EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 696
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 696
File number(s): SYG 1398 of 2022 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 August 2023 Catchwords: MIGRATION LAW – JUDICIAL REVIEW – Temporary protection visa – unarticulated claim – whether the possibility that a raid was conducted by different authorities constituted an unarticulated claim - irrationality – where the Authority’s findings could not be made on the evidence before it – jurisdictional error established Legislation: Migration Act 1958 (Cth) Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 644
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 4 May 2023 Date of hearing: 4 May 2023 Place: Parramatta Counsel for the Applicant: Mr N Poynder Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Mills Oakley
Table of Corrections 18 August 2023 Name of applicant anonymised at [39]. ORDERS
SYG 1398 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EVI19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The decision of the Second Respondent dated 25 August 2022 be set aside.
2.A writ of mandamus issue, remitting the matter to the Second Respondent, differently reconstituted, for redetermination according to law.
3.A writ of prohibition issue, prohibiting the First Respondent and his delegates, servants and agents from acting upon or giving effect to the decision of the Second Respondent.
4.The First Respondent pay the Applicant’s costs as agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION
These are the Reasons for Judgment of an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 25 August 2022, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Temporary Protection (Class XD) visa (“TPV”).
The applicant relies on two grounds of judicial review. Ground 1 asserts that the Authority fell into jurisdictional error due to a failure to complete its task, which was to review the decision of the delegate pursuant to s.473CC of the Migration Act 1958 (Cth) (“the Act”). Ground 2 asserts that the Authority’s decision was subject to jurisdictional error on account of its credibility findings being “arbitrary, capricious, irrational, and lacking in evidentiary foundation.”[1] The applicant particularised two instances of this:
(a)The Authority’s finding on the applicant’s detention and escape from custody; and
(b)The Authority’s finding on the arrest warrant.
[1] Applicant’s Outline of Submissions filed 12 April 2023 at 1.
BACKGROUND
The applicant is a citizen of Iran and arrived in Australia as an unauthorised maritime arrival on Christmas Island on 1 June 2013. On 31 July 2013, the applicant was interviewed by an officer of the Department of Immigration (“arrival interview”), following which he was invited to apply for a TPV, which he did on 11 July 2017. On 22 January 2019, the applicant was interviewed by another officer in respect of the TPV application (“TPV interview”).
The applicant sought a TPV on the basis of his claim that he feared harm if he were to return to Iran.[2] Specifically, the applicant feared harm from the Islamic Revolutionary Guard Corps (“Sepah”). The central narrative in support of this claim comprised of events surrounding a birthday party for his then 6 year old son on 16 September 2011. In the applicant’s outline of submissions the narrative was summarised as follows:[3]
He said that the party was raided by the Iranian authorities; in his arrival interview he initially said that it was raided by ten members of the “Sepah Pasdaran” .... He said that the Sepah hit his father and he responded by pushing one of the officers …. He said that the Sepah took him by force to a car …, and he was “arrested for 45 days”, during which time he was hit by one person from intelligence …; that person also tortured him and caused his finger to be broken …. He said that the place that he was held for 45 days was Shapour Police Station in Tehran …. He said that he escaped from custody when a “shift soldier” offered to help him escape for a bribe of two million toman … and, on the day that he was being taken from the police station to court, “he opened my handcuffs and I escaped” ….
The applicant said that after he escaped he did not go home, but went to Tabriz for around a year, where he worked in a café, then he went to Jafarabad ….
The applicant said that since leaving Iran the Sepah had been to his house “more than ten times”, and “they searched my house, as I said they took my national ID card and my driving license as well” ….
The applicant said that he travelled on a passport given by a friend … who was similar looking to the applicant …. He said that the passport had been thrown away ….
(Citations omitted)
[2] CB:69-72.
[3] Applicant’s Outline of Submissions filed 12 April 2023 at [4]-[7].
The delegate refused to grant the TPV on 17 May 2019, and this refusal was affirmed by the Authority, as first constituted. This decision went for judicial review, and subsequently an appeal in respect of the judicial review decision. The decision was ultimately set aside on 6 May 2022.[4] On remitter, the delegate’s decision was once again affirmed on 25 August 2022 by a differently constituted Authority. It is this second decision which is currently before this Court for judicial review.
[4] EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 (“EVI19”).
THE AUTHORITY’S DECISION
The Authority’s decision considered the applicant’s refugee assessment and whether he had a well-founded fear of persecution under s.5J of the Act. As part of its decision, the Authority had regard to the Federal Court’s observations and reasons, including:[5]
[T]he importance of considering the significance of any inconsistencies and the weight that should be given to these when assessing protection claims and the references to relevant case law, particularly cautioning against “attaching the label ‘inconsistency’ and moving immediately … to an adverse finding of credibility”.
[5] CB:258[15].
Immediately following this, the Authority noted that the applicant had consistently maintained his narrative of the Sepah raid and detention claim. However, the Authority found aspects of the applicant’s account concerning. The Authority stated that “[m]y concerns are based on what I consider to be a range of implausibilities in his account”.[6]
[6] CB:258[15].
As part of its decision, the Authority raised concerns in relation to the applicant’s central narrative, inter alia and relevant to this review, that:
(a)The structure of Iran’s various security and enforcement agencies charged with enforcing morality included the Sepah who operate at a high level, and at a social level the police and Basij. The country information indicated that the agencies which would investigate a social gathering of concern would be the police or Basij. Accordingly, the Authority was not satisfied that the Sepah would have become involved in a raid on a small gathering, and was concerned that the applicant’s claim, that it was the Sepah, was “not plausible when considered in the context of the role of the Sepah”;[7]
(b)It is difficult to accept that a Sepah officer, would risk reprimand or punishment for allowing a detainee to escape. Furthermore, on the applicant’s account that his escape was of interest to the authorities, the Authority took the view that this cast further “doubt on his claim an [sic] Sepah officer was willing to take a considerable risk by assisting him to escape, despite the claim he was bribed for doing so”;[8] and
(c)The Authority had concerns with the applicant’s claim that a warrant had been issued for his arrest. Going towards this, the Authority pointed to the applicant not having provided documentary evidence to the claimed arrest warrant(s), nor any indication that his family was penalised for a failure to deliver the warrant.[9]
[7] CB:260[26].
[8] CB:262[33].
[9] CB:264[46].
Accordingly, in relation to the applicant’s claimed circumstances in Iran, the Authority found:[10]
[T] he applicant’s claims to be implausible and I do not accept his son’s birthday party was raided by the Sepah, or that he was arrested and detained by the Sepah, that they took his identity documents, that he escaped from Sepah custody, that a warrant was issued for his arrest, that the Sepah made visits to the family home or that he left Iran illegally using the passport of a friend. It follows that I do not accept that he was of interest to the Sepah when he left Iran or that he would be should he return. As I do not accept his claims I am not satisfied that he would face harm from the authorities on this basis should he return to Iran now or in the reasonably foreseeable future.
[10] CB:265[53].
APPLICATION BEFORE THE COURT
The applicant moved on two grounds for review, with Ground 2 consisting of two particulars.
Ground 1
Ground 1 is expressed as follows:
The second respondent failed to complete its required task, which was to review the decision of the first respondent under s 473CC of the Act.
Particulars
The second respondent made a finding that the persecutory conduct imposed on the applicant was not from an Iranian government authority called the Sepah; however it failed to go on to consider or to make findings on whether the persecutory conduct imposed on the applicant was from any other Iranian government authority
Applicant’s Case
The applicant submits that the Authority did not do its job because it limited its consideration as to who had conducted the raid on the birthday party to the Sepah despite there being other possibilities.[11]The applicant says that it clearly arose on the material that there was the possibility that the party was raided by people other than the Sepah,[12] and as such, there was an unarticulated claim that was not dealt with by the Authority.
[11] T:4.38-40.
[12] T:7.30.
The applicant points to four reasons arising from the material as to how the identity of the people conducting the raid was broader than merely the Sepah. These were that:
(a)There was consistency in the applicant’s account of the raid despite there being approximately 6 years between the arrival interview and the TPV interview, and significance should be given to this consistency as towards the applicant’s credibility;
(b)The applicant was not represented in either the arrival interview nor the TPV interview;
(c)The delegate considered whether the raid might have been undertaken by one of the other authorities other than Sepah,[13] and this was not done by the Authority; and
(d)The Authority directly raised the possibility of other organisations that may have raided the party, but did not consider them.[14]
[13] CB:105-7.
[14] CB:259[21].
In essence, the applicant submits that, on the facts referred to by the Authority, the raid on the party could have been conducted by another group and the Authority should have given consideration to this. Accordingly, the failure by the Authority to do this meant that it did not complete its task to review the decision of the delegate pursuant to s.473CC of the Act and fell into jurisdictional error.
Respondent’s Case
The respondent stated that the applicant’s submission in fact raised a contrary claim,[15] one which misstated the Authority’s findings that the Authority was not satisfied that the events described occurred. Namely, the applicant was saying that the finding was “the events described were not done by the Sepah”, whereas the respondent says that the Authority found “the events described did not occur”. That the applicant in this review now claims that there was an unarticulated claim that another group was responsible, is contrary to the claim before the Authority that the Sepah was responsible.
[15] T:36.2.
In support of this, the respondent pointed to: it being the applicant himself who claimed it was the Sepah (not the police or Basij) whom instigated the raid on the party, detained and assaulted him, and from whom he later escaped;[16] that the applicant did not make any correction during the TPV interview that his claims involved the Sepah specifically;[17] and that the applicant made no complaint following the delegate’s decision in which the claim was understood as the applicant being the subject of adverse attention and fearing harm from the Sepah (not a different security agency).[18] In short, the applicant never claimed another agency was responsible and nor was he unclear which agency was involved.
[16] CB:69-71.
[17] CB:239-240.
[18] Respondent’s Outline of Submissions filed 20 April 2023 at [9].
The respondent also says that this case differs from ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“ESQ18”),[19] as referred to by the applicant, as this is a different claim scenario because this is one where the unarticulated claim supposedly deviates from the claim made rather than being a fresh claim itself.[20] Because the claim was in relation to the Sepah, and the Authority rejected that claim as it was implausible based on country information, there was nothing left to determine and the Authority was not required in exercising its review function to consider whether a different agency might have been involved.
[19] [2021] FCAFC 44 (“ESQ18”).
[20] T:38.34.
Ground 2(a)
Ground 2(a) is expressed as follows:
The decision of the second respondent was, in part, based on adverse credibility findings on critical issues that were arbitrary, capricious, irrational, and lacking in evidentiary foundation.
Particulars
The second respondent’s finding in relation to the detention of the applicant and his escape from custody was flawed, in that it found that the applicant had been held in Sepah custody and had escaped by bribing a Sepah officer to assist him, yet the applicant’s claim was that he had been held in police custody, and that he had escaped by bribing a police or a “shift” officer to assist him. This was material because the second respondent found that it was “implausible” for the applicant to have been held in custody by the Sepah and then have escaped from the Sepah.
Applicant’s Case
The applicant says that the Authority’s description of the “shift soldier” as a “Sepah officer” lacked evidentiary basis and was irrational as the applicant was not talking about a “Sepah” officer; the Authority advanced a claim not made by the applicant. The applicant contends that the Authority’s decision came down to what were, as described by the Authority, “a range of implausibilities in his account”.[21]
[21] CB:258[15].
It was submitted on behalf of the applicant that there must be a firm evidentiary basis for an adverse credibility finding and that it would be dangerous to rely on plausibility reasoning for credibility.[22] In relation to “implausibilities”, the applicant referred to a statement by the Full Federal Court that:[23]
A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; … the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possibilities in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”.
[22] EVI19 at [79]-[80].
[23] BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56].
The applicant submits that the Authority’s finding of implausibility was “arbitrary, capricious, irrational and lacking in evidentiary basis.”[24] In support of this, the applicant referred to the inconsistency between the Authority’s decision, in which reference was made to a “Sepah officer”, and the TPV interview in which the applicant said he was detained at “Shapour Police Station”, and he had escaped while being transferred from the police station by a “soldier”.[25] Furthermore, during the TPV interview it was the interviewer who first brought up the Sepah, and the presumption that it was the Sepah that was being discussed was carried throughout the interview.[26]
[24] Applicants Outline of Submissions filed 12 April 2023 at [23].
[25] CB:240-242.
[26] T:26.29; CB:239-242.
The description of the “shift soldier” as a “Sepah officer” by the Authority was crucial to the Authority’s rejection of this part of the central narrative as it was the higher level of a Sepah soldier, as opposed to another soldier, which the Authority found to make the narrative implausible. If the soldier was not a “Sepah officer” then, according to the applicant, the central narrative was plausible.[27] The fastidiousness of the Authority’s choice of the phrase “implausibility”, according to the applicant, neatly side-stepped what had been found in relation to the Authority’s first decision and the phrase “inconsistency”.[28] Accordingly, the Authority’s finding that it was implausible for the Sepah to allow a detainee to escape was unreasonable as it had no evidentiary basis that the soldier was from the Sepah and, as such, resulted in jurisdictional error.
[27] As was found in EVI19 at [81]-[84].
[28] T:30.12-17; see EVI19.
Respondent’s Case
The respondent says that the applicant’s claim in this instance cannot be accepted as it was open to the Authority to have understood the claim in fact advanced by the applicant to have been that “the officer who escorted him from detention was an officer of, or affiliated with, the Sepah”. The respondent refers to the applicant’s statement that he was being held in a “police station” but did not say that he was taken to court by a police or other officer.[29] As such, the respondent says it was open to the Authority to address the applicant’s claims in the manner in which it did. The respondent posited that:[30]
“If there was an error about the identity of that officer, does the whole house of cards collapse?” That’s essentially what the materiality point must be, “Is there a reasonable possibility that the house of cards collapses because of that singular error?” And on a proper reading of the reasons, my submission is that it doesn’t. If it’s an error, it’s an immaterial error.
[29] CB:70.
[30] T:45.7.
Furthermore, the respondent says that unless the applicant established error in respect to Ground 1 – and the Authority’s rejection of his central claim of being of adverse interest to the Sepah – any error in the manner in which the Authority addressed a consequential claim such as this, would be immaterial to the outcome of the review. Relevantly, the Authority had noted that its concerns with the manner of the applicant’s claims of being detained and his escape were “further” concerns to those expressed in relation to the raid.[31] As such, the Authority’s rejection of the raid claim, which was the nucleus for the claim, was uninfluenced by its consideration of the detention and escape claims. As put by the respondent during submissions:[32]
So these are additional but, in my submission, they’re not necessary components of the same conclusion that the detention and escape from custody claim must also be rejected, because the raid claim was rejected for independent reasons, independent of any of the findings that the authority made separately about the escape from custody.
[31] CB:261[27].
[32] T:42.15.
Ground 2(b)
Ground 2(b) is expressed as follows:
The decision of the second respondent was, in part, based on adverse credibility findings on critical issues that were arbitrary, capricious, irrational, and lacking in evidentiary foundation.
Particulars
The second respondent’s finding in relation to the applicant’s claim that an arrest warrant had been issued against him was flawed, in that the second respondent, without any evidentiary basis, found that the applicant ought to have been able to provide evidence that the warrant had been published in a “widely circulated or a local newspaper”, and that the applicant’s family would have been required to acknowledge that they were aware of the whereabouts of the applicant, and would have undertaken to deliver the warrant to the applicant or they would have been penalised for failing to do so.
Applicant’s Case
The applicant says that the Authority erred in its finding in regard to the arrest warrant as it was irrational on the basis that, because there was no newspaper evidence of the warrant and no evidence that the family had been served, it does not follow that there was no existence of a warrant. As already set out above under Ground 2(a), the applicant raised the contention that the Authority’s decision relied upon what it saw to be “implausibilities” in the applicant’s account, and that these “implausibilities” were capricious and lacked evidentiary basis.
The applicant noted that there were two grounds raised by the Authority for its rejection of the existence of the warrant: firstly, the Authority had country information which indicated that when a warrant could not be served personally, proper service could be effected by publishing it in a widely circulated newspaper; and secondly, when family members are served in place of the accused, they would acknowledge they were aware of the accused’s whereabouts and would undertake to deliver the summons.[33] The Authority was concerned that there was no evidence for either of these actions.
[33] CB:263[43]-[44].
The applicant submits that this was illogical and lacked evidentiary basis for two reasons. Firstly, there was no country information that warrants were always published in Iran, nor that anyone would undertake a search of “widely circulated or a local newspapers” to look for the publication of the warrant; “[w]hy does it follow that just because the applicant doesn’t have a scrap of newspaper with reference to a warrant on it – does that mean it never happened?”[34] Secondly, it was plausible that the applicant’s family would not send the warrant to the applicant, and in any event, there was no country information that the family would necessarily have been penalised for failing to deliver the warrant nor that such a failure would be detected.
[34] T:33.10-13.
The reasoning of the Authority for why the applicant had no evidence of the existence of the warrant involved speculation on the part of the Authority. Specifically, that there was “no apparent impediment to having this warrant, or a copy sent to him to provide in support of his claims.”[35] The applicant submits that the difficulties in producing documentary evidence by refugees was well-known.[36]
[35] CB:264[46].
[36] Applicant’s Outline of Submissions filed 12 April 2023 at [34].
Respondent’s Case
The respondent rejects this ground on three points. Firstly, it was a matter for the applicant to establish his claims to the satisfaction of the Authority. Applicably, the Authority was not required to accept the applicant’s claims uncritically,[37] nor was it required to have rebutting evidence available before it could make a finding that the arrest warrant claims had not been made out.[38] Secondly, the delegate made similar findings by reference to the same country information and the applicant did not advance any submissions or new information to the Authority about the delegate’s rejection.[39] As such, it could not be argued that the Authority’s findings in regard to the arrest warrant were unfair or unknown to the applicant. Thirdly, the Authority did not interpret the country information as warrants “always” being published. To be exact, the Authority found that warrants were “generally” served at the last known address of the accused, and if this was not known, proper service would take place through newspaper publication; it was the applicant who claimed his family had been served,[40] and had been asked about this at the TPV interview.[41] Accordingly, the respondent submits that the Authority’s findings in relation to the arrest warrant were open to it on the available information.[42]
[37] AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [56].
[38] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
[39] CB:108.
[40] CB:263[42].
[41] CB:264[46].
[42] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 644 at 648.
DETERMINATION
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led to the Authority to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
In order to succeed, the applicant must establish that the Authority’s decision is affected by jurisdictional error.
In this instance, the applicant argues that the Authority’s decision was affected by jurisdictional error because it firstly did not carry out it required task to review the decision under s.473CC of the Act in that it failed to consider an unarticulated claim for protection (the unarticulated claim ground). Secondly, the applicant asserts that the decision was effected by jurisdictional error because the credibility findings were arbitrary, capricious, irrational, and lacking in evidentiary foundation (the irrationality ground).
The unarticulated claim ground
In respect of determining whether a claim clearly emerges on the material involves the application of the following principles:[43]
(a)Such a finding is not to be made lightly;
(b)The fact that a claim might be said to arise from the materials is not in itself sufficient;
(c)In addition to clearly emerging from the material, the claim should also arise from established facts;
(d)When a party is unrepresented a court will be more willing to draw the line in that party’s favour; and
(e)Assessment cannot take place in a vacuum and consideration must be given to the manner in which the applicant’s claims were presented over time.
[43] ESQ18 at [61] citing AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503.
The applicant has consistently claimed, as part of his central narrative, that during a party for his son’s first birthday in September 2011, his father’s house where he and his family resided was raided by the Sepah, at which time in defence of his father, he pushed an officer. The applicant says that he was then arrested, held for 45 days and tortured. On his first court date, the applicant says that a shift solider, who was bribed, helped him escape. Thereafter, the applicant remained in Iran for some 2 years before departing by air on a friend’s passport from Tehran, Iran and ultimately arriving in Australia by boat in July 2013.[44]
[44] See also, EVI19 at [2].
At his arrival interview, the applicant gave the following answers, with the assistance of a Farsi interpreter:[45]
[45] Transcript of extract of audio recording of interview on 31 July 2013 in Affidavit of Jodie Ellen Coomber filed 24 April 2023 annexure JEC1.
OFFICER: Why did you leave Iran?
INTERPRETER: Conflict. After conflict with ...
OFFICER: Yes?
INTERPRETER: ... Sepah Pasdaran.
OFFICER: With?
INTERPRETER: Sepah Pasdaran. Sepah.
OFFICER: Sepah. What happened, what kind of conflict?
INTERPRETER: They just. .. they came to my house without any reason when I lived there.
OFFICER: Why?
INTERPRETER: It was my son's birthday, and we had a party, a family party, and in the party we had loud music and everyone was dancing, it was, I think, and suddenly, around 11.00, ten people attacked our house ...
OFFICER: Ten people?
INTERPRETER: Ten people.
OFFICER: Ten. Yeah?
INTERPRETER: Attacked our house.
OFFICER: Yeah?
INTERPRETER: And they came, they ... they hit my dad ...
OFFICER: Yeah?
INTERPRETER: And he is quite old guy ...
OFFICER: Mm?
INTERPRETER: And I got so upset I couldn't control myself ...
OFFICER: Mm?
INTERPRETER: I pushed one of them. I didn't even hit him. I just pushed him, "Why do you hit my dad?"
OFFICER: Mm?
INTERPRETER: And after that, they took me by force into the car ...
OFFICER: Mm? Mm?
INTERPRETER: I was arrested for 45 days, and one intelligence used to come, hit me in my hands and used to tell me "Why did you hit the authority person", which I didn't even hit. And there was a shift soldier? Shift soldier.
OFFICER: Mm?
INTERPRETER: He told me "I will. .. I will come make to you escape, but you have to pay me two million toman", Iranian money.
OFFICER: How much?
INTERPRETER: Two million toman, which is ...
OFFICER: Tuwon?
INTERPRETER: Two million ...
OFFICER: What?
INTERPRETER: Toman ...
OFFICER: Toman ... T-U ... How do you spell that, sorry? Toman?
INTERPRETER: It's Iranian currency.
OFFICER: Yeah? Okay. Yeah?
INTERPRETER. Toman. "I'll make you to escape."
OFFICER: Mm?
INTERPRETER: And after that, in the day that I was going to the court, he opened my handcuffs and I escaped. And after that I didn't go back home. As I mentioned before, I went straight to the different city and I started working in cafe.
OFFICER: When did this happen?
INTERPRETER: Twentieth ... No ... 16th of September 2011. It was exact on ... exactly on my son's birthday.
…
OFFICER: That's fine. So, were you charged with any offence?
INTERPRETER: No I was ... as I said, it was the day of my court that I escaped.
OFFICER: So you were not charged?
INTERPRETER: No, I didn't even go to the court.
OFFICER: What was the name of the person who helped you escape?
INTERPRETER: Mehdi Zimak.
OFFICER: And where did you escape, where ... which ... where were you held, or what was the location? Was it a police station? Was it a prison?
INTERPRETER: It was ... day one ... I wasn't transferred from the police station to the court.
OFFICER: Okay, so you stayed at the police station for 45 days?
INTERPRETER: Yes.
OFFICER: Which police station?
INTERPRETER: Ah, that's ... no, that's ah ... lt's not.
OFFICER: Okay.
INTERPRETER: It's Mehdi Zimak.
OFFICER: Oh, "Medhi". M-E-H-D-I?
INTERPRETER: Yep.
OFFICER: Okay, I was held at a police station. Where? Which police station? Which town? Province?
INTERPRETER: Shapour Police Station.
OFFICER: Shapour.
INTERPRETER: Police Station in Tehran.
OFFICER: Okay. Did you pay ... did you pay Mehdi Zimak the money?
INTERPRETER: Yeah ... Well.. At the day ... At the day that I escaped they gave him two ...
OFFICER: Who's they?
INTERPRETER: Who? My older brother, because I rang him, and I told him to get the money.
OFFICER: What do you think will happen to you if you return Iran?
INTERPRETER: They will torture me and they will send me to jail. Last time they break my finger and this time I think they will kill me.
OFFICER: Okay.
INTERPRETER: Shows that the place that they torture, they will handcuff me with one hand and hanging me, also my shoulder's still hurting.
OFFICER: So, who tortured you?
INTERPRETER: The person who was in charge of my case.
OFFICER: Do you know his name?
INTERPRETER: No. He was a very tall person, and he had a lot of beard, and both ears were broken.
OFFICER: Why was he torturing you?
INTERPRETER: Because they attacked my house and says that, "You guys having a party," which it was like, you know .. . it was like more a family party, it wasn't like, you know, other parties.
OFFICER: So, who do you think will kill you if you return?
INTERPRETER: The same people, Sepah people. As I. .. since I left until now more than ten times they have been after me in my house, they searched my house. As I said, they took my national ID card and my driving license as well.
…
The application for protection visa, contained the following information, clearly collated from the arrival interview:[46]
[46] CB:12[32].
32. Why did you leave your country of nationality (country of residence)?
A. I left after conflict with Sepah Pasdaran.
Q. What happened, what type of conflict?
A. They came to my home without reason.
Q. Why?
A. It was my sons birthday, we had a family party, we had loud music, dancing, around 11 pm, 10 people attacked our house, they hit my dad, he is old, I got upset I could not control myself, I pushed him, after that they (The police Sepah) took me by force into the car. I was arrested for 45 days, one intelligence used to come and hit me on my hands and used to tell me why did you hit the authority person, and I did not even hit anyone. There was a shift solider, he said he would help me to escape, but he wanted 2 million Toman, after this on the court day, he opened my handcuffs I escaped, I did not go home, I worked in a cafe in a different city.
Q. When did this happen?
A. 16/09/2011.
Q. Is this when you went to work in the cafe?
A No I went to Tabriz for one year.
Q. Were you charged with any offence?
A. I escaped on the date of court, I did not go to court.
Q. What's the name of the person who helped you escape, where were you held?
A. Mehdi Zimak, I was held at the police station, in Tehran, Shapoor.
Q. Did you pay Mehdi Zimak the money?
A. At the day I escaped they (my older brother) paid him the 2 million.
Additional information. I was tortured, I was handcuffed, hung from my fingers, I have a broken finger and sore shoulder.
Q. Who tortured you?
A. The person who was in charge of my case?
Q. Do you know his name?
A. No, he was tall, both of his ears were broken.
Q. Why was he torturing you?
A. Because they attacked my house and said that I had a party at my house, it was a family party not other kinds of party.
The statement of protection visa claims, provided in support of the visa application by way of Statutory Declaration dated 15 July 2017, quoted verbatim the answers provided to question 32 in the visa application, as referred to directly above.
The TPV interview includes the following questions and answers:[47]
[47] CB:238[5]-243[6].
DOHA OFFICER: Okay, thanks. Okay, thanks for that. We’ll have a talk about your claims now, okay? Okay. You stated that – in your statement of claims that in 2011 – in September 2011 you were having a party to celebrate your son’s birthday, is that correct?
APPLICANT: Yes
…
DOHA OFFICER: … You stated that – excuse me – that ten Sepah officers entered your house and raided the house, is that correct?
APPLICANT: Yes
…
DOHA OFFICER: … So, these Sepah officers, did you know any of them by – by face?
APPLICANT: Yeah, I didn’t know them, you know, prior to that incident, but I saw their faces.
…
DOHA OFFICER: Okay. So, what happened during this raid?
APPLICANT: Then, my father got the door, and they pushed my father away. And, then, I was wondering what sort of treatment is that they have with an elderly – like, 60, 70 years old man, and I just wanted to prevent them hurting my father, and not hitting him.
DOHA OFFICER: And, what happened, what did you do?
APPLICANT: Yeah, I just pushed him away, so to prevent him to hurt my father, to hit my father. And, then they took me, and pushed me into the car, and take me away – took me away.
DOHA OFFICER: Did they say why they were arresting you?
APPLICANT: Yeah, when I asked them why – a few time that I asked them there, “Why you have arrested me,” they said, “You have raised your hand on the government’s subjects, or property.”
DOHA OFFICER: Was anybody else at the party arrested, [EVI19]?
APPLICANT: No. No, only that – at that – the second that happened to me, and they only could take me away.
DOHA OFFICER: Okay. I see. So, did – when they grabbed you and took you away did they do anything else in the party? Did they take things, or did they question other people, or anything like that?
APPLICANT: Yeah, I don't remember exactly, but at that moment I was the sort of front, and it’s been a while that – you know, past that incident, and I don’t remember really what happened. And, it was so quick that I couldn’t retain it.
DOHA OFFICER: Okay. So, where did they take you to, [EVI19]?
APPLICANT: They took me to Shapoor.
DOHA OFFICER: And, what’s that, or where is that?
APPLICANT: There is a big building for Shapoor and the authorities, and they called it the station, you know, the – their headquarter, or investigation sort of building.
DOHA OFFICER: Okay. And, what happened to you during your – your time in their detention?
APPLICANT: Yeah, they – over and over they tortured me, and even they broke my finger. I’ll show it to you.
DOHA OFFICER: Broke your finger. Wow.
APPLICANT: Yeah.
DOHA OFFICER: Yeah.
APPLICANT: And, they hurt me a lot.
DOHA OFFICER: Just for the information of the recording, the Applicant has shown me an area on his hand which he claimed was broken by the Sepah during his detention, a very twisted finger. Thanks. And, did they – did they accuse you of anything, or were they just punishing you? What was the reason they were doing this to you?
APPLICANT: Yeah, they would hit me, and they would tell me many – they talked to me a lot, they would tell me many things. But, I was wondering why they are talking, you know – where – why they’re having this talk with me, and why they were hitting me.
DOHA OFFICER: Okay.
APPLICANT: Yeah, and many time when I asked them – when I begged them not to hit me anymore, not to hurt me anymore, they say, “If you talk – if you talk a lot I will – we will kill you. Don’t talk. If you talk more we will kill you.”
DOHA OFFICER: So, were you charged with any offence by the Sepah?
APPLICANT: Yeah, it’s – you altercation or, you know, hitting the – the authorities, the people who work for authorities. And, because I was – I escaped, I – I was more in their, sort of – they were looking me – looking for me, and I was the – more of a subject of attention for them. And, because of that I didn’t stay there, and I left there.
DOHA OFFICER: We’ll get to that shortly, mate. Excuse me. Before this incident, before you were arrested and before the raid on your – your child’s party, had you ever had any problems with the Iranian authorities?
APPLICANT: No.
DOHA OFFICER: No? So, you’d never been arrested or detained before by the Iranian authorities?
APPLICANT: No.
DOHA OFFICER: Okay. So, the initial – just to clear this up, I just want to make sure I’ve got this right. The Sepah raided the party, and they pushed your father, and you pushed the officer back to protect your father, and then they arrested you then, is that correct?
APPLICANT: Yes.
DOHA OFFICER: Okay. Why do you think they were raiding the party, any idea?
APPLICANT: Because in that country having a party is a crime, and - and they thought that I’m having a party, and it was, like, a – but, it was a family gathering, it was a family party. It was unlike what they thought.
DOHA OFFICER: Okay. So, they thought it was a big party, with lots of people?
APPLICANT: Yes.
DOHA OFFICER: Okay. Excuse me a second, mate. Okay. So, you stated that – in your – in your application that you were allowed to escape by a soldier when you offered him a bribe, is that correct?
APPLICANT: Yeah, he helped me.
DOHA OFFICER: Okay. How did he help you escape?
APPLICANT: I – I talked with him. And, I talked with him, and then when they were transferring me to the Magistrate Court – or, the court, he opened my hand out.
DOHA OFFICER: Okay. And, then you escaped after he did that?
APPLICANT: Yes. He – when he opened my handcuffs, and I was [0:38:52] after car, yes, I escaped.
The applicant was unrepresented during the arrival interview. His answers were given through an interpreter. The visa application form contained answers which were collated from the arrival interview, but not verbatim.
The applicant’s statement of protection visa claims, by way of a Statutory Declaration dated 15 July 2017 prepared and submitted by the applicant in 2017, through representatives, adopted in whole the answers noted in the visa application.
At the TPV interview in 2019, the applicant was told that the purpose of the interview was for him to provide further information in support of his application for a protection visa. The TPV interview was conducted in the presence of the applicant’s representative, with the assistance of an interpreter.[48]
[48] CB:227[11], 23-24. Although it appears that the applicant by and large did not utilise the services of the interpreter during the interview.
At the TPV interview, the applicant was told that it was his responsibility to raise all of his claims for protection and provide evidence in support of those claims. It was explained to the applicant that if he wished to correct some information provided previously, that he could do so at any time during the interview. He was then told that he would be asked questions specific to the claims that he raised in his protection visa application.[49] The applicant was asked at the commencement of the interview whether he was sure that everything he put in his application was true and correct, to which he replied with a “yes”.
[49] CB:228-229.
The information provided by the applicant in respect of his claim was provided at the arrival interview, the visa application form, the statutory declaration and the TPV interview.
The applicant’s central narrative to his claim for protection relates to his arrest, detention and escape. His central narrative is that his son’s birthday party was raided by the Sepah, that he was arrested, detained, tortured and that he escaped. This is his express claim.
While the applicant did name the Sepah in his arrival interview, his visa application referred to “The police Sepah”. There are also references to “one intelligence” and “shift soldier” in his arrival interview and references to “Iranian authorities” and “authorities” by the interviewing officer during the TPV interview.
The possible ambiguity and/or inconsistency in the protection visa application by use of the words “The police Sepah”, was not corrected, queried or otherwise called into question by the applicant’s representative at the time the statutory declaration was provided in 2017, or indeed at any point in time thereafter, including at the TPV interview in 2019 which was conducted in the presence of the representative. It was likewise not the subject of any question by the interviewing officer.
There are slight variances in the way the applicant describes those responsible for raiding the birthday party, detaining him, questioning him, torturing him, who he bribed and ultimately from whose custody he was able to escape. While it may be that the references to “they” and “them” could be understood as references to the Sepah, they could also be understood as reference to different authorities which might have been involved in the central narrative.
It was firstly the delegate who in considering the applicant’s claim, carefully considered country information and found that:[50]
[50] CB:105-106.
I do not accept the following claims as findings of fact:
The applicants claims that his child’s birthday party was raided by Sepah
Country information reports that… even family parties, including wedding and birthday parties have not been immune from police and security forces assaults.
… while raids on private birthday parties do occur… the authorities are generally targeting minority and high profile cohorts…
… reported on a raid on a birthday party for a Baha’i person…
… IRGC and Basij officer raided an alleged ‘gay’ birthday party…
… when police and basij units raided a private birthday party…
…
As previously discussed, the Iranian authorities have targeted party and birthday party gatherings of Christians, Baha’i and members of the gay community.
Based on that information, the delegate did not accept the applicant’s claim as follows:[51]
… I do not find it plausible that the event would attract the claimed response from Sepah agents… there is minimal chance that the Iranian authorities would even have knowledge of the event let alone have shown interest in it.
… the applicant did not have a profile of a person of interest to the Sepah and I assess that this makes it more implausible that the authorities would have any reason for raiding a child’s party being conducted as claimed.
I do not consider that the child’s birthday party would, in the circumstances described, be of interest to the authorities… In this regard the applicant described the event as a family get together and as such I do not accept that the Sepah or any other Iranian security agency raided the party as claimed by the applicant.
…
I have not accepted as credible that the applicant’s Father’s house was raided by the Sepah or any other Iranian security agency at the time of the birthday party.
[51] CB:107.
The Authority was well aware of the delegate’s findings in this regard and in fact referred to them in its reasons: “On the basis that he did not accept the Sepah or any Iranian security agency raided the party…”[52]
[52] CB:260[27].
The Authority itself, in explaining why it found the applicant’s express claim about the Sepah raiding his son’s birthday party was implausible, went to great lengths to set out the relevant country information:[53]
16.In considering the claim that Sepah raided the party it is important to have regard to the structure of the various security/enforcement agencies in Iran.
17.The key forces in internal security in Iran are the police, the Sepah (officially known as the Islamic Revolutionary Guard Corps), and the Basij. The police are responsible for law enforcement and have a morality control department charged with enforcing Islamic rules and standards. The Sepah is responsible for “guarding the Revolution”. The Basij is a voluntary force under the command of the Sepah and is a paramilitary organisation with a wide range of duties, particularly internal security, law enforcement and occasionally, moral policing. The Basij can patrol the streets and conduct checkpoints, particularly when there is a heightened security atmosphere or after large events. Basij officers are identifiable by their distinctive scarves.
18.Of these agencies it is the police and the Basij who have a role in enforcing the moral code and do so at a social level. While the Sepah has a responsibility to guard the Revolution and with that guarding Islamic principles, its role is at a high level. The Sepah reports directly to the Supreme Leader. Considered to be Iran’s most powerful internal security force the Sepah has a role in the defence of the country and has been actively involved in supressing political dissent. It has a powerful intelligence arm that carries out domestic intelligence operations. This role extends to protecting the regime from internal dissent and foreign interference, international covert action and maintaining control over sensitive industries. It carries out arrests and maintains its own detention facilities. In addition to its security function the Sepah also has substantial financial interests in many facets of Iran’s economy, including the important and sensitive resource sector.
[53] CB:259.
The Authority then went on to conclude:[54]
19.Noting the role and operations of the Sepah it is difficult to accept that ten of its officers raided a birthday party in Tehran. But the applicant has stated the Sepah raided the party, rather than police or Basij, who would each be identifiable by their uniforms or distinctive Basij scarf, and that it was a Sepah officer he pushed and because of the elevated role of Sepah officers he was taken away and charged with offences for which he was due to appear in court.
[54] CB:259.
The Court notes that the applicant never said that it was the Sepah rather than the police or the Basij, who he claimed raided the birthday party. No other possibility was put to him. Indeed, there is no evidence whatsoever that the applicant was aware that the police, Basij and/or Sepah are clearly identifiably by their uniforms or distinctive Basij scarf. He was never asked about these matters, nor did he ever give such information. Furthermore, the applicant did not at any point in time suggest or say that it was because of the elevated role of the Sepah officer that he was taken away. These are all conclusions made by the Authority without any evidentiary basis.
The Authority’s conclusion that the party was not raided by the Sepah as they did not engage in such low level activities, was central to the determination of the applicant’s claim. The Authority’s conclusion that it is the police or the Basij who might raid birthday parties, and not the Sepah, was material in its reasoning in not accepting the applicant’s claim.
The Authority did not find that the applicant’s son’s birthday party was not raided per se, it found that it was not raided by the Sepah – on the basis it was implausible that the Sepah would raid a child’s birthday party in the circumstances of the applicant. The Authority did find that birthday parties were raided by the police and/or the Basij.
Indeed, even on the applicant’s express claim that it was the Sepah which raided the birthday party, the rest of the information he provided is at least ambiguous enough in its use of “one intelligence” and “shift soldier” to give rise to a claim that it might have been other authorities or government agencies which was responsible for his detention, which questioned and tortured him, and whom he bribed. He says that he was, after all, kept in a police station, that he was questioned by “one intelligence” and that he bribed a “shift soldier”.
In determining the matter before it, the Authority had to consider, as a whole, the applicant’s central narrative and the Authority had to have regard to all of the review material, including the delegate’s findings.
On a fair reading of the delegate’s decision, it is clear that the delegate considered there was an unarticulated claim before him in respect of other agencies raiding the birthday party, and that this was a relevant matter for the delegate to consider based on the established facts. Given the delegate’s findings, the unarticulated claim is one that clearly emerges from the materials.[55]
[55] ESQ18 at [66]-[68].
It was not necessary for the applicant to expressly adopt or embrace the unarticulated claim to give rise to an obligation on the part of the Authority to review that claim. The applicant was entitled to expect that the delegate’s reasons would form part of the review material and that all issues would be appropriately considered by the Authority, given the claim clearly emerged from the circumstances[56].
[56] ESQ18 at [71].
As such, an unarticulated claim did arise on the material before the Authority which it failed to consider, it was open of course to the Authority to reach the same view as the delegate in respect of the unarticulated claim, but the Authority erred in not undertaking that intellectual process in the circumstances of the applicant.[57]
[57] ESQ18 at [72].
Ground 1 is therefore established.
The irrationality ground
The Court must look to the Authority’s reasons to discern its course of reasoning.[58]
[58] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 64 at [63].
For the purposes of the Ground 2 for judicial review, it is important to consider the Authority’s reasons for its decision, including under the heading “Assessment of claimed circumstances in Iran”, which were relevantly as follows:
48But, as explained above, in the applicant’s case I have concerns with many aspects of the applicant’s claims including implausibilities in claims in the context of independent country information. Considered individually these may not damage the credibility of his claims but considered together I find they amount to substantial concerns.
49As explained earlier, I am not satisfied that the country information supports a finding that a small domestic party in Tehran would have been of interest to the Sepah and result in a raid by ten of its officers late at night.
50I am not satisfied it is plausible that a Sepah officer, escorting a prisoner accused of a transgression against another Sepah officer to court, would take the risk of allowing that person to escape while under his supervision. I note the claim a large bribe was paid to this officer and I note the country information about corruption in Iran but such reports indicate that the type of corruption that the Sepah is accused of in relation to criminal matters is largely focussed on securing a conviction by fraudulent means rather than allowing accused parties to evade the justice system.
51I am not satisfied the applicant would have been able to depart Iran using the passport of a friend to whom he bore a resemblance. In this regard I have placed significant weight on the country information reporting on the level of sophistication of immigration and airport control systems and that the Iranian authorities are reported to be adept at detecting fraud, including passport imposter fraud.
52I find his account regarding the arrest warrant to be implausible in the context of the country information and considered together with my concerns about the Sepah raid as outlined above he has failed to satisfy me the Sepah issued an arrest warrant.
53For the reasons I have outlined I have found the applicant’s claims to be implausible and I do not accept his son’s birthday party was raided by the Sepah, or that he was arrested and detained by the Sepah, that they took his identity documents, that he escaped from Sepah custody, that a warrant was issued for his arrest, that the Sepah made visits to the family home or that he left Iran illegally using the passport of a friend. It follows that I do not accept he was of interest to the Sepah when he left Iran or that he would be should he return. As I do not accept his claims I am not satisfied that he would face harm from the authorities on this basis should he return to Iran now or in the reasonably foreseeable future.
It was the cumulative effect of the “implausibilities” which the Authority found that led the Authority to reject the applicant’s claim for protection. As such, its findings in respect of each and every “implausibility” was material in its determination of the applicant’s claim for protection.
Finding on detention and escape from custody
The applicant said during the arrival interview he was detained in Shapour prison, he said that “one intelligence used to come, hit me in my hands and used to tell me “why did you hit the authority person”, which I didn’t even hit”.[59] A little later during the interview, the applicant states in answer to the question what he thinks will happen if he returns to Iran “[t]hey will torture me and they will send me to jail. Last time they break my finger and this time I think they will kill me.” It is not clear who the applicant is referring to when he uses the word “they”.
[59] Transcript of extract of audio recording of interview on 31 July 2013 in Affidavit of Jodie Ellen Coomber filed 20 April 2023 at annexure JEC1 page 3 line 5.
During the TPV interview, the applicant, when asked where he was taken, said “they took me to Shapoor (sic)” and “there is a big building for Shapoor (sic) and the authorities, and they called it the station, you know, the – their headquarter, or investigation sort of building”.[60]
[60] CB:240[45]-241[6].
The Authority consequently found “the applicant claims to have been held by their officers in the organisation’s headquarters and regularly spoken to, beaten and tortured”.[61] This is not what the applicant claimed.
[61] CB:261[30].
As such, the Authority’s findings that the applicant was detained by the Sepah specifically, when he is speaking of being detained in Shapour prison (which he also referred to as “their headquarter or investigation sort of building”), was a finding the basis of which cannot be understood from the Authority’s reasons. It is arbitrary, capricious, irrational and lacking in evidentiary basis.
During the arrival interview, the applicant referred to a “shift soldier” telling him that he would help him escape if he was paid two million toman. He later named the person who helped him escape and confirmed that he was paid two million toman by the applicant’s older brother.
The Authority explained that, even allowing for corruption, it is difficult to accept that a Sepah officer would risk reprimand or punishment for allowing a detainee to escape in a place and manner where he was at risk of being detected.[62] The Authority concluded that on the applicant’s own account, his escape must have been of significant interest given that he claimed the authorities had visited his family up to ten times, and in those circumstances the Authority found that there was further doubt cast on the applicant’s claim that a Sepah officer was willing to take such considerable risk.
[62] CB:262[33].
The description by the Authority of the detention and escorting authorities as Sepah was material to the rejection of the central narrative.
The Authority erroneously refers to the applicant describing the person who assisted him to escape as a “shift officer”, and then later as a “Sepah officer”.[63] The applicant never specifically stated that the “shift soldier” was a Sepah officer. It is the Authority which concludes that the applicant was referring to a Sepah officer when he referred to a “shift soldier”.
[63] CB:262[33].
The basis for such a conclusion cannot be understood from the Authority’s reasons and is one which is irrational and lacking in any evidentiary basis.
Ground 2(a) is therefore established.
Finding on arrest warrant
During his arrival interview the applicant, when asked if he knew of an outstanding warrant for his arrest, said “Yes, they still have the warrants, that’s why they keep coming to my house searching for me.”
In the TPV interview, the following exchange occurred:
DOHA OFFICER: Okay. You stated in your arrival interview, I believe, that – that you think there was a warrant for your arrest back in Iran.
Do you recall saying that?
APPLICANT: Yes, they have, they have issued a few arrest warrants to send it to our house. Yeah
DOHA OFFICER: Who told you this?
APPLICANT: Yes, I talked to my mother. My told me that, “They have sent some papers here for your arrest, and also they come and watch, you know, stalk the house to see if you are coming around. And, also, they asked the question from your friends, and also us.”
DOHA OFFICER: Do you happen to have a – have you seen the warrant yourself?
APPLICANT: No.
DOHA OFFICER: Do you have a copy of it?
APPLICANT: No.
The applicant does not say that the arrest warrant was served on any member of his family, nor left at his home. At its highest, his mother has told him that some papers were sent for his arrest, not that it was an arrest warrant per se.
Confusingly, the applicant said during the arrival interview that he had not been charged after he was detained following the raid on the birthday party, and that he was on his way to Court to be charged when he escaped. In his TPV interview, the applicant confirmed that he was charged.
In examining this claim, the Authority considered country information about procedure for arrest warrants and rejected the claim.
The Court accepts the submissions of the applicant in this regard, in particular that:
… Firstly, there was no country information that the publication of warrants was always done in Iran, and there was no evidence that anyone, including the applicant (who presumably was unaware of the Authority’s contention until he saw the decision) had undertaken what would likely be an onerous task of searching through “widely circulated or a local newspapers” for any such publication of the warrant. Secondly, it is entirely plausible that the applicant’s family would not necessarily send any warrant on to the applicant in Australia, as directed by the authorities. Also, there was no country information that the family would necessarily have been penalised for failing to deliver the warrant; in any event such failure would likely be undetected by the authorities.
… the fact that the applicant did not have a copy of the warrant did not necessarily mean that it did not exist. The applicant was never asked why he did not have a copy, by either the arrival interviewer or the delegate, and the last sentence of the decision at [46] involved speculation on the part of the Authority as to whether there were impediments to the applicant having a copy of the warrant
The Authority’s findings in relation to the arrest warrant was not open to it on the evidence before it and the error was material in the sense required.
Ground 2(b) is established.
CONCLUSION
The applicant has established jurisdiction error in respect of the articulated grounds.
The decision of the Authority must be set aside with costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 August 2023
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