Evi19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1105
•24 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1105
File number(s): SYG 3197 of 2019 Judgment of: JUDGE HUMPHREYS Date of judgment: 24 May 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection visa – whether the finding made by the second respondent was unsupported by the evidence and failed to take account of or misconstrued evidence provided by the applicant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 477(2) Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
ASB17 v Minister for Home Affairs (2019) 268 FCR 271
AVQ15 v Minister for Immigration [2018] FCAFC 133
AWU16 v Minister for Immigration and Border Protection [2020] FCA 513
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
BJO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 189
CBY15 v Minister for Immigration [2020] FCA 878
Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v We Shan Liang (1996) 185 CLR 259
Navoto v Minister for Home Affairs [2019] FCAFC 135
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZHYH v Minister for Immigration and Border Protection (No3) [2019] FCA 589
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Number of paragraphs: 93 Date of last submission/s: 6 May 2021 Date of hearing: 6 May 2021 Place: Parramatta Counsel for the Applicant: Mr Poynder Counsel for the Respondent: Mr Swan ORDERS
SYG 3197 of 2019 BETWEEN: EVI19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
24 MAY 2021
THE COURT ORDERS THAT:
1.Grant leave for an extension of time to be granted pursuant to s 477(2) of the Migration Act 1958 (Cth).
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the amount of $9000.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Iran. The applicant first arrived in Australia as an authorised maritime arrival on 6 July 2013.
On 9 August 2017, the applicant applied for a temporary protection visa. On 17 May 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his protection visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 17 June 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority’s decision is relatively short. At paragraph 6 of its decision, the Authority set out the applicant’s claims. They may be summarised as follows:
•He left Iran after conflict with Sepah Pasdaran. They came to his home when they were having a family party for his son’s first birthday. Ten people attacked the house and hit the applicant’s father, who is old, so the applicant got upset and pushed Sepah police officer. After that Sepah took the applicant in the car by force and arrested him for 45 days. Intelligence used to come and hit him on his hands. He was tortured, handcuffed hung from his fingers and has a broken finger and sore shoulder.
•A shift soldier offered to let him escape for 2 million Toman. On the applicant’s Court day, the soldier opened his handcuffs and the applicant escaped. The name of the person who helped him escape was Mehdi Zimak. The applicant’s older brother paid him the 2 million. He was not charged as he escaped on the date of court and did not go to Court.
•The applicant went to Tabriz for a year and to Kermasche after that.
•The same people have been to his family home more than 10 times. They took his ID card and driver’s licence. He fears arrest, detention, torture and mistreatment.
·The applicant is fearful for his Australian citizen partner and their children if he returns to Iran as he is the principal breadwinner as a painter and decorator working six days a week. He fears his family will not be able to safely migrate and resettle in Iran. His Australian wife is Christian and they will suffer if his protection visa is refused and he has to return to Iran.
•He departed Iran illegally on his friend’s passport but had no difficulties going through the airport.
•At the protection interview he also added that he liked and shared some Facebook posts.
At paragraph 28 of its decision, the Authority concluded that having considered all of the applicant’s evidence, the applicant was not a credible witness and that he had fabricated his claims in their entirety. The Tribunal was not satisfied that the applicant faced a real chance of harm on return to Iran on the basis of his experiences, personal circumstances, connection to his Australian family, his religion, or his political opinion.
At paragraph 32 and onwards of its decision, the Authority accepted that the applicant may be identified as a failed asylum seeker upon return to Iran. The Authority noted that country information indicated that Iran has historically refused to issue travel documents to allow the involuntary return of its citizens from abroad. As the applicant arrived before a 2018 memorandum between the two countries, the applicant could not be forcibly returned to Iran. At paragraph 35 of its decision, the Authority noted that international observers report authorities in Iran as having little interest in prosecuting failed asylum seekers for activities outside Iran, including in relation to protection claims. The Authority was not satisfied that the applicant would face harm on account of being a failed asylum seeker returning from a Western country.
At paragraphs 39 through to 42 of its decision, the Authority considered complimentary protection assessment grounds. For the same reasons, the Authority concluded that the applicant was not at real risk of significant harm if he were to be separated from his Australian family and returned to Iran.
GROUNDS OF JUDICIAL REVIEW
An extension of time is sought for the filing of the Initiating Application on the basis that the applicant had no knowledge of judicial review as he was either in immigration detention and/or prison and was not able to access legal advice in regards to the matter.
The grounds of judicial review are set out in an amended Initiating Application filed with the Court on 29 April 2021. A single ground is relied upon with some 14 particulars. The single ground is as follows:
Ground One:
The finding made by the second respondent (the IAA) at [11], that “the applicant’s account was vague, lacked details and credibility and was inconsistent”, and its consequential finding, at [28], that “the applicant is not a credible witness and has fabricated his claims in their entirety”, was unsupported by the evidence and failed to take account of or misconstrued evidence provided by the applicant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.
Particulars:
1. The claim by the IAA, at [12], that there was an inconsistency between the applicant’s description of music at a birthday party raided by Sepah (the Iranian authorities) as being “loud”, in his arrival interview, and as not being loud, in his subsequent statement, was objectively irrelevant to the fact-finding process to be undertaken by the IAA and did not support any suggestion that the applicant was not telling the truth about his claims for protection.
2. The claim by the IAA, at [12], that “the applicant had difficulty remembering when Sepah raided the house”, was not based on a fair or accurate assessment of the applicant’s evidence, and there was no evidentiary basis for this assertion.
3. The claim by the IAA, at [13], that “The applicant’s description of the raid, his arrest and detention was vague and lacked details”, was not based on a fair or accurate assessment of the applicant’s evidence, and there was no evidentiary basis for this assertion. Neither was the claim by the IAA, at [13], that the applicant “did not remember what the authorities said or did when he was arrested”, based on a fair or accurate assessment of the applicant’s evidence, and there was no evidentiary basis for this assertion.
4. The claim by the IAA, at [14], that “the applicant’s description of his escape lacked details and credibility”, was not based on a fair or accurate assessment of the applicant’s evidence and there was no evidentiary basis for this assertion. Further, the “difficulty” that the IAA claimed to have had in believing the applicant’s account of his escape was based on an unfounded assumption about the level and competence of security for prisoners being transferred to court in Iran which had no evidentiary basis, and was not based on any country information or identified expertise in the IAA upon which to base such an assertion.
5. The claim by the IAA, at [15], that “the applicant’s account of his identity documents being taken by authorities was inconsistent”, was not based on a fair reading of the evidence at the protection visa interview and involved a misconstruction of that evidence. The applicant had earlier said that his identity documents were taken by Sepah when they had raided his house (CB 12; CB 82; Transcript at 7:37-45). The applicant’s evidence was that he found out about this afterwards, when he spoke to his mother from Tabriz or Kermanshah (CB 118; Transcript at 19:22-31). There was no inconsistency in the evidence such as to warrant the rejection by the IAA of the applicant’s account on this issue.
6. The claim by the IAA, at [16], that the applicant had his original ID card when it was translated after he arrived in Australia, such that it rejected his account of the original ID card and other documents having been taken by the authorities in Iran, was based on a misconstruction of the evidence. It was apparent from the decision of the first respondent (CB 112) that the identity documents provided by the applicant were copies, and that the documents sighted by the translator (CB 74-76) were “originals” of the copies.
7. The claim by the IAA at [17] that it was “not credible”, if the applicant had escaped the Iranian authorities on the way to court, that he would not have been found in Tabriz or Kermasche before he departed Iran in mid-2013, was based on an unfounded assumption about the level of competence of the authorities in Iran to be able to locate an escapee who had relocated to cities which were distant to Tehran, and was not based on any country information or identified expertise in the IAA upon which to base such an assertion.
8. The claim by the IAA at [19], that “When asked about the warrants and claimed visits to his parents’ home, the applicant avoided the question and said after a while he told his parents he did not want to talk about and put it behind him”, was not based on a fair or accurate assessment of the applicant’s evidence; there was evidence in the protection visa interview that the applicant evaded questions on this issue. Further, there was no basis for the assertion by the IAA at [20], that the country information in the referred material stated that, “if not found at home summons are published in the paper and only left with family members if they acknowledge the accused whereabouts and undertake to deliver it to the accused”. The finding by the IAA at [20] that an arrest warrant had not been issued against the applicant therefore lacked any evidentiary basis.
9. The claim by the IAA at [21], that it was “difficult to believe” that the applicant had not had some contact with his wife and child for two years “to allay their concerns”, was based on an unfounded assumption about the nature of the relationship between the applicant and his wife, which lacked any evidentiary basis. Further, the claim did not take account of evidence that the applicant was divorced from his former wife whose whereabouts was unknown, and that his six year old child was living with his parents (CB 5-6).
10. The claim by the IAA at [22], that the applicant gave inconsistent evidence about the timing of his divorce, stating in his arrival interview that he was already divorced and in his protection visa interview that his wife divorced him “after his absence from Iran”, is based on a misconstruction of the evidence and does not amount to an inconsistency to suggest that the applicant was “telling untruths”. The evidence was that the applicant had stated in his protection visa interview that his wife had divorced him “after his absence from Tehran” (Transcript at 9:34-38), which was well before his arrival in Australia.
11. The claim by the IAA at [22], that the applicant gave inconsistent evidence about the years of schooling that he had completed, was objectively irrelevant to the fact-finding process to be undertaken by the IAA and did not support the suggestion that the applicant was “telling untruths” about his claims for protection.
12. The claim by the IAA at [23], that the applicant “provided little information of why the friend would provide him his passport, the circumstances of him providing the passport or what happened to the friend afterwards”, was not based on a fair or accurate assessment of the applicant’s evidence and there was no evidentiary basis for this assertion. In fact, the applicant gave detailed information about his passport in his arrival interview (CB 18-19) and in his protection visa interview (5:20-7:30). Further, the claim by the IAA at [23] that it was “not credible” that the applicant could leave through Tehran airport and pass through other countries “on a passport that was not his” was based on unfounded assumptions about the level and competence of security at Tehran airport and other countries where a person is travelling on a genuine passport and impersonating the real passport holder. The claim was also not based on any relevant country information or identified expertise in the IAA.
13. The claim by the IAA at [26], that it did not accept the applicant had shared or liked any anti-government Facebook posts, was objectively irrelevant to the fact-finding process to be undertaken by the IAA because the applicant did not base any claim for protection on such posts. Further, this did not support any suggestion that the applicant was not telling the truth about his claims for protection.
14. The claim by the IAA at [27], that it did not accept that the applicant faced a real chance of harm or any adverse consequences arising from his failure to enlist for compulsory military service, was objectively irrelevant to the fact-finding process to be undertaken by the IAA because the applicant did not base any claim for protection on any such failure. Further, this did not support any suggestion that the applicant was not telling the truth about his claims for protection.
THE APPLICANT’S SUBMISSIONS
Item 1 of the applicant’s single ground of judicial review, concerns the volume of the music at the birthday party that was raided by Sepah. At paragraph 12 of its decision, the Authority records that the applicant claimed in his statements that the music was loud and that it was 11.00pm when the house was raided. However, at the applicant’s protection interview, the applicant claimed that the music was not loud and he had not disturbed anyone. The Authority noted that the applicant apparently had difficulty remembering when Sepah raided his house, but finally said that it was more than one and one half hours after the party had started. The Authority also noted that, the applicant claimed he had developed loss of memory as he had lost his son in Australia. While accepting that the applicant’s son had passed away in Australia, the Authority noted that there was no medical evidence that the applicant had developed loss of memory. Further, the Authority found it difficult to believe that the applicant would recall so little, of the trigger and key event of his protection claims.
Counsel for the applicant concedes that in the applicant’s arrival interview and his statutory declaration, the applicant said that they had “loud music” at the party. In his protection visa interview, the applicant said the music “wasn’t loud”. It was submitted that this is a very minor discrepancy and of no relevance. In any event, how does one measure whether the music was “loud”? Any inconsistency here was “objectively irrelevant to the fact finding of [the] decision maker: (see; ASB17 v Minister for Home Affairs (2019) 268 FCR 271 (“ASB17”) at [44] and did not support a finding that the applicant was not telling the truth.
Item 2 complaints about the finding by the Authority at paragraph 12 of its decision, “that the applicant had difficulty remembering when Sepah raided his house’ submitting that it was not based on a fair or accurate assessment of the applicant’s evidence and there was no evidentiary basis for this assertion. At page 13 of the transcript of the protection visa interview, the applicant stated that when he was asked how long the party had been going, the applicant stated “about one, one half hours pass the start, but I’m not sure”. The interviewing officer replied “that’s okay, I know it’s a while ago”. There is no suggestion that this was inconsistent with the time of around 11.00 pm, given that the event occurred some years earlier to the arrival interview.
Item 3 claims that the finding by the Authority at paragraph 13 of its decision that the ‘applicant’s description of the raid, his arrest and detention was vague and lacked details” is not based on a fair or accurate assessment of the applicant’s evidence and there was no evidentiary basis for this assertion. Counsel for the applicant submitted that the applicant was in the hands of the delegate’s questioning, and he was responsive to each question. The applicant knew the reason for the party, the attendees and that there was music, no alcohol and that the raid was by 10 Sepah officers, about one and a half hours after the party started. Counsel for the applicant submitted that the applicant gave a detailed account of how they pushed his father and he pushed them back and was subsequently arrested. The applicant claims “over and over they tortured me” including breaking his finger. It was submitted that the applicant was not asked by the delegate to expand on any of this, or provide any further details and there was no evidence that he was unable to provide a detailed account of what occurred. In the applicant’s arrival interview, the applicant included other details that were not touched on or developed upon by the delegate, including that he was hung from his fingers, that he received a sore shoulder and that a person who tortured him was tall, with both of his ears “broken”.
It was submitted that it was not accurate, or a fair description of the evidence for the Authority to have said “he did not remember what the authorities said or did when he was arrested”. It was submitted that the applicant would not have known what happened to other people as he was being bundled out of the door and into a car and that he was in shock. It was submitted that this does not amount to evidence that “he did not remember what the authorities said or did when he was arrested”. It is merely evidence that the applicant could not remember specifically, whether the Sepah had “taken things” or “questioned other people” when they grabbed him and took him away.
Item 4 asserts that the Authority’s finding at paragraph 14 of its decision that, “the applicant’s description of his escape lacked details and credibility” was not based on a fair or accurate assessment of his evidence and there was no evidentiary basis for this assertion. Further, the “difficulty” that the Authority claimed to have had in believing the applicant’s account of his escape, was based on an unfounded assumption about the level of competence of security for prisoners being transferred to Court in Iran, which had no evidentiary basis, and was not based on any country information identified, or expertise in the Authority upon which to base such an assertion.
The applicant was again in the hands of the delegate and was responsive to each question. The applicant explained how he had “talked with” the soldier who he had bribed and as he was being transferred to Court, the soldier “opened by handcuffs” and he escaped. The applicant said he then went to the bus terminal. The delegate did not pursue the applicant’s account of this incident any further. The applicant had already provided other details of his escape which were not touched upon in the protection visa interview, including the identity of the person who helped in the escape, and that he was bribed to assist, with 2 million Toman.
Item 5 asserts that “the applicant’s account of his identity documents being taken by authorities was inconsistent” was not based on a fair reading of the evidence of the protection visa interview and involved a misconstruction of that evidence. It was submitted that the Authority was correct to observe any statement that the applicant had said that Sepah had taken his national ID card and driver’s license, when they had been to his house. The applicant repeated this in his protection visa interview, clarifying that they were taken when they raided his house for “first time”. The applicant did not say, as alleged by the Authority, that the documents “were taken later from his parent’s home, when he was Tabriz”. It was submitted that is clear from the exchange, that the applicant said “at the time” he was in Tabriz, he talked to his mother who told him that the authorities were taking his documents. On the evidence, this was the first time he had spoken to his mother and found out that the authorities had taken his documents on the day of the first raid. It was submitted that there was no inconsistency in the applicant’s evidence on this point.
Item 6 asserts that the claim by the Authority at paragraph 16 of its decision, that the applicant had his original ID card when it was translated after he arrived in Australia, such that it rejected his account of the original ID card and other documents having been taken by the authorities in Iran, was based on a misconstruction of the evidence. It is apparent from the decision of the first respondent that the identity documents provided by the applicant were copies, and that the documents cited by the translator were “originals” of the copies. There is no evidentiary basis for the Authority’s refusal to accept that the applicant did not have the original ID documents or that his documents were taken by the authorities.
Item 7 asserts that at paragraph 17 of the Authority’s decision, it was “not credible” that if the applicant had escaped the Iranian authorities on the way to Court, that he would not have been found in Tabriz or Kermasche before he departed Iran in mid-2013, was based on an unfounded assumption about the level of competence of the authorities in Iran to be able to locate an escapee who had relocated to cities that were distant from Tehran. Further, it was not based on any country information or identified expertise in the Authority upon which to base such an assertion. It was submitted that the two cities were some considerable distance from Tehran and there was no country information upon which to base this critical finding.
Item 8 asserts that the claim by the Authority at paragraph 19 of its decision that “when asked about the warrants and claimed visits to his parents’ home, the applicant avoided the question and said after while he told his parents he did not talk about and put it behind him” was not based on a fair and accurate assessment of the applicant’s evidence. Further, there was no basis for the assertion at paragraph 20 of the Authority’s decision that the country information in referred material stated that if a person “is not found at home summons are published in the paper and only left with family members if they acknowledge the accused whereabouts and undertake delivery to the accused”. It was submitted that the finding by the Authority that an arrest warrant had not been issued against the applicant, therefore lacked an evidentiary basis.
It was submitted that when asked about any other contact with Iranian authorities in relation to the applicant, he answered directly that when he first arrived in Australia, his parents told him “they will come here, and… they will question your friends about your whereabouts”. In relation to the arrest warrants, the applicant was asked whether he thought there was a warrant for his arrest back in Iran and he said “yes, they have, they had issued a few arrest warrants to send it to our house”. The applicant was asked who told him this and he said, “his mother”, adding that they had also been stalking their house and asking questions of his family and friends. The applicant was asked if he had seen the arrest warrant himself, and he answered directly, “No”. The applicant was asked if he had a copy of it, and he said “No”. There was no evasion or lack of interest in his arrest warrants here.
Item 9 deals with the claim by the Authority at paragraph 21 of its decision, that it was “difficult to believe” that the applicant had not had some contact with his wife and child for two years” to allay their concerns” was based on an unfounded assumption about the nature of the relationship between the applicant and his wife, which lacked an evidentiary basis. Further, the claim did not take account of evidence that the applicant was divorced from his former wife, her whereabouts were unknown and that his six-year-old child was living with his parents. It was submitted that it is to be inferred that the contact that the applicant had with his parents, was to let them know his whereabouts, and was also for the benefit of the child. In the interview, the applicant confirmed that he was divorced from his former wife and he had not been in contact with her. The applicant was, however, in contact with his child, reinforcing the view that the child was living with his parents.
Item 10 concerns the timing of the applicant’s divorce. The Authority was incorrect to say at paragraph 22 of its decision that in the applicant’s protection visa interview, he said that his wife divorced him after his absence from Iran. In fact, the applicant said that his wife divorced him after his absence from Tehran. This makes perfect sense of the applicant’s answer in his arrival interview, when he said that he was already divorced at the time of his arrival in Australia.
Item 11 concerns the issue of when the applicant started work in his father’s vegetable market business. The Authority at paragraph 22 of its decision, also considered the applicant’s claim in his 2017 statement that he only had three years of primary education and started to work in his father’s vegetable market business when he was nine years old. The Authority considered that this was inconsistent with the applicant’s statement in his arrival interview where he said that he went to school for five years from 1990 to 1996 before leaving school after year seven. The Authority considered this issue relating to the timing of the applicant’s divorce, as “examples of the applicant telling untruths”. However, neither the timing of the applicant’s divorce, nor the number of years that the applicant spent in primary school, had anything to do with his claim for protection. Any discrepancy, was so minor, as to be of no material relevance to the applicant’s credibility.
Item 12 concerns the use of the applicant’s friend’s passport. It was submitted that the Authority was incorrect to say at paragraph 23 of its decision, that the applicant “provided little information of why the friend it would provide him with his passport, the circumstances of him providing the passport or what happened to the friend afterwards”. In the applicant’s arrival interview, he said that he had travelled from Tehran to Malaysia and Indonesia on a passport given to him by his friend Reza. The applicant claimed that Reza, “who was similar looking” gave him the passport after “I explained my situation and he checked that it was true”. The information the arrival form, is of course merely a summary of what the applicant actually said. The actual words were more expansive, as can be seen by the transcript. In the protection visa interview, the applicant was asked a series of questions about the passport, in which he was responsive and gave evidence which was entirely consistent with what he had said in his arrival interview six years previously.
It was submitted that the applicant was entirely in the hands of the interviewer on both occasions. All that the applicant could do, was answer the questions directly and responsively which he did. There was no evidence that the applicant provided “little information” about obtaining the passport; in any event, the applicant was never even asked what became of the friend who had given him the passport.
It was further submitted that the Authority’s finding at paragraph 23 of its decision, that it was “not credible the applicant could leave through so many checkpoints through Tehran airport on a passport that was not his and also through Turkey and other countries and the passport was not his”, was faulty. The country information referred to by the Authority here, which is at footnote 30 of the primary decision, mainly relates to forged or counterfeit passports, which was not the case here, where the applicant left Iran on a genuine passport. The only reference to living Iran on a genuine identification document with the intention of impersonating another person is in the Department of Foreign Affairs and Trade (“DFAT”) report at paragraph 5.37. This acknowledges that this may be possible, although difficult. The references made by the Authority to the evidence in relation to the passport did not provide any reasonable basis for it to find at paragraph 25 of its decision that it was “not credible” that the applicant departed Iran illegally, or on his friend’s passport.
Item 13 concerns the sharing of Facebook posts. The issue that the Authority had with the applicant’s evidence about Facebook posts, related to a short exchange towards the end of the protection visa interview where the question was raised by the delegate. The Authority rejected this “claim”, yet the applicant never made any claim that he was at risk because of such posts either before, during or after the protection interview. The exchange was relevant to the applicant’s claims and said nothing about his credibility.
Item 14 concerns the applicant’s outstanding military service. In much the same way, the issue that the Authority had at paragraph 27 of its decision, with the applicant’s evidence that he had not served any compulsory military service was based on another short exchange at the end of the protection interview. The delegate raised the question and the applicant responded with an answer which was consistent with his arrival interview, and also explained why he had not served any military service. In his protection visa application the applicant identified that he still owed military service. However, the applicant never claimed that he was at risk because of this, as was noted by the Authority at paragraph 27 of its decision. The issue of military service was also irrelevant to the applicant’s claims and said nothing about his credibility.
THE FIRST RESPONDENT’S SUBMISSIONS
Counsel for the first respondent notes that the applicant now relies upon a single ground of judicial review which asserts that it was legally unreasonable for the Authority to find that the applicant’s account of key events in his claims for protection, were “vague, lacked details and credibility and was inconsistent”. In terms of the 14 particulars, wherever possible, these have been dealt with together.
Issues 1, 11, 13 and 14 are assertions that the findings made by the Authority were irrelevant. Issue 1 refers to the Authority’s finding at paragraph 12 of its decision that the applicant gave inconsistent evidence about the volume of the music at the party from which his claims for protection stemmed. The applicant concedes that he provided inconsistent evidence, but asserts that inconsistency was objectively irrelevant.
While some inconsistencies in the applicant’s evidence may be irrelevant, others may reflect on the applicant’s credibility or reliability: (see; ASB17 at [44]). The Authority accurately described claim of the party in September 2011 as the “trigger and key event of (the applicant’s) protection claims. In that context was plainly open to the Authority to find that the applicant’s shifting evidence about the facts of such a significant event reflected adversely on his credibility. The Authority’s reasons reveal that it assessed the inconsistency as relevant for that reason, and that it did more than simply “attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility”: (see; ASB17 at [44]).
Issue 11 refers to the Authority’s finding at paragraph 22 of its decision that the applicant provided inconsistent evidence about his education history, because his statement claimed that he had completed only three years of primary school, but in the arrival interview he said he had completed year seven of secondary school. The Authority described the relevance of this inconsistency, by finding that this was an example of the applicant “telling untruths”. That finding was open, and while there is no indication that the Authority placed any particular weight on it, it would not have been unreasonable to attach some significance to a finding that the applicant lied to the Department about his background. Both the impugned findings of inconsistencies and issues 1 and 11 were capable of informing the Authority’s assessment as to whether or not the applicant’s claims should be believed: (see; BJO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCAFC 189 at [155]).
Issue 13 takes issue with the Authority’s finding at paragraph 26 of its decision that a claim made by the applicant during the protection interview, that he shared anti-regime Facebook boasts, was not credible. Issue 14 refers to the finding that the applicant did not face harm arising from a failure to complete compulsory military service. It was submitted that contrary to the applicant’s contention, there is no indication that either of those findings informed the Authority’s general credibility finding at paragraph 11 of its decision. It is clear from the context that the term “account” at paragraph 11 of the decision record, refers to the applicant’s account of the central claim described immediately prior at paragraph 10, that is the Sepah raid on the birthday party and the applicant’s ensuring arrest, detention and escape.
It was submitted that these two findings were isolated and do not imply any misunderstanding of the applicant’s evidence. It was necessary for the Authority to consider not only the applicant’s express claims, but those that clearly emerge from the materials: (see; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]). The Authority did not find that these claims were relevant to the applicant’s expressly made central claims, nor did it draw any undue conclusions from them about the applicant’s general credibility.
Issues 2, 3, 4 and 12 contend that the Authority erred by making several findings that the applicant provided few details in support of various aspects of his claims. Essentially, it was submitted that these complaints invite the Court to review the merits of the Authority’s fact-finding. It is not open to the Court on judicial review to find that a decision was irrational merely because, on the material before the decision-maker, the Court would have reached the requisite state of satisfaction: (see; Minister for Immigration and Citizenship v SZMDS and Anor (2010) 240 CLR 611 at [124]).
Contrary to the applicant’s contentions, that the applicant was “completely in the hands of the delegate”, it was for the applicant to provide his evidence and arguments in sufficient detail to enable the delegate to reach the requisite state of satisfaction. The delegate was not required to make the applicant’s case for him nor was the delegate obliged to act as a cross examiner or prompt and stimulate an elaboration which the applicant chose not to remark on. The applicant’s responsibility to raise all his claims and evidence was explained to him at the start of the protection visa interview.
The Authority did not find that the applicant had failed to answer questions which were never asked of him. Rather, the Authority made findings about the depth, consistency, and plausibility of the applicant’s testimony in response to the delegate’s open questions in the context of the protection interview. Read fairly and as a whole, the Authority’s findings about the applicant’s evidence at his protection visa interview were reasonably open to it.
The finding at paragraph 12 of the Authority’s decision that the applicant had difficulty remembering a time at which Sepah rated the birthday party was plainly open, given the applicant’s answer to the delegates question this regard ” I –I can’t tell it, because I don’t remember” : see Transcript 13.21. The characterisation at paragraph 13 of the applicant’s evidence in relation to the claim raid, arrested detention was also open. The Authority’s findings in the previous paragraph explain the finding at paragraph 13, in relation to the raid. The finding the applicant did not “remember what authorities said or did when he was arrested” directly reflects the applicant’s evidence: “…I don’t really remember what happened”: see Transcript at 14.40. It is accurate that the applicant did not specify any particular question he was asked while detained and that his brief description of the detention did not explain what happened for the 45 days it was claimed to have lasted.
The Authority’s finding at paragraph 14 of its decision, that the applicant’s claims about his escape from custody lacked detail, was open. The totality of the applicant’s evidence at the TPV interview was that he escaped when a soldier unlock the applicant’s handcuffs while he was being transported to a Court in a car. This was not a detailed account on any reasonable view.
Likewise, it was reasonably open to the Authority to find at paragraph 23 of its decision, that the applicant provided little information about his claim that he departed Iran using a friend’s passport. In any event, the Authority found at paragraph 24 of its decision, that the applicant’s claim to have use that passport was not credible in the light of its assessment of country information.
Issues four and seven relate to claims of implausibility in regards to findings which allegedly required an additional evidentiary basis. The applicant first complains that the Authority’s finding at paragraph 14 of its decision that it was implausible the applicant escaped custody on the way to a Court hearing, avoided being apprehended, and reached the bus station undetected is flawed. The applicant also complains that the finding at paragraph 17 of the Authority’s decision that the applicant, as an escaped prisoner, lived openly in Tabriz and Kermanshah for 2 years without being found by authorities is also flawed.
The applicant contends that these findings relied upon assumptions as to the competence of the Iranian security services which were the applicant contends these findings relied on assumptions that were not supported by country information. It was submitted that the Authority did not rely on any assumptions or engage in any speculation or conjecture. Unlike SZHYH v Minister for Immigration and Border Protection (No3) [2019] FCA 589, the Authority’s findings that the applicant’s claims were implausible did not require any specialist knowledge of Iranian security agencies. Rather, the Authority’s reasons show that it simply found that the applicant’s claims were inherently unlikely to have occurred and did not accord with the probabilities of human experience: (see; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56]). In oral submissions, Counsel for the first respondent took the Court to paragraph 2.25 of the DFAT country information report for Iran of 2016. That report stated:
Iranian police and security forces exert tight and effective security control over the vast majority of the country. The presence of security authorities is significant in most areas of the country, including in rural areas.
In the light of this information, the assertion by Counsel for the applicant, that simply because Tabriz and Kermanshah were geographically distant from Tehran, did not support the contention that the applicant was able to live openly in the community given that he claimed he had arrest warrants issued for him and had escaped from detention.
Issues 5, 6, 8 and 12 assert that the findings arrived at by the Authority were based on a misunderstanding of the evidence. It was submitted that these complaints fail on the facts.
Issue 5 revolves around the Authority’s finding that applicant gave inconsistent evidence about his claim that Iranian authorities confiscated his identity documents. Contrary to the applicant’s assertion, it was open to find that the applicant’s evidence was inconsistent. The applicant’s initial evidence at the protection visa interview was that the documents were taken “[when] the – the – the authorities raided our house in Iran first time they took them away them”. By the applicant’s own account, the first time his house was raided by authorities was the birthday party in September 2011. It was reasonably open for the Authority find that that statement was inconsistent with the applicant’s later evidence that, after he departed Tehran, his mother told his documents have been taken in a raid.
Issue six takes issue with the Authority’s finding at paragraph 16 of its decision, that a translator had cited the applicant’s original national identity card. This finding was plainly open given the translator states: “Translator Note: original sighted”.
The applicant’s argument is not assisted by the delegate’s decision at casebook 112, which does not state that only a copy had been translated, but rather that a copy had been provided to the Department.
Issue eight refers to the Authority’s finding at paragraph 19 of its decision, that the applicant avoided the question about arrest warrants. The delegate asked about what the applicant knew about any contact between his family and the Iranian authority since his departure from Iran. It was not illogical or unreasonable for the Authority to find that the applicant avoided that question by briefly referring to his first days in Australia, then saying he told his family not to “talk about that issue any more”: (see; Transcript 19.37).
Issue 12 asserts that there was no evidentiary basis for the Authority’s finding at paragraph 24 of its decision that country information went against the applicant’s claim to have departed Iran using a friend’s passport. Contrary to the applicant’s assertion, there is nothing to suggest that the Authority relied on any information about forged or counterfeit passports in reaching its findings. The Authority’s relevant findings were: that there were several checkpoints at the airport; that leaving Iran illegally was very difficult because of authority security checks; and DFAT expressly assessed the possibility of departing using another person’s genuine passport as “difficult” due to “sophisticated border control procedures”. Those findings were plainly open and were rationally capable of forming the Authority’s assessment of the applicant’s claims.
Issues 9 and 10 concern findings regarding the applicant’s ex-wife and divorce. The first respondent accepts that there was a finding of fact that was mistaken at paragraphs 44 to 45 and 21 to 22 of the Authority’s decision, involving the applicant’s ex-wife. It appears that the Authority at paragraph 22, mistook the applicant’s use of the word Tehran for Iran. Accordingly, the applicant’s evidence did not support a finding he gave inconsistent evidence about the timing of this divorce.
The Authority’s mistaken finding of fact may have also informed its expectation at paragraph 21 of its decision that the applicant and his ex-wife had not divorced until after his departure of Iran and in these circumstances he would have had some contact with her during the period he lived in Tabriz and Kermanshah. However, the statements at paragraph 21 to 22 were not critical to the Authority’s reasons and therefore do not reveal jurisdictional error.
The mere fact that the Authority made an incorrect finding of fact on a matter going to credit does not mean, of itself, that the decision is invalid. It is necessary to have regard to the importance or cogency the finding and its place in the assessment of the applicant’s claims to determine the seriousness of the error. The first respondent relies on AVQ15 v Minister for Immigration [2018] FCAFC 133 at [41](d) where the following was said:
[41] (d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
In this case, the applicant’s key claims for seeking protection concerned the birthday party, his ensuring arrest, detention and escape and the manner in which he left Iran. The Authority’s findings at paragraphs 12 to 14 of its decision, was an independent basis for rejecting those key claims. It is clear from the context of the reasons that the statements at paragraphs 21 to 22 of the Authority’s decision, were additional findings which went to the applicant’s credibility generally. The fact that the Authority mentioned the matter, does itself not mean that the matter was critical to the decision: (see; Navoto v Minister for Home Affairs [2019] FCAFC 135 at [68]).
It was submitted this case is distinguishable from AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [100] in which each of the Tribunal’ findings were set to give rise to a fundamental concern that the applicant’s credibility. The statements in paragraphs 21 to 22 of the present Authority’s decision were not emphatic adverse findings. Further, using the “legs of the table analogy” there are numerous robust findings sufficient to support the Authority’s conclusion independent of these two matters.
Counsel for the first respondent highlighted that the fact that at the commencement of the protection visa interview that the applicant was advised that he needed to provide complete and accurate information in relation to his claims. Further, at the conclusion of the interview, the applicant was given the opportunity for a break. Further, he was asked “are you happy that we’ve discussed all the claims that you wanted to put forward today”. The applicant answered “It’s okay”. It was submitted that it was the applicant’s responsibility, bearing in mind that the applicant was assisted by a migration agent, to put forward all material he intended to rely upon. Any lack of detail or material in his claims was the responsibility of the applicant. In these circumstances it was open to the Authority to find that the applicant’s claims were vague and lacked detail.
CONSIDERATION
The following material was tendered to the Court:
1. Affidavit of the applicant, affirmed 18 April 2021.
2. Affidavit of Jodie Coomber, affirmed 6 April 2021, attaching a transcript of the applicant’s protection visa interview.
3. Affidavit of Jodie Coomber, affirmed 19 April 2021, attaching excerpts of a transcript of the applicant’s arrival interview.
4. Bundle of Country Information, consisting of the Danish Refugee Council Report on Iran dated April 2009 and Australian Government Department of Foreign Affairs and Trade Country Information Report, Iran of 21 April 2016.
The first issue the Court was required to deal with is the application for an extension of time to file the Initiating Application. The first respondent opposed the application. As referred to by the first respondent, a non-exhaustive list of factors a Court can consider, include the extent and reason for the delay, whether there is any merit in the application, any prejudice to the respondents’, and the impact on the applicant and the interests of the public at large: (see; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]). The applicant deposed that he was being held on remand in corrective services custody, at the time the decision was made. The applicant claims that he did not ask his partner for help as he did not want her to discover the criminal charges that have been laid against him. The length of the delay, is some 136 days outside the 35 day time limit prescribed by the Act.
The Court is aware of the considerable disadvantages that people in either immigration detention or in corrections custody face, in relation to the conduct of legal matters, such as the matter before this Court. The Court is also aware that the effect of a decision by this Court will have on the applicant, as well as his family. Whilst the first respondent argues that the claims have no merit, the Court considers that it is in the interests of justice that the applicant be given the opportunity to have his claims considered on the merits. The prejudice to the first respondent is slight. Accordingly, the Court will grant leave for an extension of time to be granted pursuant to s 477(2) of the Act.
It is perhaps appropriate to first set out a number of general principles as they relate to the applicant’s complaints. It is well-established that the Authority is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion is not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348]). It is for the applicant to satisfy the Authority that he meets the relevant criteria for being a refugee: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
Jurisdictional error will not be made out if the Authority’s findings were open to it on the evidence and materials before it and for the reasons it gave, including adverse credibility findings. Jurisdictional error will not exist if the Authority’s findings are not tainted by a failure to afford procedural fairness, reaching of finding without a logical or probative basis or unreasonableness: (see; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]). A credit finding is sound, if it was “open to [the Authority] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility”: (see; Kopalapilli v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Unreasonableness is whether a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at (“Li”) [28]), or where a decision has been made that lacks “evident and intelligible justification”: (see; Li at [76]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Li at [30] and [113]). Further, legal unreasonableness is “invariably fact dependent”.
A conclusion is not illogical or irrational if different minds might reach different conclusions on a jurisdictional fact. The test for illogicality or irrationality was said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] to be the following:
[131] …must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Even if an applicant’s complaints about mistakes of fact made by the Authority are accepted, if none would be dispositive of the applicant’s claims and none is capable of suggesting that the Authority has not considered the applicant’s claims, jurisdictional error does not arise: (see; Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51).
Finally, the reasons of the Authority should not be scrutinised “with an eye too finely attuned to error”: (see; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]).
Counsel for the applicant relies upon ASB17 at [42] to [44] to submit that some inconsistencies in an applicant’s account may be objectively irrelevant to the fact finding of a decision maker. Some may be explicable, or excusable. Some may be critical to fact finding.
[44] … the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.
Reference is also made to the analogy used by Kerr J in CBY15 v Minister for Immigration [2020] FCA 878. In that case, Kerr J at [155] accepted as ‘apt’ that where a decision-maker has cumulatively taken into account a number of factors in coming to an adverse credit finding, a reviewing Court is entitled to conclude, analogously, to a table that is supported by several legs, that if one or more of the propositions on which the decision-maker has relied as support for its conclusions are held to be legally flawed, that the finding the decision-maker has made may be bereft of legal support. In that case His Honour concluded that the three of the five legs supporting the adverse credibility finding “had been kicked out and the remaining two are insufficiently robust to prevent the conclusion the Tribunal built on those foundations from collapsing”
Whilst the above is undoubtedly true, a reviewing Court is entitled to consider each of the adverse credit findings separately. Even if some of the impugned adverse credit findings are found to be flawed, a reviewing Court is still entitled to assess whether or not the balance, of those which are not flawed, are sufficient overall, to support the outcome arrived at by the Authority.
Counsel for the applicant asserts that each of the items 1-14, which consists of each and every factual finding by the Authority, is flawed in terms of the underlying factual basis upon which the adverse conclusion is based or otherwise and, taken together, add up to a decision which is affected by jurisdictional error.
The danger with this approach is that it by the very nature of the exercise the Court is required to undertake to consider the applicant’s claims, it involves a detailed examination of the findings of the Authority. It invites the Court to look at the decision with ‘an eye finely attuned to error’. Further, the very nature the inquiry required has the capacity to ensnare the Court in impermissible merits review. Such an approach is not to be encouraged.
The Authority is entitled to look at the claims of an applicant holistically in determining if the claim is made out. Some matters considered individually may be tangential, however in an overall credit finding, they may add weight to a sound conclusion that the applicant’s claims lack credit. This is especially the situation, like in the present matter, where the applicant’s case rests solely upon his evidence and is not supported by any other independent documentary or other witness evidence.
It is also appropriate to comment on the quality of the Authority decision. There is little by way of reference in the decision to the material that was ‘before’ the Authority. In fact there is only one footnote in the entire decision of the Authority at paragraph 20 of its decision, which refers to UK Home Office and Canadian Immigration Refugee Board- Iran material. While there are references to DFAT and other material in the body of the decision, the precise source of this material is not clear.
This has required the Court to closely examine this information to satisfy itself that the source exists and has been correctly summarised. Given the nature and importance of the decision, this type of inquiry by the Court should not be necessary. By way of comparison, the decision of the delegate is thoroughly footnoted and of a much better quality than that of the Authority.
The applicant asserts that findings in items 1, 11, 13 and 14 were irrelevant to the overall finding that the applicant was not a credible witness. The Court accepts that some inconsistencies may be irrelevant however others may reflect on the applicant’s reliability or credibility: (see; ASB17 at [44]).
Counsel for the applicant conceded that the applicant gave two different accounts of how loud the music was at the birthday party for his son. At his arrival interview and in the applicant’s statutory declaration he stated they had ‘loud music’ at the party. In his protection interview the applicant said it was ‘not loud’. The Court is satisfied that this inconsistency was open to the Authority to consider as to the applicant’s overall credibility and reliability.
Issue 11 relates to the amount of time the applicant spent at school. In the applicant’s statement, he indicated that he completed three years of primary school but at the arrival interview he stated he completed year 7. Counsel for the applicant submitted that the issue has nothing to do with the applicant’s claims for protection and any discrepancy was so minor as to be of no material relevance to his credibility. The Court rejects this assertion. Where the applicant’s claims rest solely on his evidence (given there was no other supporting documentary or witness evidence adduced) the Authority was entitled to look at the whole of his evidence closely to consider the applicant’s reliability and credibility as to the central claims relied upon. While cited as an example of the applicant ‘telling untruths’, the Court agrees with the submission of Counsel for the first respondent that there is no indication that the Authority placed undue weight on that particular matter in coming to the conclusions it did. The finding was open to the Authority.
Issue 13 deals with sharing Facebook posts. Issue 14 concerns claims that the applicant did not have any outstanding military service obligation. The Court does not accept that these issues informed the Authority’s general credibility finding at paragraph 11. Again they are tangential to the central findings of the Authority however were required to be considered as they emerged from the applicant’s claims. To have ignored them risked a submission that the Authority had not dealt with an integer of the applicant’s claims and so committed jurisdictional error. None of these issues reveal jurisdictional error.
In relation to items 2, 3. 4 and 12 the Court accepts the first respondent’s submission that these issues invite the Court to undertake impermissible merits review: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]). The Court does not accept that the applicant was ‘completely in the hands of the interviewer’ at his arrival interview and the delegate in his protection interview. The applicant attended the protection visa interview with his migration agent. The applicant was clearly told at the commencement of the interview (Transcript p2) “It’s your responsibility to raise all of your claims for protection and provide evidence in support of those claims.” The interview commences at 12.10 pm and concluded at 1.15pm. At the conclusion of the interview he was asked “are you happy we have discussed all of the claims you wanted to put forward today’. The applicant answered “Its okay”. He was further asked “its all good, and nothing further you would like to add”. The applicant answered “No”.
In these circumstances, the Court is satisfied that it was open to the Authority to conclude that the applicant’s account lacked the level of detail about his claims and their plausibility that might be expected. It was for the applicant to put his case and the evidence he relied upon.
It was open for the Authority to conclude that the applicant departed Iran through main airport in Tehran using his own passport. The suggestion by Counsel for the applicant that a distinction could be drawn from the country information in regards to the difficulty to exit Iran using a forged or counterfeit passport, as compared to a claim that the applicant was able to leave, notwithstanding sophisticated passport control checks, as the passport he used was genuine and the applicant simply impersonated the holder of it, is a distinction without a difference. It also does not properly recite the country information.
The DFAT Country information at 5.37 refers to the possibility of impersonation, but states “sophisticated border control procedures make it difficult to use in order to leave Iran”. The claim that the details of the applicant’s escape lacked detail, was also open to the Authority for the reasons it gave, as was the claim that he did not remember the time of the Sepah raid. The finding that the applicant’s subsequent arrest and detention lacked detail, was also open. These grounds have no merit.
Items 4 and 7 similarly have no merit. It was open to the Authority to find, without more, that the claim that the applicant was able to bribe a single guard and then escape from custody on the way to Court, was not plausible. Consideration of this claim does not require specialist knowledge of Iranian security agencies. On its face it was inherently unlikely. The Authority was entitled to find so.
Counsel for the applicant claimed that there was no basis for the Authority to find that the applicant, having escaped custody, would not have been found by security agencies for 2 years while he lived openly in Tabriz or Kermanshah, was based on an unfounded assumption about the level and competence of Iranian security forces. Counsel relied upon the distance between Tehran and Tabriz as being the equivalent of Sydney to Melbourne. How the distance between Tehran and Tabriz or Kermanshah somehow assists the capacity for a person to escape the attention of Iranian security authorities, is a submission completely without substance. There was evidence before the Authority at 2.25 of the DFAT report that Iranian security forces “exert tight and effective security control over the vast majority of the country…including in rural areas”. These items have no merit.
Issues 5, 6, 8 and 12 assert that the findings about inconsistencies in the applicant’s evidence, were not available on the material before the Authority. Counsel for the applicant went through the evidence in fine detail to suggest that each finding was not available.
Issue 5 deals with inconsistencies as to when the authorities took away the applicant’s identity documents. The applicant seeks to explain the inconsistency, by suggesting that he found out for the ‘first time’ that his documents had been taken, when he spoke to his mother, while in Tabriz. At the protection interview, the applicant stated that the documents were taken when the “authorities raided our house in Iran the first time and took them away with them”. It is common ground, that the first raid was the birthday party for the applicant’s son. The applicant was arrested at that time. The Court is satisfied that it was open to the Authority to find that the applicant gave a different account, and, that it was not until after he departed Tehran, that his mother told him that the documents had been taken in a raid .
Issue 6 deals with inconsistencies as to whether the applicant provided an original or a copy of his ID documents to a translator for translation into English. The documents relied upon, are at CB 74 to 76. The translated copy of the Birth Certificate has the notation “Original Copy Sighted” whereas the translation of the ID card has the following citation “Original Sighted”. The primary decision maker concluded that, the documents provided and seen by the translator, were copies of genuine documents located in Iran: (see; CB 112). The Authority found that it did not accept that the applicant did not have the original ID document; (see; paragraph 16 of the Authority’s decision). Given the difference in the notation between that Birth Certificate and the ID card set out above, the Court is satisfied that it was open to the Authority to conclude that the applicant provided an original ID card for translation and as a result, his documents were not taken by the authorities as claimed.
Item 8 deals with arrest warrants that the applicant claims were left at the home of his parents. Counsel for the applicant claims that there was no basis for the conclusion that the applicant avoided a question about the arrest warrants. It is clear that the applicant told the delegate at his protection interview that, he told his family not to “talk about that issue any more”. The Court accepts that it was open to the Authority to find that this was a basis for the applicant to avoid questions about the arrest warrants. The fact that this may not be the only interpretation open, is not sufficient in judicial review. If the interpretation was open, then no error arises.
Issue 12 also asserts that there was no evidentiary basis for the Authority finding that country information went against the applicant’s claims to have departed Iran on a friend’s passport. As set out above, this assertion misrepresents the information that was available to the Authority. That information dealt with both the use of forged documentation and the fraudulent use of a genuine document with a person impersonating the holder. The latter was assessed as difficult, due to “sophisticated border control procedures”. The finding of the Authority in this regard, was open to it. No jurisdictional error occurs.
Issues 9 and 10 are conceded by Counsel for the first respondent to involve mistakes of fact. The Court agrees with this assessment. Given the applicant’s overall claims however, the Court does not consider them to be dispositive of the applicant’s case. The central planks of the applicant’s claims related to his arrest, detention, escape and the manner in which he left Iran. The Court has found that these findings were sound. In these circumstances, the Court is not satisfied that these mistakes of fact are fatal to the ultimate finding of the Authority. If anything, they were additional findings and were not crucial to the outcome of the matter.
Even if the Court is wrong about some of the conclusions as to individual particulars, or items as set out above, the Court remains of the view that there is still sufficient support for the Authority’s ultimate conclusion that the applicant had fabricated his claims for protection. The Court is satisfied that the central legs of the applicant’s claims that relate to his arrest, escape, living in the community undetected for 2 years and then flying out of Iran on a fraudulent passport, in the sense that it was not his, were open to the Authority to find as simply not credible.
None of the issues raised reveal jurisdictional error such that the Court should grant the relief sought in the Initiating Application.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 24 May 2020
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