, and did not change to working in real estate as he claimed, when the evidence before the Authority showed that the applicant continued to pursue qualifications in welding in the year after he claimed to have ceased working in that trade.
Further, I note that the applicant asserted the Authority made unwarranted assumptions in relation to practicability (namely, that the applicant could not have completed the hours of training while working real estate) and inclination (namely, that the applicant would not have had a desire to complete the welding training). I do not consider that the Authority made any assumption based on practicability, on the understanding that by this, the applicant is suggesting that the Authority assumed he would not have time to complete the training if he was working in real estate. There is nothing in the Authority’s reasons to suggest that it formed any assumption to this effect. After referring to the evidence, the Authority simply said ‘I do not accept that the applicant would be undertaking training in welding if he had left that trade a year before’. I am prepared to infer from this statement that the Authority may have assumed that the applicant would not have had the desire to undertake training in welding when he claimed to have left the trade. However, I do not think this is an assumption that no reasonable decision-maker could make based on common sense or a reasonable appreciation of human experience: see BZI17 at [48]. It appears to stem from an inference that there would be little utility in the applicant undertaking further training in a trade he claimed to have left. I do not find that the Authority made any illogical or irrational finding based on unwarranted assumptions.
Particular (g) relates to the final sentence of [13], where the Authority expressed that the conclusion it reached that the applicant continued to work as a welder caused it to have some concerns regarding the applicant’s credibility. The applicant submitted that the Authority’s concerns raised at [13] therefore have a broader significance to the applicant’s case as a whole.
This particular relates primarily to an assessment of materiality, in the event that the Court accepts that the Authority made findings that were legally unreasonable, illogical or irrational. Given that I have not found any legal unreasonableness, illogicality or irrationality in the Authority’s findings or reasoning, it is not necessary to consider materiality.
I do not accept that the applicant has established the jurisdictional errors he alleged in relation to [13] of the Authority’s reasons.
The Authority’s findings at [14]: particulars (h), (i), (j) and (k)
At [14] of its reasons, the Authority considered the applicant’s claim regarding an incident that said to have incurred while he was working in a real estate office.
Particular (h) relates to concerns that the Authority expressed about the applicant’s evidence regarding the incident, in particular, the applicant’s evidence that the man was a mullah but he was not wearing religious cloth. The Authority observed that the applicant was not asked at the arrival interview how he had come to the conclusion that the driver was, in fact, a mullah in the absence of any religious dress.
The applicant submitted that it is true that the basis for his conclusion that the driver was a mullah was not explored of the arrival interview. However, the applicant further submitted that it was not reasonably open to Authority to hold concerns on the basis that the applicant did not explain this in the arrival interview, in circumstances where the applicant’s knowledge was potentially explained in other evidence given in his written statement and protection visa interview, including that:
(a)the applicant said in his written statement that he was told that he had verbally assaulted a high ranking mullah, who was named in the statement, and that he learned from his uncle that the mullah was a member of the Aghidati Siyasi (the ideological branch of the regime); and
(b)the delegate’s decision record summarised the applicant’s evidence from his protection visa interview as:
The applicant claims that a dispute ensued when he asked these people to not park in front of the business, only to discover that the occupants of the vehicle were a mullah by the name of [name redacted] and his bodyguard. The applicant corrected this name at interview from [name redacted] in the written statement.
The applicant submitted that this material suggests that the applicant exchanged words with the mullah at the time of the altercation and, in any event, the man’s status was later conveyed to him.
The Minister submitted that it cannot have been unreasonable or illogical for the Authority to have stated something that was unquestionably correct, namely, that the applicant never did indicate how he had concluded the relevant individual was a mullah. The Minister also submitted that the Authority did not reject the claim outright. Rather, it rejected that the mullah had uttered racist words directed to Azeris in circumstances where the Supreme Leader was of that ethnicity, and the applicant had made no apparent mention of such remarks during the arrival interview.
In his oral submissions, Counsel for the Minister submitted that the Authority was well aware of the claim that there was a conversation that took place between the applicant, the mullah and the bodyguard and referred to that conversation at [14]. But there is nothing in that explanation to indicate that the mullah self-identified or introduced himself and therefore the applicant was able to discern who that individual was. Nor did the applicant indicate that he later discovered that the person must have been a mullah with a particular name because of later events. Counsel for the Minister submitted that the applicant in his claims was quite clear that he knew at the time of the event who the individual was and it was not unreasonable for the Authority be concerned about how the applicant knew this, given the lack of religious dress.
In assessing this particular, it is relevant to have regard to how the applicant articulated his claims. In his arrival interview, the applicant relevantly said:
I was sitting in the real estate shop, there was a no parking sign and somebody tried to park there. I cam out and very politely asked not park here. When he came out of the car, I saw that it was a Mullah but in non religious clothing.
In his written statement provided with his protection visa application, the applicant relevantly said:
One day in October 2012, I was in my real estate shop when I noticed someone parking in front of our shop. I went out and asked the driver not to park there and while doing that I realised that the person driving the car was a Mullah and that he had a security guard with him. They came out of the car together and accused me of verbally abusing them.
The applicant’s claims were advanced in a way that suggested at the time of the incident that he knew the person was a mullah. As acknowledged by the applicant, there is nothing before the Court to suggest that the Authority was incorrect in observing that the applicant was not asked at the arrival interview how he came to the conclusion that the person wearing plain clothes was a mullah. The applicant’s case appears to be that it was unreasonable for the Authority to express concerns about the applicant’s evidence when there is other evidence before the Court that may explain why the applicant understood the person to be a mullah. The other evidence that the applicant identified explains why the applicant may subsequently have believed that the person was a mullah but does not explain how he reached this conclusion at the time of the incident. I do not consider that the Authority observing, in the context of identifying several concerns with the applicant’s evidence, that the applicant was not asked about how he identified the person as a mullah at the time of the incident and that he did not refer to the way the mullah was dressed in his subsequent evidence as amounting to a finding or reasoning process that was legally unreasonable, illogical or irrational. The Authority is simply identifying one aspect of the applicant’s claim that has not been fully explained.
Particular (i) relates to the Authority’s observation that the applicant was not asked at his protection visa interview how the mullah had concluded that the applicant was Azeri.
The applicant submitted that this may accurately describe the questioning of the applicant in relation to the altercation, but overlooks the possibility that the mullah may have been able to infer or guess the applicant’s ethnicity based on his physical features or the location of family business. The applicant submitted that the absence of an explanation as to how the mullah concluded he was Azeri does not exclude the possibility that the mullah was able to do so. The applicant submitted that it was therefore unreasonable for the Authority to rely on this gap in the evidence as part of its rejection of the applicant’s claim of abuse. In his oral submissions, Counsel for the applicant submitted it was unreasonable for the Authority to conclude that the claim of racial abuse was concocted ‘simply because the applicant hasn’t explained how the mullah perceived his ethnicity’.
The Minister submitted that the Authority’s observation cannot have been unreasonable or illogical when it was in fact correct. The Minister submitted that what the driver of the car might have known or concluded was not something the Authority was in a position, or required, to speculate about.
I accept the Minister’s submissions in relation to this particular. There is nothing before the Court to suggest that the Authority was incorrect in its observation that the applicant was not asked by the delegate how the mullah concluded the applicant was Azeri. As with the previous particular, the Authority was assessing the applicant’s evidence and identified aspects of the applicant’s evidence that had not been fully explained. It was open to the Authority to identify that the applicant had not been asked at the protection visa interview about how the mullah identified him as Azeri, with the implication that this was one aspect of the evidence that was not fully explained.
Particular (j) relates to the Authority’s lack of acceptance that an Iranian Islamic scholar would insult someone on the basis of an ethnicity shared by the Supreme Leader.
The applicant submitted that this again entails an unwarranted assumption, noting that the applicant was evidently a person of lower rank than the President. The applicant also submitted that the fact the driver was a mullah and connected with the regime does not mean that he would be free from prejudice or hostility towards Azeris. It might mean that he would be circumspect in expressing such views towards those in authority, but this would not leave him similarly inhibited around the applicant.
The Minister submitted that the applicant’s submission does not confront the implausibility of the applicant’s claim that the Authority picked up on. The Minister submitted that the Authority’s concerns about the credibility of the applicant’s account of a supposed mullah racially abusing the applicant because of his ethnicity which was shared with the Supreme Leader was a legitimate concern.
While reasonable minds may differ on the conclusion to be reached, I do not accept that the Authority’s view that an Iranian Islamic scholar would not insult someone on the basis of an ethnicity shared by the Supreme Leader is one that no logical or rational decision-maker could reach on the evidence before the Authority. The Authority might have better explained its reasoning process in relation to this finding, and why it considered that someone in the position of the mullah would not insult a person with the same ethnicity as the Supreme Leader. However, I cannot find that it was irrational or illogical, particularly when, on the evidence before the Authority, the applicant appears to have acknowledged the significance of the ethnicity of the Iranian leadership. This is reflected at [20] of the Authority reasons, where the Authority observed:
When asked by the delegate whether he had been harmed in Iran due to his Azeri ethnicity the applicant responded “Not in that sense because the whole country is in the hands of the Azeris”.
Particular (k) relates to the Authority’s conclusion that the recent claims of racist abuse were an embellishment, which further undermined the applicant’s credibility.
The applicant, as I understand his case, raised this particular as something that would primarily be relevant to materiality. To that extent, I make the same observation that I made above in relation to [13] of the Authority’s reasons, namely, that materiality only arises if I first find an error.
Counsel for the Minister noted at the hearing that the fundamental reason why the Authority had concerns with the applicant’s claim about the incident in October 2012 was because the applicant made no mention of being subject to racial insults by the mullah when discussing the claim at the arrival interview, where he otherwise provided a detailed account of the incident, and the arrival interview was only a few months after the relevant event. The Authority considered the recent claim of racial abuse to be an embellishment. Counsel for the Minister submitted that it was open to the Authority to rely on the omissions from the arrival interview, taking appropriate caution, and rely on omissions from otherwise detailed evidence as it did.
Counsel for the applicant referred to the caution in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO) at [56]-[57] and submitted that, to the extent that Counsel for the Minister suggested that even if the applicant’s other complaints with respect to [14] are made out, there is still a weighty finding as to the omissions from the arrival interview, that would be insufficient to avoid jurisdictional error.
Having regard to the caution in MZZJO, I consider it was open to the Authority in this case to have regard to the applicant’s failure to refer to the claim of racial abuse in his arrival interview, when his evidence about the claimed event at that interview was otherwise detailed.
Given that I have not found error in the other aspects of the Authority’s reasoning at [14], it is not necessary to address materiality in the context of the Authority’s reliance on the omissions in the arrival interview. However, it still has some relevance to the consideration of the Authority’s reasoning at [14], in that the Authority’s reliance on the applicant’s omissions at the arrival interview forms part of the context and collective reasons of the Authority for rejecting the applicant’s claim to have been racially abused by the mullah. Although I have found that the matters referred to in particulars (h), (i) and (j) did not demonstrate illogicality or irrationality having regard to the specific observations of the Authority, I may have been concerned if the Authority had relied solely on the fact that the applicant was not asked in his interviews the particular questions the subject of particulars (h) and (i) to reject his claim. The Authority did not, however, do that.
The Authority’s findings at [18]: particulars (l) and (m)
Particulars (l) and (m) relate to the Authority’s reasons at [18], addressing the applicant’s claim that the mullah made a false complaint against him.
Particular (l) relates to the Authority’s observation that the applicant provided no reason or conjecture as to why this mullah, who was a complete stranger, would lodge a false complaint against the applicant. The applicant submitted that the wider impact of the reasoning referred to above becomes apparent here. The applicant submitted that if the Authority had reached a different conclusion at [14] of its reasons, then there would have been a ready motive to be inferred, namely, ethnic prejudice.
The Minister submitted that the applicant reads the impugned finding out of context. The Minister submitted that the Authority referred to country information that indicated that the making of false claims against Iranians happened to victims who were political or human rights activists, bloggers or members of the media. By contrast, the applicant was a welder without a profile and of no interest to the authorities. It was in that context that the Authority found that the applicant had provided no reason that the mullah would lodge a false claim against him. The Minister further submitted that, in any event, the Authority rejected the applicant’s claim that the mullah made racist remarks against him.
Given that I have not found error in the Authority’s finding that the applicant’s claim of racial abuse by the mullah was an embellishment, it follows that the basis on which the applicant asserts error in the Authority’s observation at [18] falls away. It is not apparent from the materials before the Court that the applicant was asserting that the mullah targeted him for a false complaint because of his ethnicity. However, even if he was asserting this, given the rejection of the racial abuse claim by the Authority, there is no unreasonableness in the observation of the Authority in the opening sentence of [18] of its reasons.
Relevant to particular (m), the applicant noted the Authority’s reference at [18] to country information containing many examples of Iranians arrested, charged or detained on the basis of spurious or false claims, with a recurring theme that the victims involved were political or human rights activists, bloggers of members of the media. The applicant submitted that this country information alone was not sufficient to support the Authority’s conclusion that it was not plausible the applicant would be targeted as claimed and falsely charged with insulting the Supreme Leader. The applicant submitted that there may be a noticeable tendency for false charges where the accused is an activist or otherwise prominent, but this does not exclude the possibility that someone in more specific circumstances, such as the applicant in relation to a person of authority being the mullah, would face false charges.
The Minister submitted that it was open to the Authority, and not unreasonable or illogical, to conclude that the applicant’s claim that a false charge was made against him was implausible in circumstances where it was not supported by country information. The Authority did not require any evidence to reject the applicant’s claim and the Authority was not required to uncritically accept the applicant’s claims.
I accept the Minister’s submissions in relation to this ground. The Authority was entitled to have regard to country information and form the view that the applicant’s claim was implausible in the circumstances where it was not supported by the country information. The Authority provided an evident and intelligible explanation for its finding and it cannot be said that no logical or rational decision-maker could have reached that conclusion on the material before the Authority.
The applicant’s ground does not establish jurisdictional error.
CONCLUSION
Given that I have found that the applicant has not established that the Authority decision is affected by jurisdictional error, the judicial review application made to this Court must be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 25 October 2024
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