Fdi20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1145
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FDI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1145
File number(s): SYG 2890 of 2020 Judgment of: JUDGE LAING Date of judgment: 6 December 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming refusal of a protection visa – whether the IAA’s reasoning was legally unreasonable or irrational – application dismissed Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of hearing: 10 November 2023 Place: Sydney Counsel for the Applicant: Ms T Baw Solicitor for the Applicant: Craddock Murray Neumann Lawyers Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2890 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FDI20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (protection visa).
BACKGROUND
The applicant is a citizen of Iraq who arrived in Australia as an unauthorised maritime arrival.
On 6 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview.
On 23 June 2017, the applicant applied for a protection visa.
On 25 July 2019, the Delegate refused the application. The matter was then referred to the IAA for review.
On 21 August 2019, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA set out the procedural history to the matter, the evidence before it and a summary of the applicant’s claims at [1]-[5] of its decision.
The IAA accepted that the applicant’s background and work history had been generally consistent and that it was as stated (at [6]). However, the IAA did not accept the applicant’s claims to face harm on account of a dispute that he had with a member of the Mahdi Army (whilst the spelling of the group in question varies somewhat throughout the materials, I have adopted the spelling used in the applicant’s statement in support of his protection visa application). In this regard, the IAA reasoned at [7]-[10] (footnote omitted):
7.In his arrival interview of January 2013 the applicant stated that he left Iraq because he had been threatened by a member of the militia. He stated “one of the militia members owned a shop nearby, and we talked to him once and he bashed me”. The applicant did not repeat this claim in his detailed statement of claims lodged in June 2017 or at the PV interview. In the statement of claims the applicant states that he built a suite of bedroom furniture for a client. The client’s husband however refused to accept the goods, claiming they were of poor quality, and demanded the return of his payment – 1.5 Million Dinars - in full. The applicant stated that he refused to collect the furniture from the client’s house and asked instead that the client give him time to sell the furniture and he would then refund the payment. The husband came to the applicant’s shop with four armed men, demanding immediate payment or they would kill the applicant. Some other shopkeepers intervened and the husband and his associates departed, making further threats. As the applicant did not have the funds to repay the client, he consulted with his family, left his brother to close the shop and, in deep fear for his life, fled to Turkey in November 2012.
8.The applicant provided further variations to the narrative in his PV interview on 5 July 2019. He told the delegate that the man (whose name he does not remember) and his wife came to his shop to inspect their furniture. They stated that the furniture was not the style they had ordered and they did not want it any more. The man, who was armed, demanded a full refund or he would kill the applicant. The applicant explained that he did not have the full amount as he had purchased materials for the furniture and asked for some time to provide the refund. The man returned to the shop the following day with three or four other men and repeated his threats. It took the applicant almost three days to raise the 1.5 Million Dinars and fully refund the client. Some time after this he saw the man walking to his car nearby and the man looked at him. The applicant asserted that “I could see in his look that he would do something to me.” Following this event, the applicant decided to finish off all outstanding carpentry orders, close his shop and depart the country.
9.As can be seen from the summaries above, the applicant initially claimed that a militia member ran a shop and physically assaulted him. He has not repeated that claim. In relation to the current claim regarding his dispute with a customer who was a Mehdi Army member, the applicant’s evidence has varied on whether the furniture was delivered to the client or remained at the applicant’s shop. In his 2017 evidence the applicant claimed that he could not afford to repay the client so fled the country without making any repayment. I note however that the amount owing was stated as 1.5 Million Dinars, or around US$1,355.1 The applicant stated in his arrival interview that the cost of his travel to Australia in November 2012 was $9,000. It was unclear whether this was US or Australian dollars, however either amount significantly exceeds the amount he claimed he was unable to pay his client. The applicant now states that he did in fact repay the client, however the client would still seek to harm him “because he didn’t like that I argued with him”. This is a direct contradiction of his earlier evidence that he did not pay and, together with other variations in the evidence, leads me to doubt the overall veracity of the story. I accept as plausible that at some point during his career as a carpenter the applicant had a dispute with a client regarding the furniture he provided and he refunded the client’s purchase price. I do not accept that the applicant was threatened in any way by a member of the Mehdi Army or that he left the country in fear of a specific member of the Mehdi Army, of another militia group or anyone else. I consider that these elements of the applicant’s narrative are embellishments designed to further his claims for protection. I conclude that the applicant was of no adverse interest to any militia groups or individuals prior to departing Iraq in November 2012.
The IAA considered the applicant’s further claim that his house was deliberately burnt down at the behest of a member of the Mahdi Army. The IAA accepted that the applicant’s house was damaged and that his daughter was injured, as evidenced by video footage of the applicant’s damaged house and medical evidence concerning his daughter. However, the IAA did not accept that the applicant or his family were deliberately targeted as the IAA concluded that “the applicant was of no interest to the Mehdi Army, other militia groups or anyone else”. The IAA concluded that the house was damaged and the applicant’s daughter was injured in sectarian conflict, but did not accept that they were deliberately targeted (at [10]).
The IAA noted that the applicant had not claimed that he suffered from any disability or medical conditions despite having claimed in his statement of claims that he was partly paralysed for a period of 1.7 years after his daughter’s injury. The IAA found that he was not suffering from any disability or medical conditions requiring ongoing treatment at the time of its decision (at [11]).
The IAA accepted that the applicant was a moderate Shia Muslim but noted that the applicant had “not claimed that he has at any point declared or expressed any views that are opposed to the aims of religious fundamentalists or that he would desire to do so, should he return to Iraq” (at [12]).
The IAA was not satisfied, by reference to the above, that there was a real chance in the foreseeable future of the applicant facing harm due to his dispute with a customer, or due to any adverse interest from militia groups or individuals (at [15]-[16]).
Considering country information and the applicant’s personal circumstances, the IAA was not satisfied that the applicant faced a real chance of harm as a moderate Shia Muslim, due to sectarian violence, or on account of having sought asylum and spending some years in Australia, on return to Iraq or in the reasonably foreseeable future (at [16]-[19]).
Having regard to the above, the IAA found that the applicant was unable to meet the criteria for a protection visa. The IAA accordingly affirmed the Delegate’s decision (at [20]-[24]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court by way of an application filed on 17 December 2020. The applicant ultimately pressed the following ground contained within an amended application filed on 13 May 2021:
Ground 1
1.The second respondent (IAA) erred its reasoning that evidence was “varied” or a “contradiction” and its approach was legally unreasonableness or irrational.
Particulars
a.The IAA stated that the applicant’s evidence has varied on whether the furniture was delivered to the client or remained at the applicant’s shop. That finding is incorrect. The applicant did not give any evidence that the furniture remained at the shop. Contrary to the IAA, there was no alleged variance in the evidence.
b.The IAA stated that the applicant’s evidence was contradictory as first he said he did not have the funds to pay the client, and then he changed his evidence to he did pay the client. That finding is incorrect. The applicant did not give any evidence that he did not pay the client. The Delegate’s decision correctly records, his evidence was that: given the nature of the man’s threats, the applicant believed the dispute would not be settled even after he repaid the amount. Contrary to the IAA, there was no contradiction in the evidence.
c.The IAA incorrectly stated that the applicant could not pay afford to repay the client so he fled the country without making payment. However, he could afford to pay $9,000 to travel to Australia. That finding is incorrect in the following ways:
i.firstly, as stated above, his evidence was not he could not afford to pay, it was that he needed more time to pay;
ii.second, his evidence was not that fled without paying (see Delegate’s finding in b. above); and
iiithird, as the Delegate’s decision correctly records, his evidence was that: the applicant decided to liquidate his business assets, close the shop and leave Iraq; hence his money to travel to Australia came from closing his business.
Contrary to the IAA, there was no alleged inconsistency in the evidence.
d.The IAA stated that the applicant initially claimed that the militia member physically assaulted him and he has not repeated that claim. That finding is incorrect. The applicant did later claim that he “experienced an issue with someone who attacked me, who assaulted me or threatened me”. The later account may be more detailed than the former, and one may have a differing emphasis but they are not necessarily inconsistent.
e.Further the IAA simply attached the label “variation” and “contradiction” and moved immediately to an adverse finding of credibility. The IAA was required to assess the significance of that inconsistency and the weight to be given to it, which it failed to do.
f.In all the circumstances the IAA fell into legal unreasonableness and irrationality.
Principles
The applicant relied upon ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 (ASB17) at [42]-[44] per Griffiths J, Mortimer J (as her Honour was) and Steward J:
42.Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not…
43.On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person…
44.Some true “inconsistencies” 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. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], 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.
The applicant also relied upon AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [28] per Kenny, Griffiths and Mortimer JJ (as her Honour was):
28.… even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
However, the Court must exercise caution so as not to stray into a review of the merits of the case. It is not for the Court on judicial review to determine whether it considers an applicant has provided inconsistent or varied information over time. Rather, the Court must determine whether there was a proper basis for the IAA to have drawn the conclusions it did. If probative evidence can give rise to different processes of reasoning, or if logical, rational or reasonable minds may differ in respect of the conclusions to be drawn from evidence, then a reviewing court is unable to find that a decision is illogical, irrational or unreasonable “simply because one conclusion has been preferred to another possible conclusion”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] per Crennan and Bell JJ.
Particular (a) – whether the furniture was delivered
Particular (a) took issue with the Tribunal’s reasoning at [9], where it found:
9.… In relation to the current claim regarding his dispute with a customer who was a Mehdi Army member, the applicant’s evidence has varied on whether the furniture was delivered to the client or remained at the applicant’s shop…
The applicant submitted that there was no evidentiary basis for concluding that his evidence “varied” in this respect.
In a written statement dated 12 April 2017, the applicant stated (at CB 68):
…According to a contract, I arranged a bedroom for his wife. Strange enough, her husband refused the quality of the bedroom and demanded to cancel the contract and the return of the whole amount paid which is one and half million Iraqi Dinars. Due to the misunderstanding and the brutal method he used with me, I refused to recover the furniture and asked him to give me the opportunity to sell the furniture and then return the amount paid…
At the interview with the Delegate, the applicant stated at pages 6 to 7 of part A of the transcript that is before the Court (Transcript):
Interpreter: His wife happened to have ordered a bedroom furniture.
Interpreter: And I had made the order, the bedroom, as requested, and I have finished almost half of the bedroom furniture.
Interpreter: And then she came, and he came along with her, and they claim that that wasn't the style that's been ordered, and that they don't want it any longer, they don't want that furniture any longer.
Interpreter: … OK, so they demanded that I return or refund the money that I was handed over. I told them, how can I do that because I've already spent the money in purchasing the material.
When discussing the subsequent threats against him, the applicant later stated at page 8:
Interpreter: No, he wasn’t convinced, so I had to close the shop and collect the money so I can give it back to him.
At page 9, the applicant stated:
Interpreter: Before I leave, I had delivered, with my son, delivered all the furniture that belongs to the people, they have ordered, and then we closed the shop and then I left.
The applicant submitted that at no stage did he give written or oral evidence that he had delivered the furniture to the client or that it remained in his shop. He submitted that there was “not a skerrick” of evidence to support the IAA’s finding that his evidence varied in this respect, or alternatively that the finding was legally unreasonable, irrational or illogical: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 395 ALR 403 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ).
It may be possible to interpret the applicant’s evidence in the manner contended by him in these proceedings. The applicant did not necessarily state, in terms, that all of the furniture had been delivered to the client prior to the dispute, or that the furniture had at all times remained in his shop.
However, on balance, I consider that I am obliged to accept the Minister’s submission that it was open to the IAA to have interpreted the applicant’s evidence in the manner that it did.
Specifically, it was open to the IAA to have considered that the effect of the applicant’s written evidence had been that the furniture had been delivered to the client. This was potentially indicated by the applicant’s evidence that he had “arranged” the bedroom for the wife and had subsequently “refused to recover the furniture” after the disagreement arose (CB 68).
At hearing, the applicant submitted that there appears to have been a typographical error or something odd about this reference to recovery of the furniture. This was in circumstances where the applicant went on to say that he had asked for the opportunity to sell the furniture and return the amount paid. However, these concepts are not necessarily inconsistent. The applicant did not necessarily have to take recovery of the furniture in order to arrange for its sale. Further, the Minister’s interpretation of the applicant’s statement is consistent with the interpretation placed upon the applicant’s account in his representative’s submissions to the Department at CB 98, where it was stated that the applicant had “supplied a local militia identity with a special bedroom furniture order” and that a “dispute arose between them over the furniture after it was installed”.
I accept the Minister’s submission that it was also open to the IAA to have considered that the effect of the applicant’s oral evidence at interview was that the furniture had remained at the shop when the dispute arose. At interview, the applicant had stated that after the furniture had been ordered he had “finished almost half of the bedroom furniture” when the wife “came, and he came along with her” saying that they didn’t “want that furniture any longer” (Transcript A p 7). This, at least potentially, could have been interpreted as communicating that the furniture was unfinished and undelivered at the time that the couple came to the shop saying that they no longer wanted it.
Whilst interpretations of this evidence may differ, this is not a sufficient basis upon which a reviewing Court may find illogicality: SZMDS at [131].
Particulars (b) and (c) – repayment of the client
Particulars (b) and (c) contended that the IAA’s reasoning regarding repayment of the client at [9] of its decision was not open to the IAA. As set out above, the IAA reasoned (footnote omitted):
9.… In his 2017 evidence the applicant claimed that he could not afford to repay the client so fled the country without making any repayment. I note however that the amount owing was stated as 1.5 Million Dinars, or around US$1,355.1 The applicant stated in his arrival interview that the cost of his travel to Australia in November 2012 was $9,000. It was unclear whether this was US or Australian dollars, however either amount significantly exceeds the amount he claimed he was unable to pay his client. The applicant now states that he did in fact repay the client, however the client would still seek to harm him “because he didn’t like that I argued with him”. This is a direct contradiction of his earlier evidence that he did not pay and, together with other variations in the evidence, leads me to doubt the overall veracity of the story…
The applicant contended that there were three issues with this reasoning:
(a)firstly, it was contended that the evidence was not contradictory because the applicant did not give evidence that he did not or could not pay the client;
(b)secondly, it was contended that his evidence was not that he fled without paying; and
(c)thirdly, it was contended that the applicant’s evidence was as was recorded in the Delegate’s decision. Namely, that: the applicant decided to liquidate his business assets, close the shop and leave Iraq; hence his money to travel to Australia came from closing his business.
The applicant’s written statement dated 12 April 2017 (at CB 68-69) contained the following evidence:
…Regrettably, I found myself entangled in an unbalanced duel and threats with lethal consequences in case of failing to immediately pay the amount. That husband did not allow a compromise. He soon came accompanied by four armed persons. They threatened me either to pay immediately the amount or face death and the termination of my life. He was putting his hand on the revolver fixed at the side of his pants. I asked them to give me some time to arrange for the amount and paying it to them because I do not have the required money with me. His face was frowning and fearful and his threats were indeed horrible.
Some nearby shop owners intervened as they heard the loud threats. They tried to convince him to give me enough time to pay the amount. Therefore he left together with his group menacing me with punishment and torture in case of disobeying them and failing to pay immediately the amount.
After arriving home, I sat with my wife, mother, brother and some relatives. We discussed our relations with the Mahdi Army. There was a consensus that dispute with those thugs is terrible and the future is bleak. The dispute would not be settled even after the payment of the amount. In fact the amount required was not yet available.
With this deadlock facing me; and, with my peace of mind agitated and disturbed, I decided to leave Iraq. I headed to Turkey as my passport was still valid because I previously travelled abroad. I closed the shop and entrusted my son… and another friend with the liquidating it…
The applicant submitted that he at no point in the statement said that he could not afford to repay the client or that he did not pay the client at all. Rather, his evidence was that the money was not “yet available”. This, it was submitted, was not inconsistent with the applicant’s subsequent evidence at interview as follows (Transcript A p 8 to 9):
Interpreter: … he wasn't convinced, so I had to close the shop and collect the money so I can give it back to him.
Interviewer: OK, so you ended up repaying him the money?
Interpreter: Yes.
Interviewer: So why do you think that he will still target you upon return if you've already paid the, if you've already repaid the money?
Interpreter: Because he didn't like that I had argued with him when he came asking for the money. I lost, I was, I lost my temper and I argued with him. So he didn't like that.
Interviewer: How long did it take you from when he first approached you asking you to repay the money, how long did it take you to get that money and repay him?
Interpreter: Almost three days. I wanted to give him the money so I get rid of him.
Interviewer: OK, so then after you repaid him the money, did anything happen?
Interpreter: OK, I heard, as I heard from others that he, he won't leave me alone, and I saw him once passing by his car and looking at me. And I was nervous. I felt that he is targeting me.
Interviewer: OK, apart from that one incident where you saw him walking past his car, did anything else happen after you repaid him the money?
Interpreter: The way he was looking at me, it was as if he is telling me that "I'll come after you". And I could see that in his look. So I was concerned that he would do something to me, so I closed my shop.
Interviewer: OK, so you closed your shop permanently after this?
Interpreter: Before I leave I had delivered, with my son, delivered all the furniture that belongs to the people, they have ordered, and then we closed the shop and then I left.
Interviewer: So what time period from when you first received the threat from this man then did you leave Iraq?
Interpreter: Maybe within a week.
I accept that the applicant did not directly state in his 2017 statement that he had never repaid the money because he could not afford to do so. However, I accept the Minister’s submission that it was not logically closed to the IAA to have interpreted the applicant’s evidence in the manner that it did. The applicant said in his statement that his family had formed the view that the “dispute would not be settled even after the payment of the amount” and that in any event, “the amount required was not yet available”. He then stated that with “this deadlock” facing him, he had decided to leave Iraq. The applicant then described leaving Iraq and entrusting his son and friend to close and liquidate his shop. The applicant made no reference to paying the client in his statement, either before leaving Iraq or afterwards.
Considering the above, I am not persuaded that it was logically closed to the IAA to have interpreted the applicant’s evidence in his statement as being to the effect that he had not been able to afford to repay the money at the time that he had left Iraq and that he had therefore fled the country without paying. Although the applicant had stated that he had not considered that the dispute would be settled even after payment, he also stated that the amount was “not yet available” at a time in his statement that appears to have been prior to his departure from Iraq. The applicant’s subsequent evidence about paying the client’s husband days after being asked (and apparently before he left Iraq) in order to “get rid of him” was arguably inconsistent with his previous evidence. I am not persuaded that it was closed to the IAA to have considered that the applicant’s subsequent evidence that he did in fact repay the money but the husband would seek to harm him “because he didn’t like that I argued with him” to have been inconsistent with the effect of his previous evidence that he did not pay and that his inability to pay at the time (together with his concerns that payment would not, in any event, settle the dispute) had prompted him to flee Iraq.
I am also not persuaded that it was closed to the IAA to have noted that the cost of the applicant’s travel exceeded the amount that the applicant claimed that he had been unable to pay to his client. As I have found above, at least part of the “deadlock” that the applicant claimed had caused him to flee Iraq was that the money demanded was not yet available around the time of his claimed departure. I do not accept that the IAA overlooked or failed to consider the applicant’s evidence that he had closed his shop and had liquidated his assets in this regard. Whilst the applicant suggested that this may have been the source of funds for travel, there does not appear to have been direct evidence of this before the IAA. At most, I was directed to the applicant’s evidence at his interview with the Department to the money he had been paid not being “liquid money” as he had used it to buy materials, which was the reason he had been unable to repay the client straightaway (Transcript B p 3). In any event, as was submitted by the Minister, there was no question that the applicant had managed to acquire the funds to travel to Australia. What the IAA noted at [9] was that the amount paid for his departure appeared to have exceeded the amount that the applicant’s evidence had indicated he had been unable to pay at a time shortly before his departure from Iraq. It has not been demonstrated that this reasoning was logically closed to the IAA.
Particular (d) – repetition of the claim of physical assault
Particular (d) contended that the IAA erred in its reasoning at [7]-[9] of its decision, which was relevantly as follows:
7.In his arrival interview of January 2013 the applicant stated that he left Iraq because he had been threatened by a member of the militia. He stated “one of the militia members owned a shop nearby, and we talked to him once and he bashed me”. The applicant did not repeat this claim in his detailed statement of claims lodged in June 2017 or at the PV interview…
9.As can be seen from the summaries above, the applicant initially claimed that a militia member ran a shop and physically assaulted him. He has not repeated that claim….
It was contended that this reasoning was incorrect, as the applicant had later claimed that he “experienced an issue with someone who attacked [him], who assaulted [him] or threatened [him]” (Transcript A p 6).
The applicant referred to the cautions that have been expressed in cases such as MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 and Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 (AYJ17) about placing too great a reliance upon early interviews. The applicant observed that the Delegate had not relied upon the issue identified by the IAA.
For completeness, I note that the interview the IAA appears to have been considering was more in the nature of an “entry interview” than an “arrival interview” as is referred to in cases such as AYJ17. I did not understand this to be disputed by the parties.
At the interview, however described, the following was stated in relation to the applicant’s reason(s) for leaving his country of nationality (per original):
The Militia threatened me and they destroyed my future.
Q. Do you know why the threatened you?
A.One of the Militia members owned a shop nearby, and we talked to him once and he bashed me.
The applicant subsequently gave evidence at interview that he “experienced an issue with someone who attacked [him], who assaulted [him] or threatened [him]” (Transcript A p 6). The applicant submitted that this was consistent with the “spirit of what he expressed, in a summary form” at the earlier interview. The applicant submitted that this was also consistent with his statement at CB 68, where he said: “[The husband] soon came accompanied by four armed persons. They threatened me either to pay immediately the amount or face death and the termination of my life. He was putting his hand on the revolver fixed at the side of his pants”.
The applicant’s oral evidence at his protection visa interview did not clearly state that the applicant had been physically assaulted. Whilst the applicant referred to being “assaulted” or “threatened”, this and the balance of his evidence potentially referred to assaults or threats that were verbally communicated. This was consistent with the applicant’s written statement made in support of his protection visa application, where he gave evidence that he had been threatened but did not state that he was physically assaulted.
The applicant submitted that the lack of later reference to any physical attack was not an obvious inconsistency that was critical to his claims. The applicant submitted that, as the Delegate’s reasoning indicated, there was not necessarily an inconsistency that arose.
Whilst the Delegate found that the applicant had given “generally consistent” evidence “regarding his carpentry business”, the Delegate did not find that the applicant’s evidence was entirely consistent. The Delegate had considered that there were a “number of inconsistencies in the finer particulars of the applicant’s testimony”, although the Delegate had been willing to give him the benefit of the doubt regarding his claim to have been threatened by a man in the Mahdi Army (CB 150).
In any event, the IAA was not obliged to reason in the same manner as the Delegate. I accept the Minister’s submission that it was open to the IAA to have observed, as the IAA did at [7] and [9], that the applicant had not repeated his claim in his arrival (or rather, entry) interview that he had been physically assaulted by a militia member who ran a shop. As the Minister submitted, the concern was not simply that the applicant had omitted detail of a later developed claim but, rather, that the applicant had not repeated his claim that a militia member, who owned a shop nearby, had “bashed” him. I accept the Minister’s submission that the IAA was entitled to place weight on the differences that it had identified for the purposes of drawing adverse conclusions about credibility.
Particular (e) – the significance of the inconsistencies
The applicant contended that the IAA also fell into error by simply attaching the label “variation” and “contradiction” to the applicant’s evidence and moving immediately to an adverse finding of credibility. The applicant submitted that the IAA was required to assess the significance of the inconsistencies and the weight to be attributed to them, which it failed to do.
In this regard, the applicant relied upon AVQ15 at [28] and ASB17 at [42]-[44], which are set out above. The applicant contended that there was nothing in the IAA’s decision to show that the IAA assessed the significance of the inconsistencies or the weight to be attributed to them. The applicant submitted that the IAA’s decision did not explain why the IAA made the findings that it did on the basis of ostensibly minor inconsistencies: EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [148] per Stewart J.
However, I accept the Minister’s submission that AVQ15 does not necessarily require a decision maker to explicitly record in their statement of reasons that they were conscious of the matters referred to at [28] of that decision. Nor is such a requirement imposed by ASB17.
In the present case, it is sufficiently apparent from the IAA’s reasoning that the IAA did not consider that the issues it identified concerned peripheral matters, but rather matters affecting the central narrative relating to the applicant’s principal claim regarding what he said had transpired with the man from the Mahdi Army. It is apparent from the IAA’s reasoning that the IAA found the variations in this narrative to be sufficiently significant as to bear upon the applicant’s credibility, although it only appears to have concluded that it would not accept the applicant’s claims in this regard after the issues it had identified were considered together. There is nothing in the materials to indicate that the IAA was not aware or conscious of the challenges that may be faced by asylum seekers in giving evidence. The applicant has not, for example, identified any submission that he made regarding the application of this in his particular case that was not considered by the IAA.
I am not persuaded that it has been demonstrated that the IAA failed to appreciate the nature of its task in the present case, or that it failed to consider in a manner that was open to it the weight to be attributed to the issues that it had identified in the applicant’s evidence. The IAA was not obliged to precisely quantify the weight attributed to each of the issues it identified in collectively weighing them in its evaluation of the applicant’s account. I accept the Minister’s submission that the approach taken by the IAA in the present case is sufficiently apparent from the nature and context of the IAA’s reasoning.
CONCLUSION
For the above reasons, I am not persuaded that it has been demonstrated that the IAA’s reasoning was affected by jurisdictional error. The application must therefore be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 6 December 2023
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