Federal Court of Australia

EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 24 May 2021 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent made on 17 June 2019 be set aside;

(b)    the matter be remitted to the second respondent, differently constituted, for redetermination according to law; and

(c)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court published as EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1105. The judgment dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority’s decision affirmed the decision of a delegate of the Minister for Home Affairs refusing to grant the appellant a temporary protection visa (TPV).

Background

2    The appellant is a citizen of Iran. He claims that during a party for his son’s first birthday in September 2011, his father’s house where he and his family resided was raided by the Sepah Pasdaran (i.e., the Islamic Revolutionary Guard Corps) at which time he, in defence of his father, pushed a Sepah officer. He says that he was then arrested, held for 45 days and tortured. On his first court date, he says that an officer whom his older brother bribed helped him escape, after which he remained in Iran for approximately two years before departing by air on a friend’s passport from Tehran airport through Istanbul and Kuala Lumpur to Jakarta.

3    Departing from Indonesia, the appellant arrived in Australia by boat in July 2013. An arrival interview was conducted by an officer of the Department of Immigration and Citizenship on 31 July 2013 with the assistance of a Farsi interpreter. The appellant’s answers were recorded by the officer in English in a standard form (Arrival Interview Form). By reason of his mode of arrival, the appellant has the statutory status of being an “unauthorised maritime arrival” which, by s 46A(1) of the Migration Act 1958 (Cth), prevented him from making a valid application for a visa. By letter dated 27 July 2016, the appellant was notified that the then Minister for Immigration and Border Protection had exercised the power under s 46A(2) to lift the s 46A(1) bar to allow him to apply for a TPV or a Safe Haven Enterprise visa.

4    On 11 July 2017, the appellant filed a TPV application, which was prepared with the assistance of a registered migration agent. By email dated 17 July 2017, the appellant’s migration agent provided a delegate of the relevant Minister with a statutory declaration made by the appellant on 15 July 2017, which declaration is said to be a “preliminary statement of PV claims” and which quotes extensively from portions of the Arrival Interview Form. I will return to this later.

5    The appellant attended an interview for his TPV application on 22 January 2019. An officer of the Department of Home Affairs conducted the interview, a transcript of which is in evidence.

6    By decision dated 10 May 2019, the delegate refused the appellant’s TPV application. The delegate’s record of decision is comprehensive. It was referred to the Authority for review as required by s 473CA of the Act. The Authority’s decision, which is expressed in 42 paragraphs over a mere seven pages, is dated 17 June 2019. As will be seen, the Authority’s decision is cursory; even perfunctory.

The Authority’s decision

7    The Authority summarised the appellant’s claims for protection as follows (as written):

•    He left Iran after conflict with Sepah Pasdaran. They came to his home when they were having a family party for his son’s first birthday. Ten people attacked the house and hit the applicant’s father, who is old, so the applicant got upset and pushed sepah police officer. After that sepah took the applicant in the car by force and arrested him for 45 days. Intelligence used to come and hit him on his hands. He was tortured, handcuffed hung from his fingers and has a broken finger and sore shoulder.

•    A shift soldier offered to let him escape for 2 million toman. On the applicant’s court day, the soldier opened his handcuffs and the applicant escaped. The name of the person who helped him escape was Mehdi Zimak. The applicant’s older brother paid him the 2 million. He was not charged as he escaped on the date of court and did not go to court.

•    The applicant went to Tabriz for a year and to Kermasche [scil. Kermanshah] after that.

•    The same people have been to his family home more than 10 times. They took his ID card and driver’s licence. He fears arrest, detention, torture and mistreatment.

•    The applicant is fearful for his Australian citizen partner and their children if he returns to Iran as he is the principal breadwinner as a painter and decorator working six days a week. He fears his family will not be able to safely migrate and resettle in Iran. His Australian wife is Christian and they will suffer if his protection visa is refused and he has to return to Iran.

•    He departed Iran illegally on his friend’s passport but had no difficulties going through the airport.

•    At the protection interview he also added that he liked and shared some Facebook posts.

8    In relation to the raid and the appellant’s arrest, detention and escape, which sequence of events I will refer to as the central narrative, the Authority found the appellant’s account to be vague, lacking in detail and credibility and inconsistent. In support of that finding, the Authority found that the appellant gave inconsistent statements about the volume of music at the party, that the appellant had difficulty recalling when the Sepah raided the house and that, whilst the appellant claimed he was asked many things whilst in detention by the Sepah, he could not articulate anything that he was asked.

9    In relation to the escape, the Authority considered that the appellant’s account lacked detail and credibility. It reasoned as follows:

14    The applicant said he escaped when he was being transferred to court by car as the officer unhandcuffed him and he got on a bus and went to Tabriz. He provided no description of how he managed to escape from the vehicle, avoid detection or how he got to the bus station undetected. I find it difficult to believe that even if unhandcuffed due to bribery that he could escape custody on the way to his court hearing from prison and not be apprehended. It is not credible that he could escape in those circumstances.

10    That amounts to a finding that the appellant’s account is inherently unlikely to be true. Similarly, the Authority found it difficult to believe that the Iranian authorities could not have found the appellant in the two years he remained in Iran, first in Tabriz and later in Kermanshah, after his escape if his account of the escape were true.

11    The Authority also rejected the appellant’s claims in relation to his identity documents. Those claims were that he did not have originals of his identity documents at the time of his TPV interview because they had been taken by the Sepah. The Authority found that the appellant gave inconsistent accounts of when the Sepah had taken his identity documents and that it was recorded in notations to authorised translations of the identity documents certified in October 2017 that the translator had sighted the original documents.

12    The appellant also claimed that a few warrants were issued for his arrest and that they had been sent to his house although he did not have a copy of the warrants and had not even seen them. The Authority considered that, when asked about the warrants and the visits by the Sepah to the appellant’s home after he escaped from custody, the appellant avoided the question and afterwards said that he told his parents that he did not want to talk about it anymore and he just wanted to put it behind him. The Authority did not believe that the appellant would not have had more interest in the visits by the Sepah to his home and the arrest warrants. On that basis, as well as country information about the process in Iran of serving arrest warrants, the Authority did not accept that an arrest warrant had been issued for the appellant.

13    The Authority further noted that although the appellant had some contact with his parents, he did not have any contact with his wife and child whom he claimed to have not seen since his arrest in 2011. It found this difficult to believe.

14    The Authority did not accept that the appellant was able to depart Iran illegally and on a friend’s passport. It considered that it was not credible for the appellant to have passed through the many checkpoints at Tehran airport and then in other countries on a passport that was not his. That view was reinforced by country information, namely a Danish immigration service report.

15    The Authority raised a number of further alleged inconsistencies including in relation to when the appellant was divorced and when he left school, and it did not accept the appellant’s claims that he had shared any anti-government posts on Facebook or that he owed military service to the government. The Authority’s overall conclusion was as follows:

28    Having considered the applicant’s evidence, I consider the applicant is not a credible witness and has fabricated his claims in their entirety. I do not accept the applicant’s home was raided in September 2011 or that he was taken into custody or escaped, had arrest warrants issued or that he was or is of any interest to authorities. I do not accept his family was visited by authorities. I do not accept he had only three years of education or that his wife divorced him while he was in Australia. I do not accept that he departed Iran illegally or used his friend’s passport to depart. I do not accept that he has not completed military service or avoided military service or that he has or will be perceived to have any anti-regime political opinion. I do not consider the applicant faces any real chance of harm on that basis.

The proceeding below

16    By amended application, the appellant alleged a single ground of review in the proceeding in the Circuit Court, namely that:

The finding made by the second respondent (the IAA) at [11], that “the applicant’s account was vague, lacked details and credibility and was inconsistent”, and its consequential finding, at [28], that “the applicant is not a credible witness and has fabricated his claims in their entirety”, was unsupported by the evidence and failed to take account of or misconstrued evidence provided by the applicant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

17    That ground of review contained 14 particulars alleging error in each of the Authority’s findings. They may be conveniently re-grouped and summarised as follows:

(1)    The central narrative: the Sepah raid, arrest, detention and escape from custody:

(a)    particular (a) concerned inconsistencies in the appellant’s accounts of the volume of music at the party;

(b)    particular (b) concerned the appellant’s difficulty in remembering the precise time of the raid;

(c)    particular (c) alleged that there was no evidentiary basis for the Authority’s assertion that “the applicant’s description of the raid, his arrest and detention was vague and lacked details”;

(d)    particular (d) alleged that the Authority’s finding that the appellant’s description of his escape lacked details and credibility was not based on a fair assessment of the evidence and that there was no evidentiary basis for the finding; and

(e)    particular (g) alleged that the Authority’s finding that it is not credible that the appellant would not have been found by the Iranian authorities, given the circumstances of his alleged escape, was based on an unfounded assumption about the competence of Iranian authorities.

(2)    Departure from Iran on a friend’s passport: particular (l) concerned the lack of information provided by the appellant regarding the provision and use of the friend’s passport to exit Iran, as well as the finding by the Authority that it is not credible that the appellant could have left Tehran airport on a passport that was not his.

(3)    Identity documents:

(a)    particular (e) concerned alleged inconsistencies in the appellant’s account of his identity documents being taken by the Iranian authorities;

(b)    particular (f) alleged that the Authority’s finding that the appellant had his original identity documents after he arrived in Australia was based on a misconstruction of the evidence; and

(4)    Arrest warrants: particular (h) concerned the Authority’s finding that the appellant was evasive when questioned about arrest warrants issued in Iran and its subsequent finding that no arrest warrants were issued for the appellant.

(5)    Other miscellaneous findings:

(a)    particular (i) alleged that the Authority’s disbelief in the appellant’s failure to contact his wife after his escape was based on unwarranted assumptions about the nature of their relationship;

(b)    particular (j) concerned alleged inconsistencies in the appellant’s evidence about the timing of his divorce;

(c)    particular (k) concerned inconsistences in the appellant’s evidence about how many years of schooling he had completed;

(d)    particular (m) concerned the Authority’s failure to accept that the appellant shared or liked anti-government posts on Facebook; and

(e)    particular (n) concerned the Authority’s failure to accept that the appellant faces any real harm on the basis of having failed to enlist in compulsory military service.

18    Save for the challenges in particulars (j) and (k), which were conceded by the Minister to involve mistakes of fact, the primary judge did not find error in respect of any of the remaining 12 particulars.

19    In relation to the Sepah raid, the primary judge considered (at [76]) that it was open to the Authority to find that the appellant gave inconsistent accounts of the volume of music at the party and to take this inconsistency into account in assessing his overall credit and reliability.

20    In respect of particulars (b) and (c), the primary judge held (at [79]-[80] and [82]) that these invited the Circuit Court to undertake impermissible merits review and that it was in any event open to the Authority to conclude that the appellant’s account lacked the level of detail and plausibility that might be expected. His Honour emphasised that the appellant attended his TPV interview with a migration agent and that he was reminded at its commencement that it was his responsibility to raise all of his claims for protection and provide evidence in support.

21    The primary judge made the same remarks (at [79]-[80] and [82]) concerning particular (d) in relation to the appellant’s account of his escape from custody. His Honour also held (at [83]) in relation to both particulars (d) and (g) that they have no merit and that:

It was open to the Authority to find, without more, that the claim that the applicant was able to bribe a single guard and then escape from custody on the way to Court, was not plausible. Consideration of this claim does not require specialist knowledge of Iranian security agencies. On its face it was inherently unlikely. The Authority was entitled to so find.

22    In respect of the appellant’s departure from Iran on a friend’s passport, the primary judge made the same remarks as those summarised at [20] above. His Honour rejected (at [81]-[82]) a distinction between the difficulty of passing security checks at Tehran airport using a forged passport, on the one hand, and a genuine passport whose holder the appellant impersonated, on the other hand, as a distinction without a difference. That rejection was based upon country information in a DFAT report which states that:

It might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran. (Emphasis added.)

23    As such, the primary judge found (at [89]) that it was open on the country information for the Authority to find that the appellant did not depart Iran using a friend’s passport.

24    In relation to the appellant’s identity documents, the primary judge held (at [86]-[87]) that it was open to the Authority to find that the appellant gave inconsistent accounts of when his identity documents were taken by the authorities in his TPV interview and also that the appellant had provided an original identity document to a translation service in 2017, i.e., after his arrival in Australia. The latter finding in relation to particular (f) is based upon a notation on the translation of the appellant’s identity card stating “original sighted” whereas the notation on the translation of the appellant’s birth certificate stated “ORIGINAL COPY SIGHED” (sic).

25    As to the Authority’s finding that the appellant avoided answering questions about the alleged warrants issued for his arrest, the primary judge held (at [88]) that it is clear that the appellant told the officer at his TPV interview that he told his family not to “talk about that issue any more” and that provided a sufficient basis for the Authority’s finding as it was an open interpretation. As such, the primary judge held that it does not amount to error in an application for judicial review.

26    Particular (k) alleged that the inconsistency in the appellant’s account concerning how many years of schooling he had completed, which inconsistency the Authority found to be an example of the appellant “telling untruths”, was objectively irrelevant to the appellant’s claims for protection. The primary judge rejected this argument and held (at [77]) that:

Where the applicant’s claims rest solely on his evidence (given there was no other supporting documentary or witness evidence adduced) the Authority was entitled to look at the whole of his evidence closely to consider the applicant’s reliability and credibility as to the central claims relied upon… [T]he Court agrees with the submission of Counsel for the [Minister] that there is no indication that the Authority placed undue weight on that particular matter in coming to the conclusions it did.

27    Finally, as to the Authority’s findings regarding the appellant’s activity on social media and want of compulsory military service, the primary judge (at [78]) did not accept that these matters informed the Authority’s credibility finding concerning his claim for protection.

28    The primary judge concluded at [91] that:

Even if the Court is wrong about some of the conclusions as to individual particulars … the Court remains of the view that there is still sufficient support for the Authority’s ultimate conclusion that the applicant had fabricated his claims for protection. The Court is satisfied that the central legs of the applicant’s claims that relate to his arrest, escape, living in the community undetected for 2 years and then flying out of Iran on a fraudulent passport, in the sense that it was not his, were open to the Authority to find as simply not credible.

The appeal

29    The notice of appeal sets out the following two grounds of appeal (as written):

1    The approach of the Federal Circuit Court when determining whether there was error in the finding by the second respondent that the appellant was not a credible witness was characterised by appellable error.

Particulars

(a)    The finding of the second respondent that the appellant was not a credible witness was based on fourteen separate findings that parts of the appellant’s claims and evidence were inconsistent, implausible, or otherwise material to the trustworthiness of the appellant.

(b)    The nature of the second respondent’s credibility findings required the factual basis of each of the fourteen findings to be closely considered, in order to determine whether there was error in one or more of those findings which would, overall, require the decision to be set aside for jurisdictional error. It may well be that a number of adverse findings on credibility will be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands: AWU16 v Minister for Immigration [2020] FCA 513 at [20] (Mortimer J).

(c)    The Federal Circuit Court at [70]-[74] discouraged the approach described above. Instead the Court preferred a holistic approach, to consider the decision overall, rather than closely examine the separate findings.

2    The consideration of the Federal Circuit Court of the fourteen separate findings made by the second respondent was insufficient, such that the Court erroneously failed to identify where the findings were unsupported by the evidence, or failed to take account of or misconstrued evidence provided by the appellant, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

Ground one – the approach of the primary judge

30    The first ground alleges error in the holistic approach taken by the primary judge to reviewing the adverse credibility finding by the Authority. In my view, this ground is based upon a misunderstanding of the primary judge’s reasons. The impugned paragraphs of the primary judge’s reasons are the following:

70    Counsel for the applicant asserts that each of the items 1-14, which consists of each and every factual finding by the Authority, is flawed in terms of the underlying factual basis upon which the adverse conclusion is based or otherwise and, taken together, add up to a decision which is affected by jurisdictional error.

71    The danger with this approach is that it by the very nature of the exercise the Court is required to undertake to consider the applicant’s claims, it involves a detailed examination of the findings of the Authority. It invites the Court to look at the decision with ‘an eye finely attuned to error’. Further, the very nature the inquiry required has the capacity to ensnare the Court in impermissible merits review. Such an approach is not to be encouraged.

72    The Authority is entitled to look at the claims of an applicant holistically in determining if the claim is made out. Some matters considered individually may be tangential, however in an overall credit finding, they may add weight to a sound conclusion that the applicant’s claims lack credit. This is especially the situation, like in the present matter, where the applicant’s case rests solely upon his evidence and is not supported by any other independent documentary or other witness evidence.

73    It is also appropriate to comment on the quality of the Authority decision. There is little by way of reference in the decision to the material that was ‘before’ the Authority. In fact there is only one footnote in the entire decision of the Authority at paragraph 20 of its decision, which refers to UK Home Office and Canadian Immigration Refugee Board- Iran material. While there are references to DFAT and other material in the body of the decision, the precise source of this material is not clear.

74    This has required the Court to closely examine this information to satisfy itself that the source exists and has been correctly summarised. Given the nature and importance of the decision, this type of inquiry by the Court should not be necessary. By way of comparison, the decision of the delegate is thoroughly footnoted and of a much better quality than that of the Authority.

31    It can be seen that the primary judge at [71] discouraged an approach that required his Honour to review each and every error alleged by the particulars set out above. At [72], the primary judge considered that the Authority is entitled to look at the claims of an applicant holistically. That paragraph says nothing about the Court’s approach to reviewing the Authority’s decision. At [74], the primary judge notes that, by reason of the lack of referencing in the Authority’s decision as described at [73], his Honour was required himself to closely examine the material in support of the findings impugned by the appellant. As set out above, that is a task his Honour in fact undertook, in spite of discouraging that approach at [71].

32    Appeal ground one therefore fails.

Ground two – unreasonableness

33    The second ground alleges that the primary judge’s consideration of the findings made by the Authority was insufficient such that “the decision” was seriously lacking in foundation, rationality and logical coherence so as to amount to being legally unreasonable. Although the ground is formulated in such a way as to contend that the primary judge’s decision was legally unreasonable, it was clearly enough intended to contend, and the appeal was argued on the basis, that the Authority’s adverse credit finding was unreasonable and that the primary judge was wrong to hold otherwise.

34    It is convenient first to address some matters of legal principle. It is common ground that the statutory power of review under s 473CC of the Act is required to have been exercised reasonably. The applicable principles were recently summarised by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15. At [31], her Honour said that:

“Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker. That conclusion will be open where a decision is “so unreasonable that no reasonable person could have arrived at it”, although it is by no means limited to such a case. It is concerned with both outcome and process.

(Original emphasis; footnotes omitted.)

35    Her Honour elaborated at [43] as follows:

As stated above, unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said [in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [133] and [135]]: “the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage” and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) “if there is no logical connection between the evidence and the inferences or conclusions drawn”. Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness.

(Original emphasis; footnotes omitted.)

36    It is well-established that credibility findings are not immune from judicial review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all 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: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.

37    The Authority’s finding that “the applicant is not a credible witness and has fabricated his claims in their entirety”, set out in full at [15] above, relies on intermingled findings in coming to that conclusion, many of which are impugned by the appellant. Although the Minister concedes that some of the findings involve errors of fact, he submits that those errors do not amount to the Authority’s adverse credit finding being in jurisdictional error by reason of unreasonableness. It is necessary to consider each of the alleged errors, and then to assess whether any accumulation of errors is such as to render the decision as a whole unreasonable. It is also necessary to bear in mind that the Authority did not itself interview or see the appellant. Its adverse credibility findings are therefore not supported by any considerations of demeanour.

The challenged findings

The central narrative: the Sepah raid and detention, and escape from custody

38    The Authority addressed the appellant’s claims as to the Sepah raid and his subsequent arrest, detention and escape from custody as follows:

10    The applicant claimed Sepah raided a family party for his son’s first birthday at his home in September 2011. He claimed he was arrested because he pushed one of the police who had pushed his father. He claimed he was held for 45 days and escaped on his way to court when a shift soldier unhandcuffed him. He claimed his brother paid a bribe to the soldier [who] unhandcuffed him.

11    However, I found the applicant’s account was vague, lacked details and credibility and was inconsistent.

12    For instance, he claimed in his statements that the music was loud and it was 11pm when the house was raided. However, at the protection interview the applicant claimed the music was not loud and had not disturbed anyone. Further, the applicant had difficulty remembering when Sepah raided the house, but finally said it was about one and a half hours after the party started. The applicant claimed he had developed a loss of memory as he had lost his son in Australia. While I accept that his son passed away in Australia, there was no medical evidence that the applicant had developed loss of memory. Further, I find it difficult to believe he would recall so little of the trigger and key event of his protection claims.

13    The applicant’s description of the raid, his arrest and detention was vague and lacked details. For instance, while he said he was asked many things, he did not articulate anything that he was asked or what happened during his 45 days detention. He did not remember what the authorities said or did when he was arrested and said he did not retain the information because he was shocked and it was awhile ago. However, I find it difficult to believe that he would have so little information about such a key event.

14    The applicant’s description of his escape lacked details and credibility. The applicant said he escaped when he was being transferred to court by car as the officer unhandcuffed him and he got on a bus and went to Tabriz. He provided no description of how he managed to escape from the vehicle, avoid detection or how he got to the bus station undetected. I find it difficult to believe that even if unhandcuffed due to bribery that he could escape custody on the way to his court hearing from prison and not be apprehended. It is not credible that he could escape in those circumstances.

…

17    Further, it is not credible that if he had escaped on the way to court that he would not have been found in Tabriz or Kermasche [scil. Kermanshah] before he departed Iran in mid-2013. I find it difficult to believe that if he had escaped in such a manner that he would not have been found by authorities almost in two years later. He also worked in two coffee shops until his departure, so was not in hiding. Further, while the applicant claimed the authorities visited his family home many times and asked his friends about him, I find it difficult to believe that the authorities could not have found him in the two years he remained in Iran, if he were wanted for hitting an officer and escape from custody.

39    The finding made by the Authority at [11] is that the appellant’s account – which account can be taken to refer to the central narrative of the Sepah raid, his arrest, detention and subsequent escape at [10] – was “vague, lacked details and credibility and was inconsistent”.

Particular (a) – inconsistent accounts of volume of music

40    The first matter relied upon to reach that finding concerned inconsistencies in the appellant’s accounts of the volume of music at the party. In both his arrival interview and his statutory declaration in support of his protection visa, the appellant stated that the music at the party was loud. However, in his TPV interview, the appellant stated that the music was not loud, “[i]t wasn’t annoyance to no-one, yeah”.

41    The appellant submits that the “minor discrepancy between the arrival interview and the TPV interview was of no material significance”. That submission should be accepted.

42    It is well established that although the Authority is entitled to rely on inconsistencies in assessing credibility, that assessment must be conducted fairly and reasonably taking into account the fact that it is well recognised that assessing asylum seekers’ reliability and credibility involves particular features and considerations, and calls for a careful and thoughtful approach: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [23] per Kenny, Griffiths and Mortimer JJ. Some of those particular considerations were articulated in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15] per Lee, Carr and Finkelstein JJ:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

43    Thus in ASB17 v Minister for Home Affairs [2019] FCAFC 38; 368 FCR 271, the Full Court (Griffiths, Mortimer and Steward JJ) observed at [44] that:

Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding.

44    Where a decision-maker such as the Authority has identified an inconsistency, the task required of it was explained in AVQ15 at [28] as follows:

[T]he decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. This requires consideration of, for example, the significance of the inconsistency having regard to the person’s case as a whole and whether the inconsistency is on a matter which is central to the person’s case or is at its periphery and involves an objectively minor matter of fact. It also requires the decision-maker to remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

45    In ASB17 it was further explained at [44] that:

simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

46    In the present case, it is to be observed that the inconsistency forms part of the Authority’s reasoning supporting the finding that the appellant’s central narrative was “vague, lacked details and credibility and was inconsistent”. It is also to be observed that the appellant’s accounts of the volume of music was the only inconsistency identified by the Authority in making that finding. There is nothing in the reasons of the Authority to show that it made any assessment of the significance of the inconsistency and the weight to be given to it. Instead, the Authority adopted an approach of stating its finding of adverse credit at [10] and then simply citing the inconsistency at [11] in support. That is, in substance, the same approach as that which the Full Court in ASB17 considered “may not be a rational or legally reasonable approach”.

47    The Minister submits that this inconsistency was but a mere example of the Authority’s concerns about the consistency of the appellant’s account and that the Authority held some concern about this particular example. The Minister also submits that nothing in the Authority’s reasons suggests that the inconsistency was given significant weight or importance.

48    However, and as mentioned, this is the only identified inconsistency in the appellant’s account concerning the central narrative described at [10] of the Authority’s reasons. The Minister’s submission glosses over this fact and, critically, fails to grapple with the absence of any assessment of the significance of the inconsistency and weight to be attributed to it. If only limited weight were to be attributed to it, then by itself it could not rationally support the finding that the appellant’s account in relation to the central narrative, was, among other things, inconsistent; if there are further examples of inconsistencies, the Authority does not articulate them and nor does the Minister identify them.

49    In the absence of any further inconsistencies, the inevitable inference is that the Authority attributed significant weight to the inconsistency. The difference in accounts concerns a matter of subjective sense perception in relation to an event almost two years prior to the first account and more than seven years prior to the second, putatively inconsistent, account. Moreover, the explanation given in relation to the music not being loud was that it was not an annoyance to anyone, i.e., the music was not so loud as to have caused an annoyance such as to justify the intervention of the authorities. That is not necessarily inconsistent with the earlier statement that the music was loud; it is a relative question which depends on other unexplored factors such as whether the music was being played inside or outside and the proximity of neighbouring properties. It was irrational for the Authority to treat such a difference as sufficiently significant to ground the conclusion that the appellant’s central narrative was inconsistent. On any view, the inconsistency is minor, even trivial. It was thus for the Authority to explain, in accordance with the principles set out in AVQ15 and ASB17, why the inconsistency was to be given the significance that it gave it.

Particular (b) – difficulty remembering time of raid

50    The second matter relied upon by the Authority is its finding that, at the TPV interview, the appellant had difficulty remembering when the Sepah raid occurred, but finally said it was about one and a half hours after the party started. The appellant contends that that finding is not based upon a “fair reading” of the evidence. That contention should be accepted.

51    The relevant extract from the appellant’s TPV interview is as follows:

DOHA OFFICER: … You stated that – excuse me – that ten Sepah officers entered your house and raided the house, is that correct?

APPLICANT: Yes.

DOHA OFFICER: And, how long had the party been going for when this happened?

APPLICANT: I – I can’t tell it, because I don’t remember it.

DOHA OFFICER: That’s okay.

APPLICANT: How many minutes, or how many hours, or - - -

DOHA OFFICER: No, not accurate.

APPLICANT: - - - [0:27:37] to the – yeah.

DOHA OFFICER: Towards the end it had been going for a fair time, had it, the party?

APPLICANT: About one, one and a half hours past the start, but I’m not sure.

DOHA OFFICER: That’s okay. I know it’s a while ago.

52    As can be seen, the appellant was not asked to identify the time of the raid but rather how long the party had been going when the Sepah raid occurred, and he was not asked and did not volunteer when the party started. That is relevant because of the Authority’s finding that the appellant had difficulty remembering the time of the raid (rather than the elapsed duration of the party) which led it in turn to find it “difficult to believe that [the appellant] would recall so little of the trigger and key event of his protection claims”. The implication is that the Authority considered that the time of the raid is a key detail of the event triggering the appellant’s protection claims, which detail he should be expected to be able to recall. However, in both his arrival interview and his statutory declaration in support of his protection visa, the appellant recalled the time of the raid, namely, that it occurred at 11pm.

53    What in truth the appellant had difficulty recalling at the TPV interview more than seven years later was the elapsed duration of the party at the time of the raid. The appellant quickly sought to clarify, without any prompt from the officer, how precise his answer was expected to be. After the officer clarified that he was not seeking a precise answer, the appellant gave an approximation of one to one-and-a-half hours. That the appellant found it difficult immediately to recall this detail at an interview more than seven years after the event is hardly surprising and a circumstance of which the interviewing officer appeared to be cognisant. Indeed, it might be regarded as suspicious if the appellant were able to immediately recall the elapsed duration of the party over seven years later. In that respect, it is well to remember the observations of the Full Court in ASB17 at [45]:

It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility.

54    Also, the Authority’s finding that it was “difficult to believe” – that is to say, implausible – that the appellant would recall “so little” of the trigger and key event of his protection claims does not appear to rely on any further material. In fact, the appellant recalled many details concerning this trigger event. Without transgressing into particular (c), those details included that there was a party for his son’s first birthday, the party was in September 2011 at his father’s house in Tehran, certain family members were in attendance, there was music, there was no alcohol, ten Sepah officers conducted the raid, an officer pushed his father, he pushed the officer in return to protect his father, and he was then arrested. It is difficult to identify just what more the appellant was expected to recall seven years after the event so as to justify a finding that he recalled “so little” of this “trigger and key event”. It is also not evident, or explained by the Authority, why the time of the raid is so significant a detail such that if the appellant’s account is true he would be expected to remember it seven years later at the TPV interview. On the face of it, the time of the raid is of no significance to the central narrative and to the appellant’s experience and is therefore not something which he would be expected to remember. Indeed, if the narrative was an invention he could easily have given any time as the time of the raid.

55    Some further details of the event are identified in relation to the next particular, to which I now turn.

Particular (c) – description of raid, arrest and detention

56    The third matter impugned by the appellant is the Authority’s finding that the appellant’s description of the raid, his arrest and his detention was vague and lacked detail. That is, the appellant’s description of the central narrative, save for his escape which is dealt with in particulars (d) and (g), was vague and lacked detail. The appellant contends that that finding is not based upon a “fair reading” of the evidence. The appellant also relies upon the fact that the interviewing officer expressed satisfaction with the appellant’s answers and he was not asked to elaborate on any of the details provided.

57    The Authority cited two examples in support of the impugned finding. The first example was that:

while [the appellant] said he was asked many things, he did not articulate anything that he was asked or what happened during his 45 days detention.

58    That example finds no basis in the evidence. The relevant portions of his TPV interview are as follows:

DOHA OFFICER: Okay. And, what happened to you during your – your time in their detention?

APPLICANT: Yeah, they – over and over they tortured me, and even they broke my finger. I’ll show it to you.

DOHA OFFICER: Broke your finger. Wow.

APPLICANT: Yeah.

DOHA OFFICER: Yeah.

APPLICANT: And, they hurt me a lot.

DOHA OFFICER: Just for the information of the recording, the Applicant has shown me an area on his hand which he claimed was broken by the Sepah during his detention, a very twisted finger. Thanks. And, did they – did they accuse you of anything, or were they just punishing you? What was the reason they were doing this to you?

APPLICANT: Yeah, they would hit me, and they would tell me many – they talked to me a lot, they would tell me many things. But, I was wondering why they are talking, you know – where – why they’re having this talk with me, and why they were hitting me.

DOHA OFFICER: Okay.

APPLICANT: Yeah, and many time when I asked them – when I begged them not to hit me anymore, not to hurt me anymore, they say, “If you talk – if you talk a lot I will – we will kill you. Don’t talk. If you talk more we will kill you.”

(Emphasis added.)

59    As can be seen, at no point did the appellant say that he “was asked many things”. Instead, he stated that the Sepah “would tell me many things”, which things he articulated as threats to remain silent. The appellant also articulated some events which occurred during his detention, namely that he was tortured and that his finger was broken as a result. Further information about his detention was also provided in his arrival interview. In particular, he stated that “one intelligence used to come and hit me on my hands and used to tell me why did you hit the authority person (sic)” and that he was handcuffed and hung from his fingers by a tall officer whose ears were both “broken”, which I understand to mean that they were disfigured.

60    As the Authority’s first example has no evidentiary basis, it cannot support the finding impugned by this particular.

61    The Authority’s second example in support of the impugned finding was that the appellant:

did not remember what the authorities said or did when he was arrested and said he did not retain the information because he was shocked and it was a while ago.

62    That also finds no basis in the evidence. Evidently, the Authority seized upon the following exchange in the TPV interview:

DOHA OFFICER: Okay. I see. So, did – when they grabbed you and took you away did they do anything else in the party? Did they take things, or did they question other people, or anything like that?

APPLICANT: Yeah, I don’t remember exactly, but at that moment I was the sort of front, and it’s been a while that – you know, past that incident, and I don’t remember really what happened. And, it was so quick that I couldn’t retain it.

63    As can be seen, the appellant’s answer was in response to a question by the interviewing officer as to whether the Sepah did “anything else” at the party. That is, the appellant was stating that he could not recall anything in addition to the details that he had already given, which details included that:

(1)    the party was raided by ten Sepah officers;

(2)    his father met the officers at the door and the officers pushed his father;

(3)    the appellant in turn pushed one of the officers in defence of his father;

(4)    the officers arrested the appellant and pushed him into a car;

(5)    the appellant asked the officers a few times why he was being arrested and they said because “You have raised your hand on the government’s subjects, or property”;

(6)    no one else at the party was arrested; and

(7)    the appellant was taken to and held in the police station in Shapoor.

64    As the Authority’s second example also has no evidentiary basis, it too provides no support for the finding impugned by this particular.

65    In the circumstances, the fact that the Authority considered that these examples provided support for the impugned finding is unreasonable. Not only do I accept that the impugned finding is not based upon a “fair reading” of the evidence, I also accept the stronger contention, agitated before the primary judge, that the impugned finding and the examples upon which it relies have no evidentiary basis.

Particular (d) – details and plausibility of escape

66    By this particular, the appellant challenges the finding made by Authority that his description of the escape lacked detail and credibility.

67    In respect of the lack of detail, the Authority said that the appellant “provided no description of how he managed to escape from the vehicle, avoid detection or how he got to the bus station undetected”. The appellant contends that the Authority misrepresented the evidence in that he was responsive to each of the interviewing officer’s questions in his TPV interview. In particular, he provided details, either in that interview or his arrival interview, as to:

(1)    the name of the shift soldier who assisted in his escape and opened his handcuffs;

(2)    the reason the shift soldier helped him escape, namely that the shift soldier was paid a bribe by the appellant’s older brother in the amount of 2 million Toman (around $640 at current exchange rates);

(3)    the date of his escape; and

(4)    the fact that he escaped from a car transporting him to court and he then went to the bus terminal.

68    The Minister contends that, notwithstanding the appellant having provided these details, he nevertheless provided no details as to how he had escaped from the vehicle while being transported to court and avoided detection immediately thereafter. I accept that is so. However, it is difficult to know how much more detail the appellant could have provided in relation to his escape, and it is to be observed that the interviewing officer did not seek any further information. The appellant was not to know that if he did not give more detail he might for that reason be disbelieved.

69    Given the matters which the Authority considered were scant in detail, the finding as to want of detail is inextricably linked with the Authority’s finding that it is:

difficult to believe that even if unhandcuffed due to bribery that he could escape custody on the way to his court hearing from prison and not be apprehended. It is not credible that he could escape in those circumstances.

That is because the mental picture that one conjures up in the mind when told about an escape from custody will differ wildly from person to person depending on the assumptions under which the person is labouring.

70    For example, one might imagine, on one extreme, that the appellant was being transferred under guard by multiple, perhaps armed, officers in a secure vehicle on pre-cleared carriageways. Such a construction of events would of course be based upon certain assumptions about the kind of security that would attach to a person in the appellant’s circumstances. If that is the image that is conjured up in one’s mind, then the appellant’s account of his escape would indeed sound implausible without further detail as to how it is that he managed to escape and avoid detection thereafter. However, those assumptions may or may not be valid.

71    Equally, on the other extreme, one might imagine that the appellant was being transferred under the guard of the very shift soldier that opened his handcuffs in a sedan on busy streets where he could simply disappear into the crowd. On such a construction, which is indeed open on the material, and the assumptions on which it is based, there is nothing implausible about the appellant’s account of his escape. If those assumptions are valid, then there could not be much further detail that the appellant could provide.

72    Thus, it is only in light of what the Authority found “difficult to believe” that the finding as to want of detail makes sense. The appellant submits that the Authority made assumptions about the level and competence of security in Iran over prisoners being transferred to court, which assumptions had no evidentiary basis in the country information or in any identified knowledge of the Authority.

73    As submitted by the Minister, a finding that some claim is difficult to believe is a finding that that the claim is inherently unlikely or implausible. The Minister relies on BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [55]-[56] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [39] and [82].

74    In BQQ15, the Full Court (Yates, Wheelahan and O’Bryan JJ) had reason to consider what a finding of implausibility ordinarily entails. With reference to Republic of Nauru v WET040 (No 2) [2018] HCA 60; 362 ALR 235, the Full Court said:

55    … In WET040 (No 2), the High Court observed at [35], in finding no error in a decision of the Refugee Status Review Tribunal of Nauru:

It was to recognise that, when all these matters were taken together, the respondent’s version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.

56    A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”.

(Original emphasis.)

75    The Minister’s reliance on Djokovic at [39] and [82] is presumably to give content to the meaning of “ordinary human experience” as used in WET040 (No 2) and BQQ15. In that case, the Full Court (Allsop CJ, Besanko and O’Callaghan JJ) considered what, if any, evidence was required in order to establish that the presence in Australia of the applicant, a well-known tennis star who had publically stated that he is opposed to being vaccinated for COVID-19, is or may be a risk to the health or good order of the Australian community. The relevant passages relied on by the Minister are the following:

39    … To these considerations should be added as legitimate bases for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department: see generally [Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403] at [17]–[21].

    …

82    The possible influence … comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti-vaccination sentiment.

76    In Viane, to which reference was made by the Full Court in Djokovic, the High Court considered the extent of evidence required for certain findings made by the Minister concerning the speaking of English and availability of services in American Samoa and Samoa. Those findings were the subject of successful challenge in this Court and it was common ground that there was no objective evidentiary material before the Minister capable of supporting either finding. In upholding the Minister’s appeal, the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) said at [17]:

If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister’s personal knowledge or by reference to that which is commonly known. By “no evidence” this has traditionally meant “not a skerrick of evidence”.

(References omitted.)

77    The Minister submits that the appellant’s narrative of his escape is inherently unlikely to have occurred in the manner alleged and does not accord with ordinary human experience such that it was open for the Authority to find the appellant’s account implausible. In considering this submission, it is well to recall that the Authority did not find the entirety of the appellant’s account concerning his escape to be implausible. Rather, what the Authority found implausible was that the appellant escaped from custody even if he was unhandcuffed due to bribery.

78    Insofar as the Minister contends that evidence or findings in support of the Authority’s impugned implausibility finding are unnecessary because the appellant’s ability to escape in those circumstances does not accord with the probabilities of ordinary human experience (BQQ15) or, based on a modest familiarity with human experience, it requires no evidence (Djokovic), that contention should be rejected. Any such finding could not be based on anything more than speculation or conjecture, for it cannot be said that such a finding would be made in accordance with the Authority’s personal knowledge or by reference to that which is commonly known (Viane). The primary reason for that is that there is no evidence that the Authority has any personal knowledge of or familiarity with ordinary human experience in Iran.

79    In Hathaway J and Foster M The Law of Refugee Status (CUP, 2nd ed, 2014), the authors discuss (at 140) the dangers of relying on plausibility reasoning in the assessment of credibility as follows:

But decision-makers are too often prone to impugn an applicant’s credibility on the basis of some vague sense of the implausibility of the testimony given, described in one case as having been “premised on inferences, assumptions, and feelings that range from overreaching to sheer speculation.” Even the most careful assessment of plausibility about risks in a foreign country must be undertaken with real humility, since the decision-maker’s understanding of plausibility may well be grounded in a view of rationality at odds with circumstances in the applicant’s country of origin. More generally, account must be taken of the twin cautions that “[s]peculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence,” and that any assessment of implausibility must be carefully “tethered to the record … [avoiding] hyperbole.”

(Emphasis added; references omitted.)

80    In DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529, the Full Court considered a challenge to a finding made by the Assistant Minister that the appellant in that case could receive support from his two sisters in a refugee camp in Sudan if he were to be removed to Sudan or South Sudan. The majority (Bromberg and Mortimer JJ) made the following relevant remarks:

52    The Assistant Minister has engaged in nothing more than speculation, without a probative basis. There may be some universal, stereotypical assumption (which provides no probative basis) that family members would support one another. However, at best that assumption might mean family members might aspire, or wish, to support other family members. However, even that assumption is full of other assumptions – about the relationships between the appellant and those two sisters, about the conditions in which the sisters live, and in which the appellant might live, about other dynamics in those two sisters’ lives, and so forth.

53    None of this is to suggest such fact finding was out of the question. However, it needs a probative basis, and some intellectual engagement that is beyond stereotyping and speculation.

    …

57    We accept that in WET040 (No 2) there are several references to human experience, or “everyday” experience, or the like. We also accept that some of those statements occurred in the context of examining arguments about whether a finding was nothing more than speculation. In that case, the Refugee Status Tribunal had concluded that a particular claim made by the respondent was “inherently implausible”. The High Court considered, at [35] and [29], that, where “the respondent’s version of events … ill-accorded with the probabilities of ordinary human experience”, to conclude that the claim was implausible “was not speculative or conjecture. It was a logical deduction grounded in the seeming improbability of the respondent’s version of events.”

58    However, for the reasons we have given, without some factual basis, or more detailed reasoning, it is not possible to describe the Assistant Minister’s reasoning as being based on the probabilities of ordinary human experience. There is no evidence the Assistant Minister was equipped (by any probative material) to assess what “ordinary human experience” in Sudan or South Sudan might look like in any way, let alone in the particular way or circumstances in which a sibling might be able to help or support another sibling. The situation was not that of a sibling arriving into Heathrow airport and having family in a relatively proximate part of the United Kingdom, a developed country familiar to an Australian decision-maker, where it might be said most people have a reasonable standard of living and can access other parts of the United Kingdom, including having reasonable freedom of movement. There was no “popular perception” or “everyday experience” for the Assistant Minister to draw on about Sudan and South Sudan: at least, none which is apparent on the evidence.

(Emphasis added.)

81    The same reasoning applies to reliance on “ordinary human experience” in respect of the finding impugned by particular (d). Without making any findings in relation to, for example, the security oversight of persons such as the appellant being transported to court, whether it was the bribed shift solider or instead a group of officers that were responsible for the appellant’s transfer to court, or the effectiveness of bribery in Iran, it is unclear how the impugned implausibility finding could be made by the Authority other than by mere speculation and conjecture. Indeed, it seems to me to be eminently plausible that a person in custody would be able to escape, even in a developed country such as Australia, if those involved in the person’s custody were bribed and the person was unhandcuffed.

82    The Minister also relies on country information before the Authority, namely a report by the Department of Foreign Affairs and Trade dated 21 April 2016 (DFAT Report), which states at [2.25] that “Iranian police and security forces exert tight and effective security control over the vast majority of the country” and at [2.29] that the authorities “can take a heavy-handed approach to enforcing security”.

83    In my view, the country information does not support the finding of implausibility. It is useful to set out in full the section of the DFAT Report in which the passages relied on by the Minister (but not the Authority) appear:

Security Situation

2.24    DFAT is not aware of any reliable statistics on security-related incidents and violent crime in Iran. There is credible anecdotal evidence that Iran’s economic situation has led to some increase in violent crime and theft. DFAT assesses that the number and level of security incidents in Iran is generally low and the country is relatively peaceful and safe.

2.25     Iranian police and security forces exert tight and effective security control over the vast majority of the country. The presence of security authorities is significant in most areas of the country, including in rural areas. Violent crime is usually harshly punished in Iran and this appears to be a significant deterrent.

2.26     Border areas with Afghanistan and Pakistan - in particularly the Sistan-va-Baluchistan Province - are more unstable and likely to have higher rates of violent crime. Areas near the border with Iraq, - particularly Kurdistan, West Azerbaijan and Ilam provinces and Khorramshahr in Khuzestan province - have a heightened security posture following the gains made by Islamic State of Iraq and the Levant (ISIL) in Iraq.

2.27     Terrorist attacks in Iran are rare, though in past years there have been some attacks instigated by members of the Sunni minority in the border areas targeting Shia mosques and local security officials. Embassies and other foreign interests have periodically been the target of protests.

2.28     Iran accords a high priority to the prevention of drug trafficking and general smuggling and devotes significant effort to increasing its security control over border areas. This has led to regular skirmishes between local security forces and drug traffickers in these areas. There are regular media reports of clashes resulting in fatalities among both security forces and smugglers. Overall, Iran is highly sensitive to the security situation in its region and the potential impact that events in its neighbours may have on Iran.

2.29     Some elements of the Iranian security forces, particularly the IRGC and the Basij (a voluntary force under the command of the Revolutionary Guard - see ‘State Protection’, below), are tasked with monitoring politically-active groups and individuals. Monitoring is also done by the Ministry of Intelligence and Security. Authorities can take a heavy-handed approach to enforcing security if they judge this to be necessary. There can also be occasional morality campaigns to enforce standards of Islamic conduct in which some elements of the security forces are involved. This can include enforcing Islamic dress codes and cracking down on public displays of affection with non-family members of the opposite sex (see ‘Groups of Interest’, below).

84    As can be seen, the sentences from [2.25] and [2.29] relied on by the Minister appear in a section titled “Security Situation” in Chapter 2. In contrast to the sections of the DFAT Report at Chapter 5 that describe Iran’s internal security apparatus, and its structure and oversight, the above-quoted section is primarily concerned to summarise the safety of persons in Iran from terrorism and other forms of violent crime, as well as the safety of persons being targeted for political and religious reasons. The passage at [2.25] says nothing about the security oversight of prisoners being transferred to court. Rather, the sentence plucked out by the Minister is a generalised remark that serves as an introduction to the exposition that follows, which exposition gives the remark content by naming some geographical areas in which security forces have a heightened presence, as well as the kinds of crime and “security situations” that generally attract the attention of the authorities.

85    The Minister’s reliance on [2.29] is also taken out of context; it is obvious that the “heavy-handed approach to enforcing security” referred to in that paragraph is intended as a reference to the “monitoring of politically-active groups and individuals” referred to in the previous sentence. It also qualifies this “heavy-handed approach” as being one that is taken “if they [i.e., the security forces] judge this to be necessary”.

86    However, even if the sentences plucked out of the DFAT Report by the Minister were of themselves supportive of the Authority’s finding, the Authority does not refer to them, let alone engage in any intellectual reasoning in relation to them. Further, the sentences plucked out must nonetheless be considered in light of the country information that contradicts the meaning ascribed by the Minister. That information, which includes other portions of the DFAT Report, discloses that corruption is endemic and that bribery of authorities, including judges, is not uncommon. There is no evidence that the Authority engaged with any of this information.

87    In the result, neither “ordinary human experience” nor country information supports the impugned implausibility finding made by the Authority, namely the finding that, if the appellant paid a bribe such that he was unhandcuffed at the time of his escape, it is implausible that he could have escaped.

Particular (g) – plausibility of avoiding arrest

88    By particular (g), the appellant challenges the Authority’s finding that it is not credible – i.e., that it is implausible – that, given his manner of escape, the appellant would not have been found in Tabriz or Kermanshah before his departure from Iran almost two years after his escape. The appellant submits that there was no evidentiary basis in the country information or Authority’s knowledge for such a finding and that the Authority relied on unfounded assumptions about the level and competence of the authorities’ ability to locate escapees.

89    The Minister contends that the appellant’s claim to having evaded authorities for such a period was inherently unlikely to be true given that he was not hiding in a cave but working in a café. That is in circumstances where, on his own account, he had been detained for 45 days and was tortured, and the authorities visited his family home many times and asked his friends about him. The Minister also contends that the Authority’s finding is supported by country information referred to at [82] above.

90    In my view, for the reasons given above at [83]-[86] in relation to particular (d), the country information does not support the finding of implausibility impugned by particular (g). That is particularly so where the appellant had not committed any crime or undertaken any political activity that is reported in the country information as attracting special attention from the authorities. The Minister’s submission that there was country information before the Authority about the ability of authorities in Iran to apprehend fugitives which supported the Authority’s finding must be rejected.

91    However, unlike the Authority’s finding of implausibility considered in relation to particular (d) above, the Authority does not make a bare assertion of implausibility in relation to this particular but gives reasons as to why it found the appellant’s claim to be implausible: cf WET040 (No 2) at [32]-[35]. Those reasons, limited as they are, concern the surrounding context, namely that the appellant was actively sought by the authorities and that an escapee’s capture is a likely outcome where the escapee is not in hiding.

92    Nonetheless, I do not accept that the circumstances cited by the Authority are sufficient to support the impugned implausibility finding. That is because it depends on unstated assumptions, made without any apparent basis, about the level of commitment of Iranian authorities to apprehend a person such as the appellant, as well as their competence and the resources available to them in successfully achieving that outcome. It is not apparent that the Authority has any personal knowledge of or familiarity with ordinary human experience in Iran from which it can select from the otherwise vastly differing available assumptions on matters relevant to assessing the plausibility of the appellant’s claim to have evaded the relevant Iranian authorities for two years. Tabriz and Kermanshah are cities between 500 and 700 kilometres from Tehran and in different provinces from Tehran and each other. The appellant said that he worked in a café. That might have been informal work on a cash basis making it more difficult for him to be detected. He was not a prominent or public figure and had not previously had any trouble with the authorities. In those circumstances, it is mere speculation to conclude that he would not have been able to avoid detection and that his version should on that account be rejected.

Departure on friend’s passport

93    As mentioned, the appellant claimed that he departed Iran on his friend’s passport and that he had no difficulties going through airport security. He also claimed that he threw away his friend’s passport on his way from Indonesia to Australia on instructions given by the people smuggler.

94    The appellant impugns the Authority’s finding that he “provided little information of why the friend would provide him his passport, the circumstances of him providing the passport or what happened to the friend afterwards”. (A challenge to the Authority’s further finding that “it is not credible that the applicant could leave through so many checkpoints through Tehran airport on a passport that was not his and also through Turkey and other countries on a passport that was not his” in the proceeding before the primary judge is not pressed in this Court. In my view, that challenge is rightly abandoned.)

95    The appellant submits that he provided quite some detail in his arrival interview, including the name of the person whose passport he was using, which name he accurately repeated in his TPV interview some five-and-a-half years later. In what follows, I have given the friend the pseudonym LQA.

96    The relevant portions of the appellant’s arrival interview are as follows:

APPLICANT: - - - I was travelling the different passport.

DIAC OFFICER: You were travelling with a different passport?

APPLICANT: Yes.

DIAC OFFICER: Not your own passport?

APPLICANT: No.

DIAC OFFICER: So where did you get this passport from?

APPLICANT: Well, I had a friend, like, he was so – he was – like our face was similar each other, like really close, and my friend’s told me, “You can travel with that passport because you – your photo is – so, actually, you guys look the same.

DIAC OFFICER: What’s his name?

APPLICANT: [LQA]

DIAC OFFICER: So you travelled on his passport?

APPLICANT: Yes.

…

DIAC OFFICER: Okay. So where is your friend’s passport now? Where is it now?

APPLICANT: The smuggler asked us to rip it and chuck it away.

DIAC OFFICER: Which country was the passport issued in?

APPLICANT: Iran.

DIAC OFFICER: Yeah, what was the passport number?

APPLICANT: I don’t know.

DIAC OFFICER: Whose name was in the passport?

APPLICANT: [LQA]

DIAC OFFICER: And how did you get that passport?

APPLICANT: Well, like, I went to him and explained my situation to him, how – how people are after me and, like, I’m away from my family and stuff. Then I told him I have to leave. He said that he checked – he checked everything, he – he find out that – that it – that’s true, that people are after me, they want to catch me. Then, he said to me, like, “I don’t need this passport at the moment, you can use it now,” and I grabbed his passport.

97    And the relevant portions of the appellant’s TPV interview are as follows:

DOHA OFFICER: Okay. Thanks for that. Have you ever used an alias or a false name?

APPLICANT: No.

DOHA OFFICER: I notice, though, that you said you left Iran on a false passport, is that okay – is that true?

APPLICANT: [0:12:17].

DOHA OFFICER: Okay. Do you recall the name on your passport?

APPLICANT: [LQA].

DOHA OFFICER: [LQA], okay. Do you know who he was?

APPLICANT: He was a normal friend.

DOHA OFFICER: Okay.

APPLICANT: A friend.

DOHA OFFICER: So, it’s a friend of – it’s a real person? Okay.

APPLICANT: Yes.

DOHA OFFICER: Okay. Thanks…

98    In respect of the second of the three items of which the Authority considered the appellant “provided little information”, it can be seen that the appellant provided information concerning the circumstances in which he was provided with LQA’s passport. The circumstances were that:

(1)    LQA was a “normal friend”;

(2)    the appellant explained his situation to LQA including that he was away from his family and “stuff” and that he had to leave;

(3)    LQA told the appellant that he confirmed the appellant’s story; and

(4)    LQA stated that he did not need the use of his passport.

99    Together with the details of LQA’s full name and the claim that the appellant and LQA looked similar, I find it difficult to comprehend what further information the appellant could have been expected to give. In response to a question I asked at the hearing, counsel for the Minister also could not identify any such further information. Save for not being able to recall the passport number, in respect of which there can be no surprise or disbelief, the appellant answered all of the questions asked by the officer in both his arrival and TPV interview.

100    Turning now to the first and third of the three items, namely why LQA would provide his passport to the appellant and what happened to LQA thereafter, although the Authority’s finding that, in respect of those items, the appellant “provided little information” is literally true, it can be seen that in neither of the interviews did the officer ask the appellant for such information. More importantly, it is difficult to understand how or why the appellant is expected to be able to provide such information. In respect of the first item, that is because it goes to another person’s state of mind, and in respect of the third item because it concerns events after he left.

101    The Minister characterises the appellant’s challenge to the impugned finding as being mere disagreement with the Authority’s factual evaluation. I disagree. In the circumstances, the Authority’s finding that the appellant “provided little information” is irrational.

Identity documents

102    As mentioned, the Authority did not accept the appellant’s claims that the appellant’s identity cards were taken by the authorities in Iran and that he no longer had the originals in his possession at the time of his TPV interview. The relevant paragraphs of the Authority’s reasons are the following (as written):

15    The applicant’s account of his identity documents being taken by authorities was inconsistent. In his statement the applicant claimed that his ID and driver’s licence was taken by authorities when they visited his parent’s home more than 10 times. However, initially in the protection interview the applicant claimed the documents were taken the first time sepah came to the house in September 2011. Then later in the protection interview the applicant claimed his identity documents were taken later from his parents home, when he was in Tabriz. I consider the applicant’s account differed in when his documents were taken by Sepah and changed throughout the interview.

16     At interview the applicant claimed he only had a copy of his ID card. I note the applicant had provided a colour copy of the ID card and translation. Further, it was evident from the translation of it that the translator had sighted the original document in October 2017, when he translated the document. I do not accept that the applicant did not have the original ID document or that his documents were taken by the authorities.

103    It appears that the finding in the final sentence of [16] that the applicant’s documents were not taken by the authorities in Iran is supported by the finding of inconsistency at [15] and the finding earlier in [16] that the appellant had originals of his documents in his possession at the time of his TPV interview. By particulars (e) and (f), the appellant challenges the finding of inconsistency and the finding that he had the originals.

Particular (e) – inconsistent accounts of when documents were taken by authorities

104    The appellant submits that he did not give inconsistent accounts as to when his identity documents were taken by the authorities. He says that in his arrival interview and his statutory declaration, he stated that his identity documents were taken by the Sepah. He submits that in the initial portion of his TPV interview, he stated that his identity documents were taken the first time his house was raided by the Sepah. He further says that, contrary to the Authority’s finding, he did not say later in his TPV interview that the documents were taken later from his parents’ home, when he was in Tabriz.

105    The appellant’s submissions should be accepted. In his arrival interview and statutory declaration, the appellant stated in answer to the question “Who will kill you?” the following:

The same people, the Sepah, more then 10 times they have been to my house, they took my national Id card and drivers license too.

106    As can be seen, the appellant says nothing there about when the Sepah took his identity documents.

107    Early in his TPV interview, the following relevant exchange took place:

DOHA OFFICER: Okay. Did you bring any Iranian documents in with you today?

APPLICANT: No.

DOHA OFFICER: Your birth certificate or national identity card?

APPLICANT: Yeah, whatever was I had only access to the copy, I didn’t have the original.

DOHA OFFICER: Okay. So, where are the originals?

APPLICANT: When the – the – the authorities raided our house in Iran first time they took them away with them.

108    In this extract, it can be seen that the appellant states that his original identity documents were taken by the Sepah the first time they raided his home, i.e., on the occasion of the party. It is obvious that thus far no inconsistency arises.

109    Later in his TPV interview, the following exchange took place:

DOHA OFFICER: Excuse me a second mate, sorry. Do you know if – when you were in Tabriz and Kermanshah do you know if your family have been approached by the Iranian authorities trying to find out where you were?

APPLICANT: Yeah, at the time that I talked to my mum she said that, “They have raided your house a few times, and they’ve taken your identity card, and also the national card.” And, yes, they have raided my place a few times. And, when I heard that I was more afraid. I became more afraid of them.

110    The Minister submits that, in this exchange, the appellant claims that while he was in Tabriz or Kermanshah, the authorities raided his house a few times and had taken his identity cards. Although on a cursory reading the exchange could be characterised in the way the Minister contends, in considering whether accounts are in truth inconsistent, it is important to recall what was said by the Full Court in AVQ15 and ASB17. In AVQ15 at [27], it was cautioned that:

the term “inconsistency” should be used with appropriate caution and an appreciation of the danger of using labels or formulae which mask the need for deeper analysis.

111    Consistently with that caution, the following was said in ASB17 at [42]-[43]:

42    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

43    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so…

112    A proper consideration of the exchange between the appellant and the interviewing officer, in light of the above-quoted passages, reveals that, contrary to what the Authority found and the Minister submits, the appellant does not say that the authorities took his original identity documents from his house at some later raid whilst the appellant was in Tabriz. In answer to the question whether the appellant knew if his family had been approached by Iranian authorities, the appellant answers in the affirmative and then elaborates as to how he knows that information, namely that he had spoken to his mother who told him that his house was raided a few times and also that the Sepah had taken his identity card and national card. The detail that the appellant was disclosing here, and what the emphasis of this account is, is what his mother had told him when he was in Tabriz and not that his identity cards were taken when he was in Tabriz or Kermanshah. Thus, as submitted by the appellant, this conversation with his mother is when and how he found out that the Sepah had taken his identity documents. That is entirely reconcilable with what he said earlier in the interview: the appellant found out when speaking to his mother that the Sepah had taken his identity documents, which documents were taken on the day of the first raid. There is therefore no inconsistency.

113    In any event, even if I were to accept in the Minister’s favour that the appellant did give a different account later in his TPV interview, two fundamental issues concerning the Authority’s reasoning (or lack thereof) remain.

114    The first is that the difference can only rationally be characterised as a difference in emphasis or phrasing, which difference is immaterial. Quoting from a decision of the 6th Circuit of the United States Courts of Appeals in Abay v Ashcroft (2004) 368 F 3d 634, the learned authors of The Law of Refugee Status state (at 144) that:

it is all too easy to see a “contradiction” in what may be no more than a difference of emphasis or phrasing. For example,

[w]hether the man who offered [the applicant] a bribe said that he would kill her because of her refusal or merely said that things would go badly for her because of her refusal is relevant to the claim, but it is not necessarily inconsistent. A veiled threat followed by an actual attempt on one’s life is not very different from an explicit threat followed by an attempt on one’s life.

115    The minor difference, if such there is, did not change the essential reason conveyed by the appellant as to why he could not produce the originals of his identity documents at the TPV interview, namely that they were taken by the Sepah. In the context of the appellant’s central narrative, it is immaterial when that occurred. Cf SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589; 165 ALD 463 at [43]-[44] per Allsop CJ.

116    The second issue is that it was incumbent on the Authority to assess the significance of the difference and the weight to be given to it. As was said in ASB17 at [43]:

Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

(Emphasis added.)

This the Authority failed to do. (See also the passages referred to above at [42]-[45].)

117    In the circumstances, I find that even if the appellant gave different accounts in his interview, it was irrational for the Authority to simply label this difference as an “inconsistency” and use it to support the serious adverse credibility finding quoted at [15] above.

Particular (f) – translator’s notation

118    In relation to the Authority’s failure to accept that the appellant did not have his original identity documents at the time of his TPV interview, the appellant insists that, notwithstanding the “original sighted” notation made by the translator, what he had provided was a copy of his national identity card. In support of that position, the appellant relies on the delegate’s decision in which it is recorded that the appellant provided a copy of his national identity card with an accredited translation.

119    The Minister submits that the delegate’s decision does not assist because the delegate made no findings about whether the appellant retained the original or provided the original to the translator. The Minister also draws attention to the translator’s note stating that a photograph was “affixed on the top left hand side of the document’s front page”, which note, the Minister submits, suggests that the document was not simply a photocopy of some other document.

120    In my consideration, neither the delegate’s decision nor the translator’s notation provide support for each of the parties’ respective positions. The delegate’s decision does not assist the appellant for the reasons submitted by the Minister. The notation concerning the photograph does not assist the Minister because the same notation was also made on the accredited translation of the appellant’s birth certificate in circumstances where the translator recorded that they had sighted only a copy of the certificate.

121    The Authority’s reliance on the translator’s notation gives rise to two issues. The first is that, in scrutinising the precise words used by the translator, it is important to bear in mind what was said in W375/01A at [11] (albeit in the context of interpretation of oral testimony rather than translation of documents):

It should not be assumed that the translation is precise… Often the interpreter will not be aware of the significance that will be attached to the precise words that are used.

In stating that “it was evident … that the translator had sighted the original document”, the Authority engaged in no consideration as to whether the notation might be a mistake in that it might not mean what it literally says. Secondly, and no less importantly, the Authority engaged in no consideration as to why, even assuming the notation means what it says, the translator’s notation is to be preferred to the consistent evidence given by the appellant. Such consideration might have sought to answer the question, why would the appellant say that he had only a copy of his national identity card if in truth he had the original? Any such effort would have exposed the fallacy of the so-called inconsistency having any bearing on the appellant’s credibility – there is no reason to suppose that the appellant would lie about whether he had an original of his national identify card.

122    It follows that the Authority’s reliance on the so-called inconsistency of the appellant’s account with regard to his identity documents is flawed and without rational justification.

Arrest warrants

123    The next issue concerns the warrants allegedly issued for the appellant’s arrest that are said to have been left with his family after he had escaped and run away. The appellant was questioned about this in his TPV interview. In relation to that questioning, the Authority found that:

When asked about the warrants and claimed visits to his parents’ home, the applicant avoided the question and said after a while he told his parents he did not want to talk about and put it behind him. (sic)

124    By particular (h), the appellant contends that the evidence does not support the quoted finding insofar as it relates to arrest warrants. He submits that, at the stage of the interview when he recounted that he told his parents that he did not want to talk about “that issue” and that he just wanted to put “it” behind him, the topic of arrest warrants had not even come up. That submission should be accepted.

125    The relevant extract from the appellant’s TPV interview is as follows:

DOHA OFFICER: Okay. Thanks. Okay. Since you’ve been in Australia do you know if your family has had any other contact with the Iranian authorities in relation to you, and where you are?

APPLICANT: Yeah, the first days that I was here, that I – I came here I would have talked to them, and they said, “Yes, they will come here, and they – also they will question your friends of your whereabouts.” But, after a while, when I – I didn’t contact much, and then I contacted, I said, “Don’t talk about that issue anymore, I want to just put it behind me.”

DOHA OFFICER: Okay. You stated in your arrival interview, I believe, that – that you think there was a warrant for your arrest back in Iran. Do you recall saying that?

APPLICANT: Yes, they have, they have issued a few arrest warrants to send it to our house. Yeah.

DOHA OFFICER: Who told you this?

APPLICANT: Yes, I talked to my mother. My told me that, “They have sent some papers here for your arrest, and also they come and watch, you know, stalk the house to see if you are coming around. And, also, they asked the question from your friends, and also us.”

DOHA OFFICER: Do you happen to have a – have you seen the warrant yourself?

APPLICANT: No.

DOHA OFFICER: Do you have a copy of it?

APPLICANT: No.

(Emphasis added.)

126    As can be seen, the appellant did not avoid any question about the arrest warrants or the claimed visits to his parents’ home. In fact, he answered each question asked of him. Nor did the appellant say to the interviewing officer that he told his parents that he did not want to talk about the issue of the arrest warrants or the claimed visits to his parents’ home. The “issue” that the appellant stated to his family that he did not wish to talk about was the continued contact by the Iranian authorities with his family and friends since the appellant’s arrival in Australia. At that point, there was no mention of the arrest warrants. The Authority’s finding has no evidentiary basis.

127    The Minister’s submission that the salient point is the Authority’s finding that it is “difficult to believe” (i.e., implausible) that the appellant would not have greater interest in the repeated visits to his home by the Iranian authorities and the arrest warrants given their apparent significance is without merit. For the reasons above, the Authority’s finding of implausibility is founded upon a finding that has no evidentiary basis. In any event, there is nothing that is implausible about an asylum seeker wishing to put their past behind them after they depart the country from which they seek protection.

Other miscellaneous findings

Particulars (i), (j) and (k)

128    The appellant takes issue with the following findings made by the Authority:

21     Further, if he had been arrested and held for 45 days and then disappeared, I find it difficult to believe that he would not have had some contact with his wife and child for two years to allay their concerns. I note he said he had some contact with his parents, but had none with his wife and child and made no mention that any message of his safety was provided to them.

22     I note at the protection interview the applicant said his wife divorced him after his absence from Iran and she had the paperwork. However, in his arrival interview he said he was already divorced. I note also that the applicant claimed in his 2017 statement that he had only three years of primary education and started work in his father’s vegetable market business when he was nine years old. However, in his arrival interview he said he went to school from 1990 to 1996, completing year 7 of secondary school. I consider these are examples of the applicant telling untruths.

129    By particulars (i) and (j), the appellant alleges that the Authority’s findings of inconsistency in his accounts of the timing of his divorce (at [22]) and the implausibility of him failing to contact his wife and child (at [21]) are based on a misunderstanding of the evidence. In the Circuit Court, the Minister conceded that that is so. However, the Minister contends that these mistaken findings were not significant or critical to the Authority’s reasoning and they did not contribute in any significant way to the ultimate finding that the appellant’s account of the central narrative was not credible. I will return to these contentions later.

130    The Minister further submits that these mistaken findings were given as “examples of the [appellant] telling untruths” and that the schooling example starting at the third sentence of [22], which the appellant challenges by particular (k), is without error. In that respect, the Minister submits that the appellant claimed in both his arrival interview and visa application that he completed seven years of schooling and started working for his father in 1996; however, in his statutory declaration, he claimed that he only completed three years of primary education and started working for his father at the age of 9 (said to be in approximately 1993).

131    I accept, and the appellant does not deny, that he gave inconsistent accounts of the years he spent at school and when he started working for his father. In respect of the latter issue, the Minister is correct in submitting that the appellant stated in his arrival interview and his visa application that he commenced working for his father in 1996 but in his statutory declaration stated that he started working for his father at the age of nine (i.e., after 15 March 1993). The schooling issue is, however, more complicated.

132    In the Arrival Interview Form, the appellant is recorded as stating that he attended primary school from 1990 to 1995 achieving the qualification of year 5 and secondary school from 1995 to 1996 achieving the qualification of year 7. Although the starting and ending months are not recorded, it is notorious that academic years in the northern hemisphere generally begin in the second half of the calendar year – i.e., after the summer vacation. I infer that that is the same for Iran. Thus, the appellant is recorded as stating that he went to primary school for five years and secondary school for one year and that he completed year 7.

133    However, the transcript of his arrival interview reveals a somewhat different story. The relevant extracts are as follows:

DIAC OFFICER: Which school did you go to next, what’s the name of the school?

APPLICANT: The secondary school, [redacted].

…

DIAC OFFICER: Okay. And, how long did you go here for?

APPLICANT: I finish Year 12 – I did – I’m sorry, Year 7.

DIAC OFFICER: So you went there for two years?

APPLICANT: I didn’t even complete Year 7 and after that I finished study.

(Emphasis added.)

134    As can be seen, the appellant appears to have initially struggled with the question concerning how long he attended secondary school. However, it is to be recalled that the interview was conducted with the assistance of an interpreter and, in that respect, the remarks of the Full Court in W375/01A at [11] are relevant:

It must be remembered that people who come to Australia seeking refugee status often speak no English. So the question is usually answered with the assistance of an interpreter. It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant’s true case, and will often be given in words which the applicant would not have chosen were he able to speak English.

135    The ultimate answer the appellant gave is to the effect that he attended secondary school but did not complete year 7. Thus, contrary to what the Authority and the primary judge found and what the Minister submits, the true position of what the appellant stated in his arrival interview is that he attended school for six years from 1990 to 1996 but completed only five years of primary schooling.

136    In his visa application submitted on 11 July 2017, the appellant records that he attended and completed primary school from 21 September 1990 to 1 June 1995 – i.e., for five years. He did not provide details of secondary schooling. That is consistent with what he said in his arrival interview.

137    Then in his statutory declaration dated 15 July 2017 – i.e., a mere four days after submitting his visa application – the appellant declared that he “only had three years of primary education”. As mentioned, he also declared that he started working for his father at age nine. Critically, he then immediately declares that “the dates I have provided in my on-line application are all approximate because I have a lot of difficulty remembering dates”. Inexplicably, the Authority’s reasons do not consider or even refer to this relevant and important explanation.

138    The explanation provided by the appellant is important not only because of what has been said in W375/01A, AVQ15 and ASB17 but also because of the particular context in which it is given. As mentioned at [4] above, the statutory declaration in which the inconsistent declarations are made quotes extensively from the Arrival Interview Form. The inexorable inference is that the appellant had before him the answers he had previously given, which were to the effect that he completed five years of primary school and that he commenced working for his father in 1996. Nonetheless, he volunteered inconsistent information in circumstances where there was no need for him to do so and where he was fully aware that he had previously given accounts which, although consistent with each other, were inconsistent with that which he was volunteering. He then explains why he has volunteered inconsistent information.

139    In the circumstances, I find that the Authority erred both in failing to consider the appellant’s explanation in his statutory declaration and in failing to assess the significance of the inconsistency as required by the authorities previously cited: see [42]-[45] and [110]-[111] above. Insofar as significance is concerned, the questions of what schooling the appellant had and when he started working for his father are irrelevant to his central narrative and his claims for protection. Any inconsistency is more likely to have been a mistake than indicative of dishonesty.

Particulars (m) and (n)

140    The final two particulars impugn the use of the following paragraphs in the Authority’s reasons:

26     Late in the protection interview, the applicant claimed he shared a few posts about executing people in the streets and liked posts about the previous Shah. However, I do not accept the applicant has so shared or liked any anti-government Facebook (FB) posts. The applicant had not mentioned any such claims until the delegate asked the applicant a leading question about this. The applicant provided no detail and did not provide any evidence of such Facebook posts.

27    While he claimed in his application form that he owed military service to the government and that he had never enlisted for compulsory military service because he did not believe he should serve, the applicant made no claims to the effect in his statement or at interview. The applicant did not claim he feared harm on that basis. Further at interview, when the delegate asked him about military service and how he avoided it, the applicant said he did not escape military service, but when working and with a family, he did not complete paperwork and was not considered as escaping military service. I do not accept the applicant faces a real chance of harm or any adverse consequences in that regard.

141    The appellant contends that each of these matters was objectively irrelevant to the fact-finding process to be undertaken by the Authority because he did not base his claims for protection on any Facebook posts or failure to enlist for compulsory military service. He further says that neither of the findings support any suggestion that he was not telling the truth about his claims for protection.

142    Both challenges are without merit. There is nothing to suggest that the Authority took these findings into account in making its credibility finding at [11] (quoted at [38] above) concerning the central narrative as alleged by the appellant. However, these matters were raised by the appellant and, as such, the Authority did take them into account when making its overall conclusion at [28] (quoted at [15] above). The findings are relevant to and support the proposition that the appellant “is not a credible witness and has fabricated his claims in their entirety”.

Consideration

143    As the foregoing analysis of the findings impugned by the appellant makes clear, many of the findings made along the way to and in putative support of the Authority’s adverse credibility findings at [11] and [28] of its reasons can variously be described as either lacking in evidential foundation or irrational.

144    In relation to the appellant’s central narrative which the Authority considered at [11] to be, among other things, inconsistent, the Authority failed to consider the significance and weight to be given to the finding that the appellant gave inconsistent accounts of the volume of music at the party, which inconsistency was the only inconsistency identified by the Authority and the Minister. The Authority also considered the central narrative to be vague and lacking in detail. In relation to the raid and the appellant’s detention, the matters cited by the Authority in support of this finding have no evidentiary basis. Moreover, it is difficult to identify just what more the appellant could have been expected to say in circumstances where he was responsive to each of the questions asked by the officer at the TPV interview.

145    The matters of the central narrative which the Authority found “difficult to believe” are:

(1)    the appellant’s ability to recall “so little of the trigger and key event of his protection claims” – i.e., the time of the raid;

(2)    the want of detail in relation to the raid, the appellant’s arrest and his detention;

(3)    that, even if unhandcuffed due to bribery, the appellant could escape; and

(4)    that the appellant was not found by the authorities in the two years he remained in Iran.

146    As mentioned, the findings of implausibility in relation to items (1) and (2) rely on flawed factual findings: (1) is based either upon a misreading of the TPV transcript or a failure to have regard to the appellant’s previous statements or both, and (2) is based upon findings which have no evidentiary basis. As for items (3) and (4), there is nothing inherently unlikely about the appellant’s account of his escape in those circumstances (i.e., accepting that he was unhandcuffed due to bribery) and the claim that he was not found by the authorities in the two years he remained in Iran. Insofar as those two implausibility findings are said to be supported by country information, I reject that contention; insofar as they are said to be supported by “ordinary human experience”, I too reject that contention.

147    In summary, I have found that each of the errors alleged of the findings in support of the Authority’s finding at [11] that the appellant’s “account was vague, lacked details and credibility and was inconsistent” are made out. Unsurprisingly, it follows that that finding is made without a sufficient rational foundation or an evident or intelligible justification such that it is unreasonable.

148    Turning now to the Authority’s consequential finding at [28] – namely, that the appellant “is not a credible witness and has fabricated his claims in their entirety” – that finding is expressly and necessarily founded upon the Authority’s flawed findings concerning the central narrative. In my view, quite apart from the remaining errors identified above, that is sufficient to establish the appellant’s contention that that finding, too, is made without evidentiary basis. When one then turns to the balance of the Authority’s findings and considers their totality, a deeper flaw than those which the appellant particularised is revealed. The apparent ease and willingness with which the Authority found each and every one of the appellant’s claims to be fabricated, the inconsistencies which it must be taken to have considered highly significant without any reasoning, and the evidence which it either ignored, overlooked or considered to be so obviously damaging to the appellant such that it provided no detailed reasoning, bespeaks a process of reasoning that is highly unreasonable and that can only be described as what the learned authors of The Law of Refugee Status (at 138) call a “quest to disbelieve”.

149    Because of the approach taken by the Authority, the Minister’s contention that certain findings (such as those conceded to be in error and those which I have found are not) did not contribute in any significant way to the ultimate finding made by the Authority in relation to the central narrative cannot be accepted. As Mortimer J pointed out in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20]:

emphatic adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands.

150    In support of that proposition, her Honour cited the judgment of Lee J in SZFTQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45], the latter paragraph of which bears repeating:

To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

151    In the present case, I am confident that the unreasonable approach of the Authority infected all of its reasoning. Further, there is no doubt that the error is material in the relevant sense so as to give rise to jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [29]-[31] and [72]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2]. If the error had not been made – i.e., if the Authority had undertaken its task reasonably in accordance with its statutory mandate – it is obvious that the Authority might not have made the same (or similar) credibility findings and, in turn, it may have accepted the appellant’s central narrative.

Disposition

152    The appeal must be allowed. The orders of the primary judge should be set aside, in lieu of which it should be ordered that the decision of the Authority be set aside and that the matter be remitted to it, differently constituted, for redetermination according to law. The parties accepted that costs follow the result.

Associate:

Dated:    6 May 2022