ERO17 v Minister for Immigration

[2018] FCCA 2181

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2181

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iraq – critical aspects of the applicant’s claims rejected – Authority relying in part on the failure of the applicant to mention certain claims at his initial entry interview – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 477

Cases cited:

CSR16 v Minister for Immigration [2018] FCA 474

MZZJO v Minister for Immigration (2014) 239 FCR 436; [2014] FCAFC 80

W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant: ERO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3249 of 2017

Judgment of: Judge Driver

Hearing date: 9 August 2018

Delivered at: Sydney

Delivered on: 5 October 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law Pty Ltd

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application as amended on 14 May 2018 and in court on 25 May 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3249 of 2017

ERO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 June 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Iraq.  On 26 January 2013 he arrived in Australian waters (on Christmas Island) by boat as an unauthorised maritime arrival.[1] 

   [1] Court Book (CB) 36, 40, 42, 104

4. On 3 February 2013 the applicant participated in an entry interview.[2]  Part of the interview transcript records some of the applicant’s claims.[3]

   [2] CB 1-14

   [3] CB 10

5. Between January and September 2013 the applicant was in detention centres, following which he was granted a temporary visa and released into the community on the Australian mainland.[4]

   [4] CB 40, 42

6. On 13 July 2016[5] the applicant lodged an application for a subclass 785 temporary protection visa.[6]  The application included a typed statement by the applicant which set out his claims.[7]  He claimed that:

   a)he was employed by the Ministry of Oil between 2006 and 2012;

   b)he was the supervisor of the purchasing department from 2008 to August 2011; and

   c)in that role, he was asked to sign inflated bills which he objected to “on moral grounds.”[8]

   [5] CB 82, 104

   [6] CB 15-81

   [7] CB 74-75

   [8] CB 133, [5]

7. The applicant also claimed that on or around 22 September 2011, he was travelling by car to Basrah for work when shots were fired at him and his vehicle caught fire. He also claimed that in March or April 2012, whilst in the office of a petrol station for his work, armed men fired at the office and he was hit in the left leg.

8. On or about July 2012, a car exploded near the French Consulate, narrowly missing his house. The applicant claimed he also received a message at the mosque from his manager, warning him that this would be the “last threat they would issue.”  He later visited a politician (Ammar Al Hakim) because he was aware that some of the people targeting him were associated with his political party.

9. The applicant claimed he left Iraq on 16 October 2012 and was dismissed from his employment (sometime) in 2012. He also claimed he would be targeted by his corrupt former colleagues and that his “outspoken nature” would make him a target on return to Iraq.[9]  In addition, he claimed to fear harm as a failed asylum seeker returning from a western country. The applicant claimed that since his departure, his mother had been harassed by people from “three Shia political parties” who asked about his whereabouts.[10]

   [9] CB 133, [5]

   [10] CB 139, [33]

10. In a decision dated 31 March 2017, the delegate refused the applicant’s temporary protection visa application. On 5 April 2017 the matter was referred to the Authority.[11]  No further information was obtained or received by the Authority and on 19 June 2017 it affirmed the decision under review.[12]

    [11] CB 101, 117

    [12] CB 129

The Authority’s decision

1. The Authority accepted that the applicant was employed in the Ministry of Oil[13] and he may have observed corruption in the workplace and drawn it to his managers’ attention.[14]  The Authority also accepted that the applicant was dismissed from his position after leaving Iraq because of his absence and found it was plausible that the company would discontinue his employment when it became apparent he was not returning to Iraq.[15]

   [13] CB 134, [7]

   [14] CB 134, [9]

   [15] CB 137 [23]-[24]

2. However, the Authority did not accept that:

   a)the incidents on 22 September 2011 and March or April 2012 involving his managers at the Ministry of Oil occurred, because it found the applicant’s responses at the temporary protection visa interview to the delegate’s concerns about why the applicant did not resign from his position following these incidents were “unconvincing and implausible”,[16] and the applicant had not mentioned either of the claimed incidents at the arrival interview;[17]

   b)the attempted bombing of his house in July 2012 occurred, because there was no mention in the independent country information of a bombing near the French Consulate in July 2012 and the applicant had not mentioned this claim at the arrival interview and, in fact, gave evidence that he lived in a peaceful area where there were no armed, political or religious groups operating;[18]

   c)the applicant was threatened by his manager at the mosque, because he did not mention this threat in either his arrival interview or temporary protection visa application and it was implausible that his manager, who would have ready access to the applicant at work, would “employ such a convoluted method to deliver a threat”;[19]

   d)the applicant met with Ammar Al Hakim, because his account of the meeting lacked specificity and, in any event, the applicant did not claim to have suffered harm as a result of the meeting;[20] and

   e)the applicant was outspoken and would continue to oppose corruption if he returned to Iraq, given that he had made no claim to have objected to corruption in any other areas of his life in Iraq and did not claim to have publicly participated in anti-corruption demonstrations that country information indicated had occurred in Iraq.[21]

   [16] CB 135, [14]

   [17] CB 136-137, [14]-[15]

   [18] CB 136, [18]

   [19] CB 137, [19]

   [20] CB 137, [22]

   [21] CB 138, [30]

3. In addition, the Authority found Shia militias had not attempted to harm the applicant prior to his departure from Iraq and, accordingly, it was not plausible that his former managers and Shia militias would seek to harm the applicant if he returned to Iraq more than four and a half years after his departure. The Authority found the applicant’s evidence in his temporary protection visa application and temporary protection visa interview about the harm he feared if he returned to Iraq was “embellished and inconsistent” when compared with the more contemporaneous and spontaneous evidence he provided in his arrival interview. The Authority noted that at the arrival interview (conducted less than three months after the applicant had departed Iraq) when asked why he left Iraq, the applicant said, amongst other things, that he “was looking for a better life”.[22]

   [22] CB 138, [31]

4. For these reasons, the Authority found that:

   a)it was “speculative in the circumstances” that the applicant would obtain re-employment in the same organisation.[23]  Given the passage of time (four and a half years) since his dismissal from employment and that he no longer had a role in the company, the Authority did not accept that the applicant faced a real chance of persecution from Shia militias or his managers, now or in the reasonable future;[24]

   b)the applicant would not face a real chance of harm for being a failed asylum seeker, a returnee from a western country or having resided in Australia, given the independent country information did not suggest that failed asylum seekers or returnees from the West were targeted for harm in Iraq;[25] and

   c)there was no real chance that the applicant would suffer persecution or harm in Al Nasiriyah as a result of sectarian conflict given the independent country information indicated that Shias in Shia-dominated provinces in southern Iraq were at low risk of generalised violence and there was nothing in the material to suggest that the applicant would face harm from Shia militias or Shia armed groups due to simply being a Shia.[26]

   [23] CB 139-140, [37]

   [24] CB 140, [38]

   [25] CB 140, [40]

   [26] CB 140, [42]

5. Accordingly, the Authority found the applicant did not meet s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[27] The Authority then assessed the applicant’s claims against the complementary protection criterion but found there was no real risk that the applicant would suffer significant harm if returned to Iraq. Accordingly, the Authority found the applicant did not meet s.36(2)(aa) of the Migration Act.[28]

   [27] CB 140, [43]

   [28] CB 141, [46]-[47]

The present proceedings

1. These proceedings began with a show cause application lodged on 18 October 2017. That application was filed outside the period prescribed in s.477(1) of the Migration Act and the applicant sought an extension of time under s.477(2). I granted that extension of time on 25 May 2018 and made orders for the filing of additional material. The applicant had filed an amended application on 14 May 2018 and, upon the granting of an extension of time, the applicant only relies upon the first ground of that application:

   1. The Immigration Assessment Authority (“the IAA”), on a number of occasions in its decision, relied, in a manner adverse to the applicant, on his failure during the entry interview to make a claim concerning a specified matter. For reasons explained in MZZJO v Minister (2014) 239 FCR 436 at [55]-[57], this reasoning process involved a misunderstanding by the IAA of its task and jurisdictional error.

2. In addition to the court book filed on 1 December 2017, I have before me as evidence the affidavit of Manel El-Ibrahim made on 13 June 2018, to which is annexed a transcript of the interview held on 20 February 2017 with the delegate.  The record of the applicant’s Irregular Maritime Arrival entry interview appears in the court book from page 1 to page 14.

Consideration

Ground 1 – did the Authority err in reliance on omissions at the entry interview?

Applicant’s submissions

1. As stated at [4] above, on 3 February 2013 the applicant participated in an entry interview. This event took place about a week after the applicant arrived by boat at Christmas Island,[29] which in turn followed a three month journey by the applicant through the United Arab Emirates and Indonesia in his attempt to enter Australia.[30]

   [29] 26 January 2013

   [30] CB 38, 40, 42

2. The Authority, on three occasions in its decision, relied, in a manner adverse to the applicant, on his failure to make a claim concerning a specified matter during the entry interview.  Specifically:

   a)the Authority stated at [14] and [15]:[31]

   For the reasons discussed below I do not accept that these two incidents occurred.  In my view the applicant’s responses in the TPV interview to the delegate’s concerns were unconvincing and implausible.  In addition, in his arrival interview in February 2013, less than a year after the second incident is alleged to have occurred, the applicant did not mention either attempt on his life … I consider it implausible that he would not think to mention even in a passing way claims that are now central to his protection visa application and material to his reasons for departing Iraq …

   b)the Authority stated at [18]:[32]

   I do not accept the applicant’s claim that an attempt was made to bomb his house in July 2012 as it is inconsistent with both country information and the applicant’s own evidence … This claim is also undermined by the applicant’s failure to mention this attempt on his life in his arrival interview and his evidence at that interview that he lived in a peaceful area where there were no armed, political or religious groups operating.

   c)the Authority stated at [19]:[33]

   Nor do I accept that the applicant received a last threat from his manager via the mosque … He made no mention of this threat in either his arrival interview or TPV application.  In addition, … it is also implausible that his manager who would have ready access to the applicant at work would employ such a convoluted method to deliver a threat.

   [31] CB 135-136

   [32] CB 136

   [33] CB 137

3. In MZZJO v Minister for Immigration[34] at [55]-[57] the Full Federal Court stated:

   We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based 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.

   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.

   [34] (2014) 239 FCR 436; [2014] FCAFC 80

4. As stated by the Full Federal Court at [56], “some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview”.  The applicant contends that in the present case, the repeated manner in which the Authority relied, in a manner against the applicant, on his “failure to mention details at the entry interview”, supports a conclusion that the Authority had “a misunderstanding of its task on review”, in the manner explained in MZZJO at [57].

5. A more detailed analysis of each occasion on which the Authority relied on the applicant’s “failure to mention details at the entry interview” is as follows.

Authority decision at [14] and [15]

1. The Authority did not accept that two incidents explained by the Authority at [11] (a shooting event in September 2011) and [12] (a shooting event in March or April 2012) occurred.  As reproduced above, the Authority gave two reasons for this finding as follows at [14]:

   a)“the applicant’s responses in the TPV interview to the delegate’s concerns were unconvincing and implausible”; and

   b)the applicant did mention either incident in his arrival interview.

2. In relation to the Authority’s finding that the applicant’s responses in the temporary protection visa interview were unconvincing and implausible:

   a)the applicant does not assert jurisdictional error in the Authority’s finding that “the applicant’s responses to the TPV interview to the delegate’s concerns were unconvincing”.  The “responses” to which the Authority refers are those summarised in the Authority’s decision at [12], which in turn appear at pages 7 to 9 of the transcript.  The applicant accepts there was a basis for a finding of “unconvincing”.  However, there is a notable difference between a finding of “unconvincing” in the present matter and a finding of “inconsistencies” in MZZJO at [55] and [57]. An “inconsistency” between two versions of an event given by a witness is an objective indication that the witness is not telling the truth. In contrast, a finding that a witness’s account of an event is “unconvincing” is a neutral and subjective finding. The fact that a witness’s account is “unconvincing” does not indicate the witness is not telling the truth. The finding merely indicates that the listener is not persuaded. A finding of “unconvincing” carries less adverse weight than a finding of “inconsistencies”; and

   b)the finding of “implausible” does not add anything to the finding of “unconvincing”.  As stated in W148/00A v Minister for Immigration[35] at [67] per Tamberlin and R D Nicholson JJ:

   Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.

   [35] (2001) 185 ALR 703

3. In relation to the Authority’s finding that the applicant did mention either incident in his arrival interview:

   a)this is said to be a “classic example” of the concern explained by the Full Federal Court in MZZJO;

   b)the Authority at [15] concluded that it was “implausible that [the applicant] would not think to mention even in a passing way claims that are now central to his protection visa application and material to his reasons for departing Iraq”.  The use of the word “implausible” indicates the significance the Authority placed on the applicant’s failure to mention the two incidents in his entry interview;

   c)the Authority at [14] and [15] spent the majority of the paragraphs discussing the applicant’s failure to mention the two incidents in his entry interview.  The space devoted by the Authority to this issue is said to support a conclusion that the principal reason the Authority did not accept that the two incidents occurred was because the applicant failed to mention them in his entry interview; and

   d)the entry interview in the present matter ran for 52 minutes.[36]  The entry interview in MZZJO ran for “over two hours”.[37]

Authority decision at [18]

[36] CB 1

[37] at [5]

1. The Authority did “not accept the applicant’s claim that an attempt was made to bomb his house in July 2012”.  The Authority gave as the two reasons for this finding that the claim “is inconsistent with both country information and the applicant’s own evidence”.

2. In relation to the Authority’s finding that the claim is inconsistent with country information, the applicant does not assert jurisdictional error in this finding.

3. In relation to the Authority’s finding that the claim is inconsistent with the applicant’s own evidence, the Authority explained in more detail that the applicant’s claim that an attempt was made to bomb his house in July 2012 “is also undermined by”:

   a)“the applicant’s failure to mention this attempt on his life in his arrival interview”; and

   b)“his evidence at that interview that he lived in a peaceful area where there were no armed, political or religious groups operating”.

4. In relation to the matter in [28(a)], this is again said to be a “classic example” of the concern explained by the Full Federal Court in MZZJO.  In relation to the matter in [28(b)], first, the entry interview record at CB 10 does not record evidence by the applicant that “he lived in a peaceful area”.  Secondly, question 7 in the entry interview was “Were there any armed groups, political groups, or religious groups operating in the area you lived?”  The applicant answered “No”.  This answer is said not to undermine the applicant’s claim that an attempt was made to bomb his house in July 2012.  These problems with the finding in [28(b)] are said to indicate the significance of the Authority’s reasoning based on the applicant’s “failure to mention details at the entry interview”.

5. In summary, although one of the reasons on which the Authority relied for rejecting the applicant’s claim was that the claim was inconsistent with country information, another reason was the applicant’s failure to mention the claim in his arrival interview.

Authority decision at [19]

1. The Authority did not “accept that the applicant received a last threat from his manager via the mosque”.  The Authority gave three reasons for this finding as follows:

   a)the applicant “made no mention of this threat in … his arrival interview”;

   b)the applicant “made no mention of this threat in … his TPV application”; and

   c)“it is also implausible that his manager … would employ such a convoluted method to deliver a threat”.

2. In relation to the finding at [31(a)], this is again said to be a “classic example” of the concern explained by the Full Federal Court in MZZJO.

3. In relation to the finding at [31(b)], the applicant accepts that the applicant did not mention the threat in his temporary protection visa application.[38]  However, the fact that the applicant did not mention this detail in his temporary protection visa application does not mean the threat was not made.

   [38] at CB 74-75

4. In relation to the finding of implausibility [31(c)]:

   a)as stated in W148A/00A at [67] as reproduced at [24(b)] above:

   Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant; and

   b)a finding of implausibility is a subjective finding.  Such a finding is not as clear as a finding of “inconsistency” in MZZJO, which is an objective finding.

Concluding comment

1. As stated above, the Authority, on three occasions in its decision, relied in a manner adverse to the applicant, on his failure to make a claim concerning a specified matter during the entry interview.  If each occasion is considered individually, the occasion may not constitute jurisdictional error based on the test explained in MZZJO.  However, the applicant contends that the cumulative combination of the three occasions supports a conclusion that the Authority has relied on the applicant’s failure to mention matters in the entry interview in a manner which constitutes jurisdictional error.

Minister’s submissions

1. The applicant identifies four paragraphs of the Authority’s decision as indicating an approach to fact-finding demonstrative of error. First, at [14]-[15], the Authority relied in part upon the applicant’s failure in the entry interview to mention two specific attempts on his life (in September 2011 and in March or April 2012) in forming a conclusion that the incidents did not occur. Secondly, at [18] the Authority relied in part on the applicant’s failure in the entry interview to mention the 2012 bombing near the French Consulate which the applicant claimed was an attempt to bomb his house. Thirdly, at [19] the Authority relied in part on the applicant’s failure in the entry interview to mention that his manager had made a last threat to him via the mosque.

2. The applicant cites the pertinent paragraphs of MZZJO, reproduced at [20] above. The Minister emphasises that there is nothing in the Full Federal Court’s reasons that suggests that jurisdictional error arises (let alone that it necessarily arises) simply because the Authority relies upon what an applicant has said, or has not said, during an entry interview. The Full Federal Court opines that “some caution” should be exercised by decision-makers in relation to omissions at entry interview, and that in that particular case the Court “may have been inclined to see this as involving a misunderstanding of its task on review”.

3. In MZZJO the Full Federal Court found the Tribunal’s approach to have been open because the Tribunal relied upon other features of the applicant’s evidence in forming an adverse view of the applicant’s credit. What is said to be apparent from a careful examination of the Authority’s reasons in the present matter at [14]-[15], [18] and [19] of the decision record is that the Authority relied in each of these paragraphs on other factors supporting the conclusions stated. For instance, at [14], the Authority found the applicant’s responses to the delegate’s questions at interview in relation to the shooting incidents to have been “unconvincing and implausible”. At [18] the Authority found that the applicant’s claim regarding the 2012 bombing incident near the French Consulate was inconsistent with country information and the applicant’s own evidence. At [19] the Authority found that it was implausible that the applicant’s manager would have employed such a convoluted method to deliver a threat. For this reason, the kind of jurisdictional error mentioned in MZZJO at [57] would not arise in the circumstances of this case.

4. The Minister contends that, even had the Authority relied in the above paragraphs only upon the failure of the applicant to mention the identified claims at the entry interview, this would not of itself result in a finding of jurisdictional error, and MZZJO is not authority for any such proposition. In CSR16 v Minister for Immigration,[39] Bromberg J considered MZZJO and stated by reference to the circumstances of that case, at [48]-[50]:

   The appellant contended that his claim concerning the shooting incident in August 2008 was a discreet and important claim that should not have been rejected solely by reference to his answers given in his entry interview. By relying solely on the appellant’s omission at the entry interview to determine the credibility of the shooting claim, the appellant contended that the Authority misunderstood its task on the review.

   The Minister contended that, to say that the sole reason for the credibility finding was the failure of the appellant to have raised the shooting at the entry interview, mischaracterises the Authority’s approach. That was so because in making its finding the Authority also relied on the fact that the appellant had not provided medical evidence to substantiate the claim that he sustained his injuries as a result of being shot in August 2008.

   I do not accept the appellant’s contention that the Authority solely relied upon what was not said at the entry interview. Even if that had been the case, I do not consider that, on its own, that circumstance would have sufficed to demonstrate that the Authority misunderstood its task. As the primary judge noted at [72], the Authority listened to a recording of the entry interview and gave careful consideration to what occurred. Even if it were the case that an incautious approach (of [the] kind referred to in MZZJO) was demonstrative of jurisdictional error, the reasons given by the Authority do not suggest that it was incautious in evaluating the significance of the appellant’s failure to refer to the August 2008 incident during the entry interview.

   [39] [2018] FCA 474

5. As is apparent from his Honour’s interpretation of MZZJO, the potential for jurisdictional error referred to by the Full Federal Court was not in and of itself the reliance by a decision-maker on what was said or not said during the entry interview, but was directed towards a decision-maker who adopts an “incautious approach” towards considering what was said or not said during the entry interview. In any event, it is necessary in each case to have careful regard to the findings of the decision-maker. In the present matter, the Authority gave detailed reasons for its reliance upon the silence of the applicant at the entry interview about critical and central claims for his protection visa.[40]  The Minister submits that no error is demonstrated.

   [40] CB 136, [15]

6. An interconnected complaint of the applicant is that the Authority’s use of the word “implausible” in describing aspects of the applicant’s claims did not constitute a “finding” but was more in the nature of a “passing comment” by reference to W148/00A. Whilst the Authority does adopt the word “implausible”, for instance at [14], [15] and [19], the Authority’s findings must be read as a whole. The Minister submits that it is plain, when read fairly and in context, that the Authority was not expressing “passing comments” or expressing provisional views about the applicant’s claims and evidence. The Tribunal’s findings were absolute and supported by detailed reasons. It is not a jurisdictional error, and the Minister does not take the applicant to be suggesting that it is, for the Authority to have rejected some of the applicant’s claims partly on the basis that it considered the evidence to be implausible.

Resolution

1. I accept from MZZJO at [57] that a decision-maker may fall into error by relying only on a failure to mention details at an entry interview to support an adverse credibility conclusion. This is especially so in the case of a decision of the Authority where the Authority’s concern was not shared by the delegate and an adverse credibility conclusion based on silence at an entry interview may constitute a new issue. In such a circumstance, a failure by the Authority to disclose (or consider disclosing) the new issue to the applicant and invite some comment on it may be unreasonable. This is not such a case. First, it cannot be disputed that the Authority relied on a good deal more than the applicant’s silence on particular claims at his initial entry interview in order to support its adverse credibility findings. Secondly, the applicant does not in this case assert any error by the Authority in the application of its statutory procedural code.

2. The applicant contends in Ground 1 that the Authority erred in rejecting the applicant’s claims by relying on his failure to mention or raise claims during his entry interview with respect to:

   a)the incidents in September 2011 and March/April 2012 involving his managers at the Ministry of Oil (the 2011 and 2012 incidents);[41]

   b)the attempted bombing of his house in July 2012 (the attempted house bombing);[42] and

   c)the threat by his manager at the mosque (the mosque threat).[43]

   [41] CB 136-137, [14]-[15]

   [42] CB 136, [18]

   [43] CB 137, [19]

3. The applicant relies on the Full Federal Court’s decision in MZZJO at [55]-[57], which stands for the proposition that the sole reliance of the Tribunal, and by analogy the Authority, on a failure to mention claims at an entry interview could be seen as a misunderstanding of the Tribunal’s task on review. In MZZJO, the Full Federal Court held the Tribunal did not err in the manner now alleged by the applicant in Ground 1 because, in rejecting the appellant’s claim in MZZJO, the Tribunal also relied upon inconsistencies arising from information presented by the appellant after the entry interview.

4. The applicant’s complaints are not substantiated.  In relation to each of the three matters the applicant now asserts the Authority rejected by erroneously relying on his failure to mention those claims at the entry interview, the Authority also considered and relied upon additional matters in rejecting those claims.[44]

   [44] In that regard, I accept the Minister’s submissions set out at [41] above

5. First, with respect to the 2011 and 2012 incidents, the Authority also found that the applicant’s responses in the temporary protection visa interview to the delegate’s concerns about why the applicant did not resign from his position following these incidents were “unconvincing and implausible”.[45]

   [45] CB 136, [14]

6. Secondly, in rejecting the applicant’s attempted house bombing claim, the Authority also relied on the absence of support in the available country information for this claim, and the applicant’s own evidence.[46] The Authority noted that there was country information to indicate that a bombing had occurred in September 2012 in Al Nasiriya, and reasoned that it may be expected other bombings would also be reported, had they occurred. Further, the Authority noted the applicant’s evidence that he “lived in peaceful area where there were no armed, political or religious groups operating”.

   [46] CB 136, [18]

7. Thirdly, in relation to the mosque threat claim, the Authority found it was “implausible” that the applicant’s manager would “employ such a convoluted method” to deliver a threat to the applicant at a mosque, given his manager would have ready access to the applicant at work.[47]

   [47] CB 137, [19]

8. Accordingly, the asserted MZZJO-type errors are not made out because the Authority did not solely rely upon the applicant’s failure to mention the relevant claims at his entry interview as the basis for rejecting them. The Authority’s reference to multiple reasons to support its rejection of claims made by the applicant indicates it was aware of the need to exercise caution “in relation to omissions by applicants of matters at entry interview”. The Authority’s decision does not indicate that it misunderstood its statutory task on review and the complaint in Ground 1 cannot be made out.

Conclusion

1. The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  5 October 2018