FEP19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 737

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 737

File number(s):

SYG 3429 of 2019

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

23 May 2025

Catchwords:

MIGRATION – Administrative Appeals Tribunal –Protection visa – Whether the Tribunal’s adverse credibility findings on critical issues amounted to jurisdictional error – sole ground of judicial review upheld –Tribunal decision quashed – matter remitted to the Tribunal

Legislation:

Migration Act 1958 (Cth) ss 36, 65

Migration Regulations 1994 (Cth) Schedule 2

Cases cited:

 CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

EVI19 v Minister for Immigration [2022] FCA 51

Fox v Percy [2003] HCA 22

Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane 274 CLR 398

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA545

Division:

Division 2 General Federal Law

Number of paragraphs:

74

Date of hearing:

6 May 2025

Place:

Parramatta

Counsel for the Applicants:

Mr Poynder

Solicitor for the Applicants:

Mr Ahmadi (Cambridge Law)

Counsel for the First Respondent:

Mr Tran

Solicitor for the First Respondent:

Mr Pattinson (Mills Oakley Lawyers)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 3429 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FEP19

First Applicant

FEQ19

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	23 MAY 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.A writ of certiorari shall issue, quashing the decision of the (then) Administrative Appeals Tribunal made on 5 December 2019.

3.The matter is remitted to the Administrative Review Tribunal for further consideration.

4.A writ of mandamus shall issue, directed to the Administrative Review Tribunal, requiring it to determine the Applicant’s application according to law.

5.The First Respondent is to pay the Applicants’ costs fixed in the sum of $8,371.30.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for review of a decision of the (then) Administrative Appeals Tribunal (“the Tribunal”), dated 5 December 2019, affirming a decision of a delegate of the Minister (“the delegate”) of 3 February 2017 not to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2. For the reasons set out below, the judicial review application is allowed.

   BACKGROUND

3. The applicants are citizens of Iran. The first applicant (the applicant) is the husband of the second applicant (the applicant’s wife).

4. The applicants last arrived in Australia on 2 January 2016, purportedly to visit their daughter, who is an Australian citizen. The applicants had previously visited Australia 3 times, being in 2010, 2013 and 2014.

5. The applicants lodged their application for protection visas on 21 April 2016. The applicant claimed that he and his wife converted from Islam to Christianity and now follow the Jehovah’s Witness faith.

   THE TRIBUNAL’S DECISION

6. At [3]-[7], the Tribunal set out the criteria for a protection visa as prescribed under s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

7. The Tribunal had regard to Ministerial Direction No. 56 and took into account the Procedures Advice Manual 3 (“PAM3”) guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”).

8. The applicants jointly claimed that they had converted from Islam to the Jehovah’s Witness faith and would be killed as apostates or harmed by the general public if they returned to Iran. The applicant claimed that he would be arrested and possibly killed by the Iranian government on account of his conversion to Christianity. The applicant’s wife had a similar claim and stated that her family members were aware of her conversion and may harm her [14]. The applicants became aware of this threat to their lives through their son, who had fled to Turkey in March 2016 after the family members became aware of their conversion. The son had also converted to the Jehovah’s Witness faith.

9. The applicant claimed that in 2006, on a trip to the Netherlands to visit his daughter and son-in-law, who had both gone to the Netherlands and applied for protection on the basis of converting to Jehovah’s Witness, he learnt about Christianity [15]. On recurring trips to the Netherlands, the applicant went to religious gatherings over a period from 2006, 2008, 2011, 2014 and 2016 [16].

10. The applicant’s claimed their interest in the faith increased, and on separate trips to Australia in 2010 and 2013, the applicant met with a Jehovah’s Witness adherent and studied the faith with him. In 2013 he participated in a religious gathering [16].

11. The applicant stated that he no longer considered himself a Muslim when he was baptised in January 2017 and felt himself to be a Christian in and around 2013, however only his wife and daughter were aware. The applicant’s wife had not yet been baptised, however she attended religious gatherings and stated that her husband had a different level of faith knowledge to her because he is “intelligent and completed the steps more quickly” [18]-[19].

12. The applicants gave evidence that their son had informed a cousin that the family was interested in the Jehovah’s Witness faith and had made a private Facebook post in relation to the conversion when the applicants were in Australia. The Tribunal considered this to be “strange” given that the applicants had been to Australia on several occasions and had been interested in the faith since 2014 or 2015. However, they claimed the timing of the disclosure was coincidental causing the applicants to apply for protection in Australia around that time [24]. The Tribunal noted that the timing of the son’s Facebook post on 10 March 2016 and the applicant’s re-entry into Australia on 16 February 2016 were “extraordinarily coincidental” in allowing the applicants to apply for a protection visa [25].

13. It was put to the applicant’s at [27] that upon the Tribunal’s examination of their son’s Facebook page, there was no information of the sought that had been provided to the Tribunal on photocopied pages. The site in fact appeared to lack religious content and the son’s social media footprint did not indicate that he was someone with a love of a newfound religion [27]. The applicant’s stated that the evidence of the Facebook posts were provided by their daughter. The applicant had photos of their son speaking at religious gatherings.

14. The applicant provided evidence to the Tribunal about the type of study and education he had undertaken in respect of Christianity in Iran from 2006 – 2013 and how he had gotten access to the material to study [31]-[33]. The Tribunal then separately asked the second named applicant if the applicants had undertaken study into Christianity while in Iran. The Tribunal tested the veracity of the information provided by both applications [34]-[37].

15. The Tribunal contacted some of the witnesses from a list of 19 people provided to the Tribunal. At [39]-[46] the Tribunal provided a summary of the evidence of the applicant’s son in Turkey.

16. The applicant’s gave evidence about their communications with a Dutch couple in Armenia, who they had met in the Netherlands and studied with them, even while in Iran. This couple was sworn in as witnesses during the Tribunal hearing and they provided evidence about how they kept in contact with the applicants, if and how they sent or received material with the applicants and how they conducted study or discussions [51]-[54].

17. In considering the claims and evidence advanced by the applicants, the Tribunal made the following findings:

    ·The Tribunal gave little weight to a letter from a psychologist regarding the second named applicant stating that to benefit her psychological condition the Tribunal should be positively disposed to her claim. It stated the applicant witnessed a hanging in Iran and had daily flashbacks. There was no evidence presented that she sought mental health treatment for this.

    ·Out of the 19 potential witnesses provided by the applicant’s adviser, the Tribunal was satisfied the most important witnesses were questioned and the written letters from the others were taken int account [63].

    ·It did not find the applicants to be reliable, credible or truthful witnesses.

18. As to the main claim made by the applicants the Tribunal made the following findings:

    ·The Tribunal did not accept that the applicant’s had genuinely converted to the Jehovah’s Witness faith but had done so to advance their protection visa claims [66].

    ·It noted that the link in the applicant’s immediate family’s conversion to the faith and successful asylum applications was not to be ignored. It acknowledged that individuals could take several paths in finding a new religion, however the applicant did not appear to look at other forms of Christianity other than the Jehovah’s Witness faith after stating he wanted to find out more about Christianity [68].

    ·It did not accept the evidence regarding the applicant’s son informing his cousin about the conversion and that his Facebook page posts would become known. Further, it did not accept that the applicant was unaware the page was private, as he had been given it by his daughter; or the submission provided post-hearing that the private setting was to avoid being on public social media and outed in Iran; or the later adviser’s claim that it could be inferred from a photo on the public page that the applicants had converted [74]-[78].

    ·The Tribunal could not be satisfied that even with the applicant’s claim that he is known within the Afghan and Iranian communities for his door-to-door preaching, that he would be imputed with having converted faiths. Country information from the DFAT Country Information Report – Iran dated 7 June 2018, footnoted at page 12 of the Tribunal decision indicates that Iranian authorities have little interest in prosecuting failed asylum seekers for converting to Christianity outside of Iran [78].

19. The Tribunal at [79]-[81] addressed whether the applicant would be involuntarily returned to Iran with or without a passport either now or in the reasonably foreseeable future. It did not accept that the applicant would be harmed on voluntary return, as it found that the Iranian government indicated that it will not accept involuntary returnees. It found that there was no real reason the applicants would face persecution under s 5J(6) of the Act.

20. The Tribunal was not satisfied the applicants satisfied the criterion set out in s 36(2)(a) or (aa) of the Act for the grant of a protection visa. Further they would also be unable to satisfy the criterion set out in s 36(2)(b) or (c) of the Act.

    GROUNDS OF JUDICIAL REVIEW  

21. Leave was granted to rely upon an Amended Application filed with the Court on 14 April 2025 and annexed to the applicant’s written submissions. In the Amended Application, the applicants abandon the grounds of review initially relied upon in the Originating Application.

22. The applicants now rely on the following sole ground of review:

    The decision of the second respondent (Tribunal) was based on adverse credibility findings on critical issues that were arbitrary, capricious, irrational, and lacking in evidentiary foundation.

    (a)The applicants’ claim for protection was that they had converted from Islam to the Jehovah’s Witness faith as a result of which they were at risk of persecution if they were to return to their home country, Iran.

    (b)The Tribunal disbelieved the applicant’s claim on several grounds, each of which amounted to jurisdictional error.

    (i)First, the Tribunal at [67]-[68] doubted the validity of the applicants’ conversion in the absence of evidence of a “faith journey”. There was no evidentiary or rational basis for this finding.

    (ii)Second, the Tribunal at [69]-[73] found inconsistencies and implausibilities with regard to the applicant’s evidence about the frequency and method that they had received remote religious instruction while they were in Iran, based on a misrepresentation of the evidence and findings made without any evidentiary without foundation.

    (iii)Third, the Tribunal at [74]-[75] expressed concern about the timing of the applicants’ claim for protection in Australia, when their son had recently told a cousin in Iran about his conversion, in a manner that was irrational and failed to consider evidence.

    (iv)Fourth, the Tribunal at [77] regarded the failure of the applicant’s son to make public Facebook postings of his and the applicant’s participation in the Jehovah’s Witness faith as being adverse to the applicants in circumstances which were irrational.

    THE APPLICANT’S SUBMISSIONS

23. The now sole ground of judicial review is a complaint that the Tribunal’s decision was based on adverse credibility findings on critical findings that were arbitrary, capricious, irrational, and lacking in evidentiary foundation. The ground of judicial review then particularises several alleged errors arising from the Tribunal’s disbelief of the applicant’s claims.

24. It is submitted that the Tribunal had no evidentiary or rational basis to doubt the validity of the applicant’s faith conversion as a result of the absence of the faith journey. The applicants adduced evidence that they were introduced to the Jehovah’s Witness faith through their daughter and son-in-law on their visits to the Netherlands and it could have been expected that the applicants would be attracted to this religion. It follows then that there is no basis to expect a person to undergo a faith journey before adopting a new religion.

25. The applicants allege that the Tribunal misrepresented evidence regarding the applicant’s frequency and method of receiving remote religious instruction while they were in Iran. The applicant relies on the transcript of the Tribunal hearing that was tendered to the Court.

26. The Tribunal at [69] found the applicant’s account of the remote religious instruction they undertook from the daughter to lack credibility and be inconsistent. The Tribunal correctly recorded that the applicants talked on the phone with their daughter monthly or every two months from 2008 – 2010. The first named applicant indicated, among other things that for the period following 2010, they did not know “exactly how often” they had talked on the phone with their daughter. The applicant’s wife’s evidence as to this point was also uncertain. On that basis the applicant submits that a fair reading of their evidence indicates there was no material inconsistency.

27. Further, there was no inconsistency where the applicant had said their contact was only with his daughter and son in law in relation to the communication from Iran (transcript page 21, lines 27-33), whereas the applicant’s wife referenced contact with her daughter and people in the Netherlands was in relation to contact outside the calls from Iran (transcript page 24, lines 9-13).

28. Regarding evidence from the couple in Netherlands, as to the technical means of communication, Counsel for the applicant submitted that it is immaterial that the applicant mentioned the communication occurred only on Skype, whilst other witness referenced WhatsApp, Telegram and Skype. This is in circumstances where the applicant stated that he didn’t know how to run a Facebook account and only used the telephone (transcript page 17, lines 9-27). The applicant’s agent had also indicated that the applicant was unfamiliar with the names of different applications and had relied on the son for assistance. One of the witnesses from the Netherlands stated that there was communication via Skype, which was consistent with the applicant’s evidence.

29. The Tribunal’s suggestion that the daughter, holding up scripture passages to the screen on Skype, when it was plausible that the material could have been sent via encrypted application and then deleted infers a greater knowledge of the use of information and communication technologies than was possessed by the applicants. Further, there is no evidentiary or rational basis as to why the latter means of reading documents would be preferable to the former.

30. The Tribunal raised its concerns about the timing of the applicant’s claim for protection visas. This concern is irrational and has no evidentiary basis, as it failed to consider several issues. Firstly, the applicant’s son’s exploration of the faith had reached a stage where he wanted to adopt the faith, once he had visited Albania and met the husband of the couple from the Netherlands and other people in person. A person such as the applicant’s son would “naturally” want to share his experience of the new evangelical religion he had adopted with his close cousin. The Tribunal suggests there was a conspiracy between the applicants and their son without finding this to be the case. The son’s previous unsuccessful claim for asylum in Australia was immaterial.

31. The applicant suggests that the son’s private Facebook page might have suggested that he did not want a public association with Jehovah’s Witness, although the explanation provided to the Tribunal for this was rejected. The Tribunal’s finding that the applicant ought to have known that the Facebook page was private given it was provided by their daughter was “nonsense”. The claim was that the applicant’s son had informed his cousin about the conversion to Christianity and that the Facebook posts had been seen by relatives and acquaintances at which stage “everyone went crazy”. The Facebook posts alone were not the cause of the discovery of the applicant’s conversion.

    THE FIRST RESPONDENT’S SUBMISSIONS

32. As to the applicant’s allegation of illogicality or irrationality of the Tribunal’s reasoning,  the first respondent places reliance on Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA545 at [25], citing Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309 at [62] (Griffiths and Moshinsky JJ) to support the proposition that:

    [I]t must be accepted that the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence.

33. The Tribunal’s reasonings must be read in the context of the wider set of reasons for not accepting the applicant’s claims. Although each doubt of the credibility of the applicant’s claims could undermine the credibility of their other claims, it does not necessarily follow that it  had to do so. This was a matter of determination for the Tribunal. It is possible that each doubt, inconsistency or implausibility could reinforce the other doubts, inconsistences and implausibility’s found and given weight.

1. The first respondent then considers each particular in turn.

2. Particular (b)(i) states:

   [T]he Tribunal at [67]-[68] doubted the validity of the applicants’ conversion in the absence of evidence of a “faith journey”. There was no evidentiary or rational basis for this finding.

3. This particular should be rejected on the ground that the Tribunal’s reasoning at [67]-[68] of the decision was rational and open to it and this complaint is a disagreement on the merits. The Tribunal grappled with the evidence provided by the applicants. However, it did not, as argued by the applicant, say that a faith journey is necessary in every case. The Tribunal acknowledged the many paths that can be taken in the journey of adopting a new faith, and in doing so, paid close attention to the evidence and attempted to grapple with the likelihood that the applicants were or were not telling the truth.

4. Finally, there was no evidence required for the Tribunal to question the credibility of the conversion on the basis that it was sudden. It was open to them to act upon “common sense” and a “reasonable appreciation of human experience”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [39] (Allsop CJ, Besanko and O’Callaghan JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [20].

5. Particular (b)(ii) states:

   [T]he Tribunal at [69]-[73] found inconsistencies and implausibility’s with regard to the applicant’s evidence about the frequency and method that they had received remote religious instruction while they were in Iran, based on a misrepresentation of the evidence and findings made without any evidentiary without foundation.

6. The applicant argues that the evidence of the first and second applicant was so uncertain that the Tribunal could not draw the conclusion that the evidence was inconsistent with each other. This is an invitation to merits review. The interpretation of the evidence was a matter for the Tribunal.

7. It was open for the Tribunal to treat the evidence given by the first named applicant at Transcript page 21, lines 1-13 as evidence that the applicant’s daughter had given them instruction monthly or every two months. The applicant confirmed that the daughter increased the frequency of religious instruction to two, or three times a month, which is a confirmation that the frequency was no more than once a month before that. The transcript of the husband’s evidence at Transcript page 21, lines 1-13 reads:

   TRIBUNAL: … Sorry - how often would you use Skype to receive religious instruction?

   INTERPRETER: Whenever my daughter was free, was able to contact us and contacted us, we were using - we were in contact; whenever my daughter had the possibility to.

   TRIBUNAL: How often would that be?

   INTERPRETER: Well, I can't really remember exactly how often. But whenever she had the time to contact us we were going to - talking about religion; maybe once every two months, once every month or once every three months. I do not know exactly how often.

8. The wife’s evidence at Transcript page 23, lines 14-30 reads:

   TRIBUNAL: Sorry. How regularly would you undertake instructions?

   INTERPRETER: Well, I do not now remember when and how, but whenever we had the occasion we used this card to get in touch with daughter and son-in-law.

   TRIBUNAL: But you don't know how often that was?

   INTERPRETER: One some occasions it may be or some – for some period it may have been maybe once a week or once every two weeks, but it was not known - it was not regular or not.

   TRIBUNAL: So between 2010 until you left Iran, it was – that was the pattern. It might have been once a week, it might have been once every two weeks. It might have been – was that pattern constant?

   INTERPRETER: Yes. But I must say that it was in secret.

9. The applicants contend that the Tribunal’s second question was a vague proposition. However, that is not self-evidently true and is an invitation to conduct merits review.

10. Another inconsistency raised was that the first-named applicant said their contact was only with their daughter and son-in-law, while the second-named applicant said they had contact with their daughter or with people they had met at gatherings [70].

11. The transcript of the first applicant’s answer states (transcript page 21, lines 27-35):

    INTERPRETER: In 2015, our study via Skype increased.

    TRIBUNAL: To how frequent?

    INTERPRETER: It was two, three times a month.

    TRIBUNAL: Just with your daughter and son-in-law?

    INTERPRETER: Yes.

12. The transcript of the first applicant’s answer states (transcript page 24, lines 5-13):

    TRIBUNAL: Okay. And did you have any other kind of contact with other Jehovah's Witnesses outside of Iran or was your contact only with your daughter and son-in-law?

    INTERPRETER: No, I was in contact with Jehovah's Witness on the doors. There was Witness whom I met as a guest or in congregations when I went to Holland and the congregations or gathering that my daughter and my son-in law took us and in Australia, also only people whom I met being gatherings.

13. The first respondent submits that the Tribunal’s interpretation of the evidence was open to it despite the applicant’s characterisation of the evidence.

14. The Tribunal noted the inconsistency about the evidence from the Netherlands couple stating they had communication with the applicants via WhatsApp, Telegram and Skype, whereas the applicants never referred to receiving instructions from WhatsApp and the letter of support never mentioned these Dutch witnesses. The applicant’s submissions do not seek to deny the differences in evidence but downplays the significance of them. This assessment is a matter for the Tribunal. The Tribunal did not solely rely on these differences, however the differences in that evidence when viewed alongside other matters, meant the Tribunal was justified in taking it into account.

15. As to the implausibility noted in the Tribunal’s decision at [73], it is submitted that the Tribunal’s point was that it was “implausible” that someone genuinely converting faiths would do so based on the method used by the applicants rather than receiving scripture via other apps. The applicant’s submission that suggests that they could have used other means of receiving the scriptures is to ascribe a greater knowledge of the use of technology than they had. However, that submission does not show that another reasoning was not open to the Tribunal. The Tribunal’s reasons at [73] did not impute a degree of significant technological understanding to the applicants, it would have been open to their daughter and son-in-law to have explained to them these other apps.

16. Particular (b) (iii) states:

    [T]he Tribunal at [74]-[75] expressed concern about the timing of the applicants’ claim for protection in Australia, when their son had recently told a cousin in Iran about his conversion, in a manner that was irrational and failed to consider evidence.

17. The Tribunal’s reasoning was that it did not believe that the applicant’s son had himself converted to Christianity, as the evidence of any argument with his cousin was not genuine, as it was the basis of the sons claim to protection in Turkey. As to this point, the Tribunal’s reasoning was entirely open to it.

18. Particular (b)(iv) states:

    [T]he Tribunal at [77] regarded the failure of the applicant’s son to make public Facebook postings of his and the applicant’s participation in the Jehovah’s Witness faith as being adverse to the applicants in circumstances which were irrational.

19. The applicant’s submission does not engage with the reasoning of the Tribunal. The Tribunal took issue with material that had been provided to it on the condition of being publicly available when it in fact was not. The Tribunal could reasonably rely on this, along with other circumstances to doubt the credibility of the applicants. The applicant’s submission at [23] seeks to downplay the issue posed without demonstrating that it was not open to the Tribunal to consider this adversely to the applicants among other matters.

    CONSIDERATION

20. With respect to credit findings, it is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]. Therefore, a Court undertaking judicial review, should exercise caution before finding that adverse credibility findings by the Tribunal are arbitrary, irrational and lacking in evidentiary foundation. Further the Court must exercise great care not to undertake impermissible merits review.

21. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:

    … Must be to ask whether logical or rational reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.

    Further, in considering the reasons of the Tribunal, it is important not to look too closely at them in pursuit of error. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:

    The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.

22. That said, this Court is bound to consider the reasons of the Tribunal where the outcome of the matter revolves around adverse credit findings with care, so as to ensure those credit findings are not based on “minor inconsistencies and trivial errors” and have “logical and probative weight”. This must be done however, without the advantage of assessing the demeanour of the witnesses giving evidence, noting however that in this case a transcript of the Tribunal’s hearing has been made available to the Court.

23. In this matter, the applicant relies on a number of findings, each of which it is said was without evidentiary or rational basis for the finding. In EVI19 v Minister for Immigration [2022] FCA 51 at [36] Stewart J had the following to say:

    It is well established that credibility findings are not immune from judicial review; GCQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 253 FCR 496 at [37] – [38] per McKerracher, Griffiths and Ranjiah JJ. Credibility findings, local findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made

24. The applicant’s claim for protection was on the basis they had converted from Islam to the Jehovah’s Witnesses faith. On that basis, they claimed they were at risk of persecution if they were to return to the home country of Iran.

25. This conversion is in circumstances where the applicant’s daughter converted to the Jehovah’s Witness faith in the Netherlands in 2006 and successfully applied for asylum there. It is also the case that the applicant’s son has also claimed he has converted to the Jehovah’s Witness faith and has sought asylum in Turkey.

26. Particular 1(b)(i) complains that the Tribunal was concerned at [67]-[68] that the applicant’s did not appear to have undergone a “journey of faith” in which they explored humanism or other religions, or even other branches of Christianity. However, in doing so the Tribunal cautioned itself that that there may be several paths that one can take to finding a new religion. The applicants complain there was no evidentiary or rational basis for this finding.

27. The Court does not accept this submission. The Tribunal noted that the applicants had been introduced to the Jehovah’s Witness faith by their daughter when they visited her in the Netherlands. This was in circumstances where she had successfully applied for asylum due to her conversion. This entitled the Tribunal to have some scepticism as to the true nature and reasons for any conversion by the applicants. The caution noted by the Tribunal, that there may be many paths one can take to finding a new religion, indicates that this factor alone was not sufficient to reject the applicant’s claims. The commentary by the Tribunal does not evidence irrationality and the Court is satisfied there was an evidentiary basis for the finding. This particular has no merit.

28. Ground 1(b)(ii) complains that the inconsistencies and implausibility’s about the frequency of religious instruction received remotely while the applicants were in Iran was based on a misrepresentation of the evidence and the findings were made without any evidentiary foundation.

29. The evidence given to the Tribunal by the applicants is set out above. The applicants submit their evidence was so uncertain so that it could not be said to be inconsistent with each other. The respondent says this is a blatant invitation for the Court to undertake impermissible merits review.

30. Where a claim is made that there is no evidentiary foundation for an adverse credit finding, this of necessity requires the Court to consider and evaluate the evidence in order properly consider the claim and determine if the finding is rationally made and based upon facts having logical and probative weight. In so doing, the Court does not undertake merits review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]-[38].

31. The Tribunal hearing took place in 2019. Both applicants were asked to recall details of the frequency of religious instruction they received from their daughter during the period 2008-2010, and then after that until 2016. The Tribunal was also concerned as to variations in the methods by which this communication took place. That is, was it via Skype or another communication application?

32. Firstly, the Court does not consider any inconsistency in relation to the precise method by which this communication took place to be off any moment. The respondent concedes that the Tribunal was entitled to act upon “common sense” and “a reasonable appreciation of human experience”: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane 274 CLR 398 at [20]. In the Courts view, given the multiplicity of methods of electronic communication now available, any inability to remember over several years what particular app was used at a particular time (be it WhatsApp, Telegram Signal or some other method) is not a matter of inconsistency, but rather a reasonable incapacity of people aged in their late 50’s to recall. This is consistent with the Courts appreciation of human experience noting the constant and rapidly increasing availability of different methods to communicate via the internet.

33. Secondly, the Court does not consider any imprecision as to the frequency, over the period of time involved, as to contact with their daughter and others to be of particular moment. Indeed, if the applicant’s recollection was entirely consistent, this might point to collusion as to the evidence they were going to give.

34. At [73], the Tribunal takes issue with the claim that the applicant’s daughter held up scripture passages to the screen for her parents to see while giving then religious instruction, when such documents could have been sent via encrypted means over WhatsApp and telegram and then deleted later. The applicant’s advisor claimed the applicants were unfamiliar with the use of and the names of these applications. The Tribunal suggested that applicants could have been taught how to use the applications via Skype or even in person when visiting the Netherlands or Australia.

35. Again, such a finding makes an underlying assumption as to the computer literacy of the applicants and the witnesses’ knowledge of the security of sending documents via an encrypted means to Iran. The fact that the applicants did not follow a procedure that the Tribunal Member would have followed in their circumstances, does not of itself mean that the account of the applicants is implausible, such that their account is not credible. It may simply mean that the Tribunal Member has a much greater knowledge of the use of apps that offer encryption facilities to secure transmissions between users than the applicants and witnesses.

36. In the Court’s view, the inconsistencies relied upon by the Tribunal member to base a conclusion that adverse to the applicant’s credit and were fabricating their evidence does not have an evidentiary foundation.

37. Noting that the conclusion of the Tribunal member was based on intermingled credit findings, including particular 1(b)(ii), the Court is satisfied there is jurisdictional error. The Court is also satisfied that the error was material in that there is a reasonable possibility that the decision could have been different but for the error.

38. While not strictly necessary to do so the Court will make some brief comments on particulars (iii) and (iv).

39. The timing of the son’s disclosure of his parents’ conversion to the Jehovah’s Witness faith to his cousin, at a time when the applicants were in Australia and could claim protection, is a matter in the Court’s view, that was open to the Tribunal to form an adverse view upon as to the applicant’s credit. It was not an irrational finding.

40. Similarly, the finding at [77] as to the applicant’s sons Facebook page and the content of its private verse’s public pages, is a matter that the Tribunal was entitled to make an adverse credit finding. While another decision maker may have come to a different rational conclusion using another reasoning process, the Court is satisfied that the conclusion arrived at by the Tribunal was a conclusion open to the Tribunal, on the evidence before it, and for the reasons it gave.

    DISPOSITION

41. The Court grants the orders sought in the origination application and remits the matter back to the tribunal for further consideration. The Court will hear from the parties as to costs.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate: AD

Dated:       23 May 2025