FEDERAL COURT OF AUSTRALIA

ERO17 v Minister for Immigration and Border Protection [2019] FCA 596

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a citizen of Iraq of Shia Muslim faith, arrived in Australia by boat in 2013. Shortly after he arrived in Australia, he attended an entry interview (the entry interview) during which he responded to a question about why he left his country of nationality. The appellant subsequently applied for a temporary protection visa (protection visa). This application was refused by a delegate of the first respondent (the Minister). The delegate’s decision was referred to the Immigration Assessment Authority (the IAA) pursuant to Pt 7AA of the Migration Act 1958 (Cth). The IAA affirmed the decision of the delegate to refuse the application for a protection visa. In reaching this decision, the IAA relied on the fact that the appellant had not mentioned certain claims during the entry interview.

2    The appellant applied to the Federal Circuit Court of Australia for judicial review of the decision of the IAA. The primary judge held that no jurisdictional error was established and dismissed the application. The appellant appeals to this Court from the judgment of the Federal Circuit Court.

3    For the reasons set out below, the appeal is to be dismissed.

Background facts

4    On 26 January 2013, the appellant arrived in Australia as an unauthorised maritime arrival.

5    On 3 February 2013, the appellant attended the entry interview. The Appeal Book includes a copy of a form headed “Irregular Maritime Arrival – Entry Interview”. The details on the first page of the form indicate that the length of the entry interview was approximately 50 minutes. The entry interview was conducted at North West Point Immigration Detention Centre with the assistance of an interpreter. The form contains a series of questions followed in each case by a box or field which has been completed with the appellant’s responses. The responses are typed rather than hand-written. Relevantly, for present purposes, question 1 in Part C of the form asked: “Why did you leave your country of nationality (country of residence)?” In response, the following appears:

Looking for a better life. I’ve got nothing there in Iraq. My mother is a divorcee and I’m living with my uncle. Life is difficult there because people there request me to do wrong things in working and I cannot do it. Q. What kind of wrong things? A. For example, as a fireman I requested 50 extinguishers, they gave 10. That company I’m working for is very very bad, everybody is only looking after themselves.

6    On 11 July 2016, the appellant applied for a protection visa. The application attached a supporting statement dated 11 July 2016. On 20 February 2017, the appellant attended an interview in relation to his protection visa application. The appellant’s claims, as advanced in the statement dated 11 July 2016 and during the interview on 20 February 2017, can be summarised as follows:

(a)    The appellant was born in Iraq and is of the Shia Muslim faith. He worked for the Ministry of Oil from 2006 until 2012. He claimed that, in 2008, he was asked to sign invoices in which the prices had been inflated and told his managers he was not prepared to do this. The managers were associated with Shia political parties, including: the Al-Dawa Party headed by Mr Al-Maliki; the Highest Council headed by Mr Al-Hakim; and the Tha’r Allah headed by Mr Al-Mousawi. Initially, because he was from a big tribe and was receiving support from other big families, the appellant was not the subject of adverse attention.

(b)    The appellant claimed that he was later involved in three incidents:

(i)    In September 2011, he was shot at while driving his car (by men in another car). One bullet hit his right leg and the vehicle caught fire. He did not go to hospital because he feared the men would follow him there (the vehicle incident).

(ii)    In March or April 2012, he visited a petrol station (to approve an overhaul). He discovered that the amounts requested were inflated. Armed men shot at the office that the appellant was in. He was hit with a bullet in the back of his left leg (the petrol station incident).

(iii)    In July 2012, a car exploded at a house behind the French Consulate. Those seeking to harm the appellant knew he was living near the Consulate, but the explosion missed the appellant’s house. Following this, he received a message at the mosque from his manager warning him that this would be the last threat he would receive.

7    The appellant claimed that he went to see Mr Al-Hakim to tell him that the people who had attacked the appellant were associated with Mr Al-Hakim’s Party. Mr Al-Hakim told the appellant he was delusional and denied the appellant’s suggestion. The appellant was dismissed from his employment and decided to flee Iraq. The appellant claimed to fear harm from the militia groups and claimed that the government could not protect him.

8    On 31 March 2017, a delegate of the Minister refused the appellant’s application for a protection visa.

9    The delegate’s decision was referred to the IAA pursuant to Pt 7AA of the Migration Act.

10    On 19 June 2017, the IAA decided to affirm the decision of the delegate. The IAA’s review proceeded on the basis of the material provided by the Secretary of the then Department of Immigration and Border Protection.

The IAA’s reasons

11    The IAA accepted, on the basis of the appellant’s protection visa application and country information, that the appellant worked for the Ministry of Oil, that he observed corrupt practices and that he drew this to the attention of managers. It also accepted, on the basis of the appellant’s own evidence, that he did not suffer harm as a result of this until September 2011.

12    However, the IAA did not accept that the vehicle incident, or the petrol station incident, occurred and did not accept that the car bomb near the French Consulate was directed at the appellant’s house. In summary, the IAA found that:

(a)    the appellant’s responses were unconvincing and implausible;

(b)    the appellant failed to mention either the vehicle incident or the petrol station incident in the entry interview (referred to in the IAA’s reasons as the “arrival interview”). The entry interview was less than a year after the petrol station incident;

(c)    although the entry interview was brief, the appellant was advised about the need to give true answers, indicated that he understood the interpreter, was asked open-ended questions, and gave detailed evidence about other matters, such as how he travelled to Australia. It was considered implausible that he would not mention the two incidents, even in a passing way;

(d)    the appellant travelled to Jordan for a week shortly after the first incident; although not determinative, the fact that he returned to Iraq did not suggest that he feared for his life;

(e)    in the protection visa interview, the appellant made a new claim about the message given to him at the mosque after the bombing of the French Consulate; this claim was not mentioned in the entry interview or the protection visa application;

(f)    the claim that an attempt was made to bomb the appellant’s house was inconsistent with country information and the appellant’s own evidence; and

(g)    based on the evidence given at the protection visa interview, the appellant’s evidence about his meeting with Mr Al-Hakim was lacking in specificity and not accepted.

13    More generally, the IAA assessed the evidence before the delegate in respect of the appellant’s claimed fears, and concluded that it was not plausible that his former managers and the militia would seek to harm him four and a half years after he left.

The proceeding in the Federal Circuit Court

14    The appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision. The appellant was represented at the hearing before the primary judge. The appellant relied on only one ground at that hearing, which was as follows:

The Immigration Assessment Authority (“the IAA”), on a number of occasions in its decision, relied, in a manner adverse to the applicant, on his failure during the entry interview to make a claim concerning a specified matter. For reasons explained in MZZJO v Minister (2014) 239 FCR 436 at [55]-[57], this reasoning process involved a misunderstanding by the IAA of its task and jurisdictional error.

15    The primary judge’s core reasoning was set out at [42]-[49] of his reasons for judgment (the Reasons). The primary judge rejected the appellant’s ground of review, in summary, for the following reasons:

(a)    The primary judge accepted that a decision-maker may fall into error by relying only on a failure to mention details at an entry interview to support an adverse credibility finding.

(b)    However, the IAA relied on a good deal more than the appellant’s silence on a particular issue at the entry interview to support its findings. In particular:

(iv)    In respect of the vehicle incident and the petrol station incident, the IAA considered the appellant’s responses at the protection visa interview to be “implausible and unconvincing”.

(v)    In rejecting the appellant’s claims about the car bomb, the IAA relied on country information and the appellant’s own evidence.

(vi)    In respect of the threat at the mosque, the IAA considered the claim to be implausible.

(c)    The IAA’s reference to multiple reasons to support its rejection of the claims, indicated that it was aware of the need to exercise caution in relation to omissions by applicants of matters in the entry interview.

16    Accordingly, the primary judge dismissed the application for judicial review.

The appeal to this Court

17    The appellant, who is now unrepresented, appeals to this Court from the judgment of the Federal Circuit Court. The appellant relies on a single ground as set out in his notice of appeal:

The appellant contended in the Federal Circuit Court that the Immigration Assessment Authority (“the IAA”), in a finding in paragraphs 14 and 15 of its decision, by relaying on an omission on an entry interview although there was only a finding of implausibility which is a subjective finding. Such a finding is not as clear as a finding of “inconsistency” as suggested by MZZJO v Minister for Immigration (2014) 239 FCR 436; [2014] FCAFC 80.

(Errors in original.)

18    The appellant did not file an outline of submissions in advance of the hearing. At the hearing, he made brief oral submissions with the assistance of an interpreter. The Minister filed an outline of submissions and his counsel made brief oral submissions at the hearing.

Consideration

19    The appellant’s ground of appeal refers to the judgment of the Full Court of this Court in MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 (MZZJO). It appears (from the ground of review at first instance) that the appellant relies in particular on [55]-[57] of the Full Court’s judgment.

20    The passage from MZZJO relied on by the appellant is as follows:

55    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.

56    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.

57    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.

21    The following matters should be noted about MZZJO and the passage relied on by the appellant. First, MZZJO was principally a case about how decision-makers should deal with the examination of an applicant’s religious beliefs, rather than the narrower issue of how decision-makers should deal with omissions in an entry interview. The Court concluded, among other things, that the tribunal’s assessment that the appellant had “contrived” his claims relating to religion was “well open to it” (at [54]-[55]). That conclusion was based on the fact that the tribunal’s assessment was based, not only on its questioning of the appellant about his agnosticism, but also on the inconsistencies it identified between the appellant’s accounts of what happened to him, and his failure to mention certain matters at his entry interview (at [55]).

22    Secondly, the Full Court’s exhortation to decision-makers was to exercise caution in relation to omission of matters at an entry interview. This is not a prohibition on reliance on such an omission; it is guidance about the desirability of a cautious approach to fact-finding when relying on an omission at an entry interview.

23    Thirdly, the Full Court stated that had the tribunal in that case relied only on a failure to mention details at the entry interview, then the Court “may have been inclined” to see this as involving a misunderstanding of its task on review (at [57]). The Full Court identified this conclusion as a possibility, rather than definitively stating that it would have been reached.

24    Fourthly, the Full Court’s observations related to a specific situation, namely where the tribunal relied “only” on a failure to mention details at the entry interview.

25    Fifthly, the comments of the Full Court were obiter dicta: see EBC17 v Minister for Immigration and Border Protection [2018] FCA 1836 at [22].

26    For the following reasons, in the present case, the appellant has not established any error in the conclusion or reasons of the primary judge.

27    First, it is apparent that the IAA relied, not only on the entry interview, but also on the protection visa application, the protection visa interview and country information.

28    Secondly, the IAA at [15] of its statement of reasons evaluated both the content and circumstances of the entry interview, including the manner in which the appellant was asked questions and the nature of the appellant’s answers. Further, the IAA noted that it was “mindful that the [entry] interview is relatively brief”. These factors indicate that the IAA was aware of the need for caution in relying on an omission in an entry interview.

29    Thirdly, to the extent that the appellant’s appeal ground suggests that the effect of MZZJO is that the IAA’s conclusion would only be open to it if, in addition to the omission at the entry interview, there had been “inconsistencies” rather than mere “implausibilities” in the appellant’s claims, that suggestion is misplaced. The comments of the Full Court in MZZJO do refer to “inconsistencies” (at [55]), whereas the IAA’s reasons refer to “implausibilities” in the appellant’s claims (at [14], [15] and [19]). I do not, however, take the Full Court to be confining the matters that may be relied on in a particular case, or to be suggesting that it is necessary that there be “inconsistencies” in the evidence in addition to an omission at the entry interview.

30    In his oral submissions, the appellant submitted that the way in which the IAA had relied on the omissions from the entry interview was unfair, particularly as the IAA did not know the full circumstances in which that interview took place. However, for the reasons given above, no jurisdictional error is shown in the way that the IAA relied on the omissions in the entry interview in the circumstances of this case.

31    For these reasons, the appeal ground is not made out.

Conclusion

32    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also make an order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    1 May 2019