FEDERAL COURT OF AUSTRALIA

EBY17 v Minister for Immigration and Border Protection [2019] FCA 222

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time:

(a)    be granted for proposed ground of appeal 1; and

(b)    be refused for proposed grounds of appeal 2 and 3.

2.    Leave to rely upon proposed grounds of appeal 2 and 3 be refused in any event.

3.    The applicant file a notice of appeal confined to proposed ground of appeal 1 within 7 days.

4.    The appeal be dismissed.

5.    The applicant pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is principally an application for an extension of time in which to appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review, made under s 476 of the Migration Act 1958 (Cth), in respect of a decision of the Immigration Assessment Authority. The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, to refuse the grant of a Safe Haven Enterprise (subclass 790) visa, a type of protection visa. This is also an application for leave to rely upon grounds of appeal that were not advanced before the primary judge.

2    The applicant, a citizen of Iran, claimed to fear harm by reason of having worked for an opposition candidate in an election which took place in 2009, and for having participated in a related demonstration. As part of that claim, she said that she had been detained, raped and beaten for demonstrating against the government. She also made claims relating to persecution on account of her dress and appearance, especially as a woman, for imputed Christian beliefs and by reason of being a failed asylum seeker.

3    The substance of the appeal that the applicant seeks to bring in this Court concerns:

(1)    an asserted failure on the part of the primary judge to find that the Authority’s decision was affected by jurisdictional error by reason of being irrational, unreasonable, illogical or lacking an intelligible justification because of the way in which the claim of persecutory rape was rejected;

(2)    an asserted failure by the primary judge (not raised before his Honour) by not finding that the Authority had failed to consider a claim, integer of a claim, or the cumulative risk of harm faced by the applicant, by failing to consider her risk of harm, including sexual violence and detention, upon return to Iran once she was pulled up or taken by the Iranian militia known as the Basij, in light of her Westernised appearance and outlook, her gender, her status as a failed asylum seeker, her association with Christianity-orientated family members and her past protesting activities;

(3)    an asserted error on the part of the Authority by treating its power to get “new information” under s 473DC of the Migration Act as being constrained by the limits on considering such information in s 473DD – this too was not raised before the primary judge.

4    The Minister:

(1)    opposes the grant of an extension of time by reason of there being no satisfactory explanation for the delay in bringing an appeal to this Court and the lack of merit in any of the proposed grounds of appeal;

(2)    opposes leave being granted to run either of the grounds that were not advanced below because the applicant was legally represented, and again due to the lack of merit;

(3)    but does not assert any prejudice in either the grant of an extension of time, or in leave being granted.

History, explanation for delay and leave to appeal grounds not advanced below

5    The applicant arrived in Australia as an unauthorised maritime arrival on 31 October 2012. An entry interview took place on 19 November 2012. At that time, the applicant required the assistance of an interpreter.

6    On 10 September 2015 she applied for a protection visa, consequent upon the bar on making such an application being lifted. On 16 January 2017 she was interviewed in relation to that application. By that time, the applicant spoke English well and was able to dispense with an interpreter as she spoke better English than the interpreter did.

7    On 14 March 2017, the delegate refused to grant the protection visa. On 20 March 2017, the delegate’s decision was referred to the Authority for automatic, but limited, merits review. On 8 August 2017, the Authority affirmed the delegate’s decision, declining to obtain any further information, but taking into account written submissions from the applicant.

8    The applicant sought judicial review of the Authority’s decision in the Federal Circuit Court of Australia. An amended application was heard by the primary judge on 28 February 2018. The applicant was represented by counsel. Further written submissions were received after the hearing, by leave. His Honour dismissed the application on 17 April 2018, giving detailed reasons.

9    The applicant commenced this proceeding on 5 June 2018, 28 days out of time. She ultimately only pursues one of eight grounds advanced before the primary judge, but, as noted above, seeks leave to rely upon two grounds that were not before his Honour. In an affidavit accompanying the application for an extension of time, the applicant’s then solicitor explained that the reason for delay was that he thought the time period to appeal was 28 days and not 21 days. The applicant subsequently changed solicitors, with a notice of acting filed on 14 November 2018. A scheduled hearing on 20 November 2018 was vacated by consent, with the applicant agreeing to an order for costs in favour of the Minister.

10    A further explanation for delay is contained in the affidavit of the applicant’s current instructing solicitor, Mr David Prince, filed on 20 November 2018. Mr Prince deposes to the following facts that are not disputed by the Minister, although they are said to be an inadequate explanation for the delay:

(1)    the applicant’s former lawyers did not inform her that her judicial review application had been dismissed by the Federal Circuit Court until around 10 days after the fact, on around 27 April 2018;

(2)    the applicant promptly provided oral instructions, within a few days of 27 April 2018, to her then lawyers to appeal the judgment;

(3)    her former lawyers failed to follow her instructions to file an appeal until after the deadline for doing so had passed;

(4)    on 16 August 2018, the applicant told her prior solicitors she did not want them to continue acting for her, whereupon she then retained new lawyers; and

(5)    despite the withdrawal of her instructions, prior counsel filed submissions purportedly on the applicant’s behalf, on 7 November 2018.

11    The applicant therefore contends that the delay is not her fault and that it is in the interests of justice to grant both an extension of time and leave to appeal. She asserts that the grounds of appeal that she wishes to pursue have reasonable prospects of success.

12    The Minister submits that the applicant’s claim that her former solicitor did not follow her instructions to file an appeal within time is not consistent with that solicitor’s claim that he made a mistake rather than simply refusing to follow instructions, and that the explanation for the delay is incomplete and unsatisfactory.

13    In relation to leave to advance grounds of appeal on points that were not taken below, the applicant points to a new legal team and relies upon the following statement of principle in Water Board v Moustakas (1988) 180 CLR 491 at 497 (omitting the footnoted authority cited):

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

14    The applicant submits that the proposed second and third grounds raise points of law that rely upon established facts that could not have been met by calling evidence below, and that it is expedient and in the interests of justice to grant leave. This submission does not, however, address the principle that, generally speaking, the appellant jurisdiction of this Court should not be exercised to conduct first instance judicial review.

15    While the explanation for the delay in commencing this appeal proceeding is not entirely satisfactory, I am prepared to give the applicant the benefit of the doubt in that regard. I do not consider that the extent of the delay, with the explanation provided should, of itself, stand in the way of the grant of an extension of time to bring an appeal. However, that is only justified if there is sufficient merit in the proposed grounds of appeal. It will only be appropriate to reach the point of considering whether it is expedient in the interests of justice to grant leave to advance the second and third proposed grounds of appeal on topics that were not advanced below, despite being legally represented by solicitor and counsel, if they have real merit.

16    Having heard both applications and full argument on the proposed grounds, it is necessary to consider the merits of each proposed ground of appeal, before finally determining the question of whether an extension of time should be granted, and whether leave to appeal should be granted for the additional proposed grounds of appeal.

Proposed ground 1 – asserted failure to find jurisdictional error in the Authority rejecting the rape claim

17    The Authority’s rejection of the applicant’s claim to have been raped in part turned upon what she had, and had not, said at her initial entry interview three weeks after her arrival in Australia, as compared to more detailed claims made as part of her protection visa application and subsequent interview with the delegate.

18    The applicant relies upon the cautionary, albeit obiter, observation about the use made of entry interviews in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [55]-[57]:

We agree with the Federal Circuit Court that the Tribunal’s conclusions were “well open to it” in the sense of being findings about the credibility of the account given by the appellant. They were based only in part on the Tribunal’s questioning of the appellant about agnosticism. They were also based on inconsistencies the Tribunal identified between the appellant’s various accounts of what had happened to him, and about his failure to mention certain matters at his entry interview.

On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.

19    Two issues arise for consideration which go to the question of whether there was a jurisdictional error that the primary judge failed to detect.

20    The first issue is whether the Authority erred in:

(1)    finding that the applicant was in fact given a warning at the time of the entry interview (entry interview warning) to the effect of the information on the first page of the “Irregular Maritime Arrival Entry Interview” form:

You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

(2)    and thereby erred, in a jurisdictional way, in the approach taken to credit findings based on information that, it is not disputed, was not provided by the applicant at the time of the entry interview, and only provided by her later as part of the later protection visa application process.

21    The second issue is whether the Authority made such a qualitative error in its reliance on omissions in what was said by the applicant in her entry interview, when compared to later claims made at the delegate stage, so as to constitute a failure in the performance of the jurisdictional task amounting to a jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780, discussed and applied by Rangiah J in DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [60]-[77].

22    A related point in relation to the first issue is whether, if the entry interview warning was not conveyed, it could have made any difference to the second issue, in the sense of influencing the answers given to the questions that were asked at the entry interview in a way that could possibly have affected the Authority’s reasoning and conclusions as to the credibility of the applicant’s claim to have been raped during a two day detention, in circumstances in which no such claim of detention was made.

The “Irregular Maritime Arrival Entry Interview” form and the recording of the interview

23    It is apparent that the entry interview was conducted by reference to an “Irregular Maritime Arrival Entry Interview” form that was in evidence, with questions and answers being sound recorded. A transcript of the interview was admitted into evidence in this Court on the basis that the recording upon which it is based was listened to by the Authority, even though the transcript was not before either the Authority or the primary judge. I also received a copy of the sound recording from which the transcript was prepared.

24    There are seven paragraphs of text in the form under the heading “Important Information”, which appears half way down the first page of the form. The key second paragraph, reproduced at [20] above, contains the entry interview warning, relevantly informing an interviewee to whom it is addressed that, if the information given at any future interview is different from what is said at the entry interview, this could raise doubts about the reliability of what has been said (presumably on either occasion). That is immediately followed, on the top of the second page, which is otherwise mostly blank, by the following printed questions:

(1)    “Do you understand what I have said?”, with a tick in a box marked “Yes”; and

(2)    “Do you understand the interpreter?”, with a tick in a box marked “Yes”.

25    The first of these questions is not in the entry interview transcript or the sound recording upon which that transcript is based. The interviewer asks the second question by saying “Do you understand interpreter?” (sic), following which there is some laughter when the interviewer asks the interpreter whether the applicant speaks Chinese, a clear error on the interviewer’s part as to the foreign language he was hearing.

26    I have listened to portions of the sound recording. As a result it is clear that:

(1)    some information in the form had already been typed into the form prior to the recording of the interview and is being read out, such as identification numbers and the applicant’s name;

(2)    some information is being shown to the applicant, read by the interpreter, and confirmed as being correct, such as “So this is the address, yeah?”

(3)    the sound of a keyboard can be heard at the time that certain answers are given, apparently recording information as it is provided; and

(4)    not everything on the form is read out.

27    The transcript of the sound recording does not reflect any of the seven paragraphs of text in the form under the heading “Important Information”, including in particular the entry interview warning, being read out. Despite that, the following was said on the topic of the entry interview warning by the delegate and by the Authority:

(1)    The delegate (at pp 4-5) referred to her apparent understanding as to the usual practice at entry interviews:

I acknowledge that entry interviews are not conducted for the sole purpose of assessing protection visa applications. However, applicants are advised during an entry interview, that the interview is their opportunity to provide any reasons why they should not be removed from Australia. They are instructed to give true and correct answers to the questions that are asked. They are instructed that if the information they give at any future interviews is different from what is stated during the entry interview, it could raise doubts about the reliability of what they say.

(2)    The Authority, at [13], referred to listening to the recording of the entry interview and to aspects of what was said by the interviewer and by the applicant, and then described the following (at [14]) apparently as to what was said:

At the beginning of the arrival interview the applicant was told the interview was her opportunity to provide any reasons why she should not be removed from Australia and that she was expected to give true and correct answers to the questions asked. She was also told that if the information she gave at any future interview was different from what she told now, this would raise doubts about the reliability of what she had said. She was advised that the Department was careful to protect the privacy of all information given by her during the interview and that it would not be made available to the authorities in her country of habitual residence (Iran). She was provided with an interpreter in the Persian language. Asked if she understood what had been said to her and whether she understood the interpreter, the applicant said ‘yes.’

28    The applicant urges the Court to make a positive finding that the entry interview warning was not given to the applicant. There is an issue to be resolved in making that finding. The Authority’s reasons state not just that the entry interview warning was part of normal practice, but that the substance of that warning was in fact given. On the other hand, there is no evidence nor any foundation for any suggestion that there was some other recording that has not come to light. There is no apparent reason why reading out the seven paragraphs would have been recorded separately from the rest of the interview, especially when portions before and after the seven paragraphs are read and recorded.

29    I am therefore driven to the conclusion, on the balance of probabilities, that the Authority, when it refers to what the applicant was told at the beginning of the interview, relevantly to the effect of the entry interview warning, is not in fact describing what was heard on the recording. Rather, it is paraphrasing the key parts of the seven paragraphs as being what is usually conveyed as a matter of practice. That is, in saying that “the applicant was told”, the Authority was, in effect, recording the substance of what it understood she would have been told, perhaps prior to the formal interview beginning. However, there is no evidence that this in fact took place; and I infer that it was never in fact said. The delegate’s assumption that this had taken place was therefore similarly misplaced.

30    The first aspect of the first issue must therefore be resolved in the applicant’s favour. The question of whether this error or misunderstanding tainted the credit findings made is a fact-specific inquiry, to be conducted by reference to the content of the interview, and the findings made about it.

The relevant passages in the form and in the transcript of the recording of the entry interview

31    The form:

(1)    at Part A, records formal interview details, including the seven printed paragraphs of “Important Information”;

(2)    at Part B, records biographical details, including travel movements;

(3)    at Part C, records the reasons for leaving the country of nationality, political involvement, social and religious groups, service with, or adverse contact with, police, security or intelligence organisations, local group activities (in the sense of armed groups, political groups, or religious groups operating in the area where an interviewee lived), armed conflict, military service, and concerns about anyone else on the boat to Australia, the arrangements that had been made to come to Australia, country of origin and passport details, travel route details, the reason to choose to come to Australia, and the reasons not to return to the country of nationality.

32    The relevant information recorded on the form for present purposes was as follows:

(1)    As to what had happened in the past:

I had problems in Iran with police, they invaded our house. Also with Islamic Guidance Patrol, they raid our house if we had parties taking everyone with them. I was detained for one night because of hijab, they picked on me.

I participated in some rallies and demonstration because there were fraud in the elections of 2009.

Last summer August 2012, I was detained for one night because of hijab, they picked on me.

We are stressed going out of the house thinking the police or Islamic guidance Patrol might arrest us for no reason.

Basijis – they hit people with arms, teargas or batons.

(2)    In relation to what she thought would happen to her if she returned to Iran:

My condition will get worse – I was scared of the Police and scared to get out of the house so it will be worse.

33    The corresponding portions of the entry interview transcript demonstrate that the summary of the answers recorded in the form reproduced in the preceding paragraph was, in substance, accurate, but also record the questions that gave rise to the provision of that information. Those portions are reproduced immediately below. It should be noted that obvious transcription errors have been corrected, one in particular without notation being the correction of the transcription “Islamic Gardens Patel” with the words actually uttered, being “Islamic Guidance Patrol”; and that “INT” means the words in English were spoken by an interpreter.

34    The relevant portions of the entry interview transcript are as follows:

Q156    When I go to part C in here I'd like to ask you the reason why you left Iran, only the reason minus your story.

A    (INT) Because of the problems that I had in Iran I was scared to stay there. I didn't have safety back in Iran.

Q157    Just short sentence. You said problems in Iran. What's general problem in Iran that you had?

A    (INT) I had a lot of problem with police and I was very scared of them.

Q158    What's the problem with the police?

A    (INT) They invaded our house. I had problem with Islamic Guidance Patrol. If they had party or gathering.

Q159    With Islamic?

A    (INT) Guidance Patrol.

Q160    Guidance Patrol.

A    (INT) If you have party or gatherings they would raid our house and take everyone with them. And I was detained for one night because of my hijab.

Q161    Of not wearing hijab?

A    (INT) Not having a complete hijab. They were picking on me. I had hijab.

Q162    You had hijab?

A     (INT) It's impossible not having hijab in Iran.

…

Q169    Have you or any member of your family been associated or involved with any political group or organisation?

A    No.

Q170    Were you or any member of your family been involved in any activity or protest against the government?

A    (INT) After the election I am participated in some of the rallies and demonstrations because there was fraud in the election.

Q171    What year would it be?

A    (INT) 2009 election.

…

Q174    Were you ever arrested or retained by the police or security organisation?

A    (INT) Once.

Q175    That was that night when they took you because of your hijab?

A    (INT) Yes.

Q176    Do you remember the date when that was done?

A    (INT) Last summer.

Q177    Last summer. What month?

A    (INT) July.

Q178    This year or last year?

A    This year.

Q179    This year.

A    (INT) August.

Q180    August. Did the police and security or intelligence organisation affected your daily life in Iran?

A    (INT) Yes.

Q181    Yes. How?

A    (INT) We had stress going out of the house, always thinking they might arrest us for no reason.

Q182    Who would arrest you?

A    (INT) Police and Islamic Guidance Patrol.

Q183    Were there any armed groups, political groups or religious groups operating in the area where you live?

A    (INT) What do you mean?

Q184    Groups like other than government service or government police, armed groups like you have Taliban in Afghanistan?

A    No.

Q185    No. So it's always only the police and the Islamic?

A    (INT) And Baseegs [Basij].

q186    Baseegs. [Basij] Is Baseegs [Basij] part of the police force?

INTERPRETER

It's a different - - -

OFFICER VARGAS

Q187    It's a different. What does Baseegs [Basij] do?

A    (INT) Hitting people.

Q188    They have arms?

A    (INT) Yes, they have batons and they have got weapons and tear gas.

…

Q274    What do you think will happen to you if you go back to Iran?

A    (INT) My condition will get worse than what it was before.

Q275    Okay. And what is your condition?

A    (INT) I was scared of them and I was scared to get out of the house so it was – it's going to be worse.

Q276    You said you are afraid of them, who is this them?

A    (INT) From police.

Before the delegate

35    The applicant made no reference in the entry interview to any other detention incident over two days, associated with political activities, nor to being raped. A claim to that effect was first made in a document accompanying her protection visa application and was maintained at the protection visa interview. The substance of the claim was that in the month after a political candidate she had worked for was defeated in the 2009 election, she participated in a number of protests against the election results. Up to that point, this was contrary to the answer given to Q169 at the entry interview, but aligned to the answers given to Q170 and Q171, reproduced above. However, as summarised by the delegate (at p 2), the following additional claims were made in the protection visa application accompanying document:

The applicant claims that on 15 June 2009 while protesting, she was attacked by members of the Basij. She was arrested, detained for two nights, raped and beaten.

The applicant was released by the Basij and she immediately sought medical treatment for heavy bleeding. The applicant provided a medical certificate from her doctor in Iran stating that she presented with heavy bleeding and a claim of being raped.

The applicant claims that following her political activism, she was harassed in the street by authorities for minor offences such as not wearing hijab correctly, wearing make-up and nail polish.

36    The delegate went on to consider the additional claims (at pp 3-5), including the difference in the claims made. She concluded that the additional claims were not credible, and explained why that conclusion had been reached. In particular, the delegate placed significant weight on the applicant’s failure to mention in her entry interview that she feared harm in Iran for political activism, or that she had been arrested for this reason. The delegate acknowledged that victims of sexual assault may delay disclosure, yet was concerned that the applicant had been inconsistent regarding her claims of protesting against the government, arrest and detention. Similarly, the delegate doubted the applicant’s claim that she was at risk of harm due to a perception that she is a Christian, given there was no mention in the entry interview that she was arrested and detained overnight after being accused of converting to Christianity.

37    The delegate then considered the applicant’s explanations for these discrepancies, including that she had been told to just “give the reason I came to Australia minus the story”, and that she was afraid if she provided her claims in full, then the reasons she was seeking protection might be passed on to the Iranian authorities. In the opinion of the delegate, the credibility of these explanations was outweighed by other factors – the applicant did not mention that she was arrested or detained when she was specifically asked about protests against the Iranian government; and, when asked if she had ever been arrested or detained in Iran, she replied that she had been detained “once”. An additional concern of the delegate’s was that the applicant had renewed her Iranian passport since 2009 and travelled in and out of the country, suggesting she had no profile with the Iranian authorities.

38    It was acknowledged by the delegate that the instruction to give the reasons for protection “minus her story” could create confusion about what information was required, and that entry interviews are not conducted for the sole purpose of assessing protection visa applications. However, the delegate continued, applicants are advised that the interview is their opportunity to provide reasons why they should not be removed from Australia, to give true and correct answers, and that different information given in subsequent interviews could raise doubts about reliability. It did not make logical sense to the delegate that the applicant would fail to disclose her primary reason for seeking protection at such an interview. The delegate considered the three week period in between the applicant’s arrival in Australia and her entry interview provided the applicant sufficient time to be able to articulate her claims.

39    The delegate concluded that she did not accept the additional claims and would therefore not consider them further.

Before the Authority

40    The Authority’s reasons also dealt with the difference in the applicant’s claims made at the entry interview and in support of the protection visa application in some detail. It recounted the applicant’s claim that on 15 June 2009, she was marching to protest against the corrupt election result when the Basij attacked her and drove her to a house where she was imprisoned for two nights, mentally tortured, and raped. The Authority then summarised the contents of four medical letters, dated between June 2009 and August 2015, provided by the applicant in support of her protection visa application.

41    The Authority went on to consider the applicant’s answers given at her arrival interview. It noted that the applicant made no mention of being detained during the protest, and that while she did mention that she participated in rallies and demonstrations regarding the 2009 election, her only stated detention was for one night in August 2012 because of her hijab. The Authority also recounted the applicant’s answers at the arrival interview regarding whether the police or security or intelligence organisations impacted her day to day life; noting that she stated that her family was stressed that the Islamic Guidance Patrol or police might arrest them for no reason, and that the Basij hit people with arms, teargas and batons.

42    Doubts were raised by the Authority over various aspects of the applicant’s reasons for not mentioning the 2009 arrest, detention and assault at the arrival interview. The Authority was not persuaded by the applicant’s explanation that she “was terrified at the time and embarrassed to talk about being raped and tortured”, having listened to the recording and noting its “relaxed” mood. While the Authority noted the sensitive nature of the alleged circumstances, it was not satisfied that this accounted for there being no mention of detention during the political protest. The Authority concluded that while it accepted she participated in protests following the election of 2009, referring to country information of large scale protests at the time, it was not satisfied that the applicant was detained, mentally tortured and raped as claimed. The Authority noted that the applicant could not give details of the house where she was detained, nor give an estimate of the number of people held there. It gave no weight to the medical certificates provided by doctors in Iran because, although they corroborated the applicant’s claims on their face, they “are difficult to verify and lack substantive detail”. A letter from a psychologist in Australia was said to have made no reference to detention or rape.

43    The Authority did not accept that the applicant worked at an electoral office or that her house was raided in November 2009. It determined that the Iranian authorities would have no interest in the applicant, based on general country information, the applicant’s limited profile in the 2009 protests, her subsequent lack of political activity, and her travel in and out of Iran.

Before the primary judge

44    The primary judge summarised the Authority’s consideration of the applicant’s claims of detention and sexual assault in some detail (at [36]-[55]). This ground of appeal was ground 3 before the primary judge. His Honour concluded (at [90]-[92]):

Grounds 3 erroneously asserts the Authority made the adverse finding on the basis of the entry interview. The Authority’s adverse reasons in relation to the applicant not being accepted about having been detained, raped and beaten are adverse findings were not based on trivial or insignificant matters.

Further, the Authority expressly took into account the applicant’s explanation and the “minus the story” comment. No extreme illogicality is made out in the adverse findings by the Authority. Those adverse findings were open for the reasons summarised above by the Authority.

The assertion of no evidentiary basis is not correct given the Authority’s reference to the reasons, and it was a matter for the Authority to determine whether to accept the applicant’s credit. Further, it cannot be said that the reasoning of the Authority was not open or was legally illogical or unreasonable. Ground 3 fails to make out any jurisdictional error.

The applicant’s argument

45    The applicant submits that the primary judge erred by not finding that the Authority’s decision was irrational, unreasonable, illogical or lacked an intelligible justification because of the way in which her claim of persecutory rape was rejected in the circumstances of the case before it. She claimed to have been raped following her arrest and detention by the Basj at a political protest, with the Authority accepting that she had participated in a political protest, but rejecting the rape claims. The applicant submits that the reasons for that rejection are to be found (and implicitly confined) to [20]-[22] as follows:

(1)    The Authority rejected her explanation for not mentioning the rape during the entry interview (that she was terrified and embarrassed to talk about being raped and tortured) on the basis that it had had listened to the entry interview tape and was not persuaded she was terrified at the time of the entry interview which the IAA considered was “relatively relaxed despite its seriousness”.

(2)    Although the Authority accepted that applicants who have suffered sexual violence may find it extremely difficult to discuss those matters, it found that this did not account for her not referring to the 2009 detention in her entry interview.

(3)    The Authority found that the description of the house where she was raped and the circumstances were not sufficiently detailed.

(4)    The Authority referred to the difficulty of verifying the medical evidence corroborating the rape and the lack of substantive detail in the medical evidence, and found that given its significant concerns about her evidence of being raped, it gave the medical evidence no weight.

46    The applicant submits that in making those findings, the Authority did not deal with her important explanation for not disclosing the rape. The applicant submits that the closest the Authority came to considering her explanation was at the end of [20], where it merely rehearsed her explanation by stating:

The interviewing officer had told her he did not need the “full story” only “the reasons”. The delegate put her concerns about the inconsistencies between the “arrival entry” interview and her statement of claims and the applicant said she was in a detention centre at the time she was afraid she would be sent back to Iran or PNG and she was only 21 at the time.

47    The applicant submits that in fact page 2 of her written submission to the Authority of 27 March 2017 was more detailed and had significant elements that were overlooked by the Authority:

It would appear that the credibility of my claims were dismissed because my claims were different at my Entry Interview to what I stated in my SHEV application. I would like to point out here that the story is not different it is just briefer than provided in my SHEV interview. There is a very simple explanation for the difference and that is the fact that the entry interview lasted for exactly 62 minutes and the Immigration Official who initially interviewed me on Christmas island, when asking me for my reasons for coming to Australia stated, “Only the reasons minus the story”. In fact, we spent only 10 minutes talking about why I had to leave Iran, including time spent on interpreting and recording my responses.

…

One question that [the delegate] points out was regarding whether I had been arrested. At the initial interview, I only mentioned one time (for not wearing a hijab correctly) and not the fact I had been arrested on other occasions, which is a large part of my claim, where I was beaten, tortured and raped by my capturer for opposition to the government. The main reason why I did not mention this was that it is so painful and shameful for me to relive that time that I never want to talk about it unless I have to.

48    The applicant relies upon the erroneous assumption made by the delegate that she had been given the entry interview warning and submits that the Authority’s failure to correct this misunderstanding by the delegate should lead to the inference that the Authority was under the same misapprehension. I have already accepted that this conclusion should be drawn. But that is not enough. It must be shown to at least have had the realistic potential or possibility to have fatally infected the Authority’s reasoning process; the applicant does not have to go so far as to show that this in fact happened, only reasonably that it could have happened.

49    The applicant submits that the Authority’s finding that, from listening to the entry interview recording, it was not persuaded that she was terrified side-stepped her explanation that the rape and torture was so painful and shameful that she never wanted to talk about it unless she had to. Thus, the applicant submits that the rejection of her rape claims because she did not raise them in her entry interview was beyond jurisdiction. That is said to be because the Authority was only given jurisdiction to review the decision within the bounds of rationality and reasonableness, and it was unreasonable or irrational to reject the applicant’s claim to have been detained, raped and tortured in 2009 because she had not raised it in her entry interview without considering her explanation for not having so raised it. The applicant submits that the Authority ignored significant aspects of her explanation for not raising the rape claim at the entry interview, including that “the thrust and bulk of the interview was not about her claims but about her identity and journey; that the interview was short; that she was told to give her reason for coming, minus her story; and that she did not want to speak about the rape unless she had to”.

The Minister’s argument

50    The Minister submits that to demonstrate relevant legal illogicality or irrationality in the Authority’s conclusion, “extreme” illogicality must be shown, citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 (at [59]-[61], noting that the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] stated that even emphatic disagreement with an administrative decision-maker’s reasoning would not be sufficient to make out illogicality; and at [131] said that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion. Their Honours in CQG15 also quoted the summary of principles gathered by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; 69 AAR 210 as follows (at [52] and [54]-[56]):

As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

…

… The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]-[62].

Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].

An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.

51    The Minister submits that applying the above principles, the Authority was entitled:

(1)    to expect that the applicant would mention the detention upon which she later relied in her entry interview if that were true, even if she did not mention that she had been raped; and

(2)    to form its own view as to whether the applicant was terrified at the entry interview as she claimed, based on listening to a recording of that interview.

52    The Minister submits that, contrary to the applicant’s submissions, the Authority did not “ignore” her explanation that talking about the alleged rape was painful and shameful, because that was specifically referred to in its reasons at [20]. The Authority expressly accepted that applicants who have suffered sexual violence may find that extremely difficult to discuss, but found that this did not explain why there was no mention of the alleged detention in the applicant’s entry interview. The Minister submits that this reasoning is “perfectly rational” and does not “side step” the applicant’s explanation as claimed in her submissions but, rather, addresses it. The Minister submits that [20] of the Authority’s reasons makes it clear that it was not persuaded that the shortness of the entry interview or what was said during it explained the applicant’s failure to mention the detention at which the rape was later said to have occurred.

53    The Minister submits that, contrary to the applicant’s submissions, the Authority did not “ignore” any of the other matters mentioned in the applicant’s submissions to it, those submissions having been expressly referred to by the Authority in its reasons at [4], and did not have to be reproduced or referred to in full.

54    The Minister submits that no legal illogicality or irrationality is revealed by the Authority’s rejection of the applicant’s claim to have been detained and raped, and that this proposed ground of appeal does not rise any higher than impermissible merits review.

Consideration

55    The problem for the applicant is that her arguments as to irrationality or illogicality rise no higher than one possible way in which to read the Authority’s reasons in not accepting her claim to have been raped. I do not consider that is even the better way to read those reasons. Nor do I accept that the error as to the entry interview warning having been given could have made any material difference, because the issue turns not on what she might have said of her own volition if the warning had been given, but rather the answers given to direct questions as to why she had left Iran. The absence of the entry interview warning could not be shown to have any bearing on what the applicant said and did not say on the reasons she gave for leaving Iran.

56    The questions asked in the entry interview were, at the relevant points, open-ended and non-leading; but their import was clear in seeking to have her describe the reasons why she had left Iran. The applicant responded to those questions. She volunteered that she had only been detained overnight in 2009 by reason of not wearing a hijab, and had been released the next day, a detention that was not linked to any protest. She made reference to participating in rallies and demonstrations because of fraud in the 2009 election. She referred to a fear of being arrested for no reason. But she made no reference to the detention event taking place over two days, or being linked to a political protest. Yet it was this different and longer detention event, arising in the context of a political protest, where she later said that she had been severely mistreated and raped. As will be seen, it was the lack of reference to this incidence of detention that the Authority relied upon, rather than the lack of reference to specific claims of mistreatment and rape, in not accepting these later, much more serious, claims.

57    Much later, the original claim of detention was apparently abandoned and replaced, as part of the protection visa application, with a claim of a different incident of detention over two days, during which she said she was taken to a house, mentally tortured and raped. The Authority accepted that the applicant might, in common with anyone who was traumatised by sexual assault, not want to say anything about that, but did not accept that this accounted for no mention, at the time of the entry interview, of the fact of this detention incident when these events were said to have taken place. Part of the claim made for why she did not mention even detention was that she was terrified at the time of the entry interview. The Authority was entitled to listen to that interview and form a view as to whether that state of mind was present – concluding that it was not.

58    The reasons for not accepting the claim of rape are not as narrow or poorly reasoned as the applicant suggests. It is possible a different administrative decision-maker might have reached a different conclusion. Further, the conclusion that was reached may be seen to be challenging and even troubling given the nature of the claims made. However, I am unable to see that this conclusion was other than by a conventional form of reasoning that was within the province of the Authority’s proper exercise of its jurisdiction. I can see nothing that is legally unreasonable or illogical in the reasoning that was adopted, taken in its entire context and detail, let alone at the extremity that is necessary to amount to jurisdictional error as detailed in the authority relied upon by the Minister.

59    Notwithstanding the conclusion I have reached, this ground of appeal was one that required serious consideration, being skilfully argued by the parties. It was in substance run below, even if additional nuances were relied upon in this appeal. The delay in bringing an appeal on the same issue was not excessive and was sufficiently explained in this case. In all the circumstances, the extension of time to file a notice of appeal should be granted. However, that ground of appeal must be dismissed.

Proposed ground 2 – asserted failure to find that the Authority had failed to consider a claim, integer of a claim, or the cumulative risk of harm faced by the applicant

60    This proposed ground of appeal asserts error on the part of the primary judge, despite this point not being taken before his Honour. It asserts that while individual claims were dealt with, their cumulative effect was not addressed. The applicant submits that while the separate claims of imputation of having converted to Christianity by reason of her brother having married a Christian, her political opinion, and risk of harm arising from her dress and westernised appearance may not individually have given rise to the requisite well-founded fear of harm, the collective effect had to be considered to see if, in effect, the whole was greater than the sum of the parts.

61    Additionally, the applicant asserts that a claimed fear of harm by way of sexual assault was not addressed. That additional point may be disposed of swiftly. That is because the claim of a fear of future harm was said to have arisen entirely from the past rape incident, which was not accepted by the Authority to have taken place. There was no obligation to consider this wholly derivative claim once the wellspring claim was not accepted. Given the apparent confidence in rejecting the claim of rape, there was no obligation upon the Authority to consider whether its finding in that regard might be wrong, and therefore consider the asserted fear of the same thing happening again in the future: cf Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.

62    Returning to the primary submission, the applicant contends that while the Authority stated (at [48]) that it had considered her claims individually and in their totality, it should not be accepted that this is what in fact took place. There are cases in which an assertion of that kind amounts to no more than lip-service. Such incantations, if shown to be hollow, may not suffice to constitute performing the jurisdictional task. But that is not what happened in this case. Each claim was considered by the Authority in considerable detail and findings made individually about each. The Authority then revisited each of the historical claims and asserted fears arising under the heading of “well-founded fear of persecution” (at [41]-[45]), before addressing the returned asylum seeker claim (at [46]-[47]). In that way, the collective effect of the claims that were accepted may be seen to have been considered. The Authority at [48] was not merely uttering an incantation, but describing the process that had been undertaken:

I have had regard to all the evidence before me and I have considered the applicant’s claims individually and in their totality, her participation in a political protest, her possible overnight detention for wearing incorrect hijab, being a non-practising Muslim with a Christian sister-in-law, and being in a relationship with an Australian citizen. I am not satisfied that the combination of these factors would put her at risk. I find that the applicant does not have a well-founded fear of persecution on any of these bases.

63    This proposed ground is without sufficient merit to warrant the granting of an extension of time to appeal upon that basis, or leave to advance it for the first time on appeal.

Proposed ground 3 – asserted error in treating the s 474DC power to get “new information” as being constrained by the s 473DD limits on considering such information

64    This ground relies upon the astute observation by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [62] to the effect that it is a jurisdictional error for the Authority to approach the task of deciding whether to get “new information” under s 473DC of the Migration Act upon the basis that it was required to be satisfied that there were “exceptional circumstances” as required before such new information, once obtained, may be considered. As his Honour pointed out, “[w]hether ‘exceptional circumstances’ exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.” The live question is whether or not the Authority in this case made such an error.

65    The Authority considered a request by the applicant to be interviewed again, and rejected it by the following reasoning (at [6]):

The applicant has also requested an oral or written interview. I have listened to the recording of the protection visa (PV) interview. I am satisfied the applicant was clearly able to present her claims to the delegate and respond to questions for information. The applicant’s representative stated at the end of the interview that the applicant did have concerns about what the interpreter was saying but was happy to continue without the assistance of the interpreter. Under s.473DB of the Act, the IAA must, subject to Part 7AA, review the decision by considering the material referred to it by the Department without, inter alia, interviewing the applicant. While the IAA may get new information, it can only consider it in very limited circumstances. The applicant had an opportunity to put forward her case before the delegate and prior to the decision being made. She was also represented by a migration agent who provided submission. I do not consider that an interview, either oral or written, is required in this case.

66    The applicant submits that by the use of the word “required” in the last sentence in the passage reproduced above, the Authority was committing the error identified by Thawley J in EMJ17. I do not accept that is so. The Authority was doing no more that deciding that it did not consider that obtaining new information from the applicant was required in all the circumstances that are identified earlier in the paragraph. Without even resort to a beneficial reading, the Authority was not treating the power to obtain information as being fettered by the limited circumstances in which such information may be considered once obtained.

67    This proposed ground is also without sufficient merit to warrant the granting of an extension of time to appeal upon that basis, or leave to advance it for the first time on appeal.

Conclusion

68    The single ground advanced below that was sought to be pursued further on appeal has been permitted to be brought out of time, but must fail. The remaining proposed grounds of appeal, advanced for the first time, do not pass the threshold of sufficient merit for either an extension of time to appeal upon either basis, or leave to appeal in any event. Both applications must therefore be refused in respect of proposed grounds of appeal 2 and 3.

69    There is no reason why the applicant should not pay the Minister’s costs.

Associate:

Dated:    28 February 2019