Federal Court of Australia

EIL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1097

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The first and second appellants are to pay the first respondent’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

MCELWAINE J

1    The appellants are a family unit of four Iranian nationals comprising a husband and wife and their two children, who arrived in Australia by boat on 30 November 2012. Thereafter on 12 January 2013, the first and second appellants were interviewed separately in irregular maritime arrival entry interviews.

2    On 29 April 2016, the appellants applied for Safe Haven Enterprise visas and on 14 November 2016, the first and second appellants attended a protection visa interview.

3    The appellants submitted various documents in support of their visa application, including untranslated documents said to be employment contracts between the first appellant and a local council that employed him as a driver. At the time of submission, the appellants explained that they could not provide translated versions of these documents because they lacked sufficient funds to do so.

4    A delegate of the Minister, on 27 February 2017, refused the grant of a protection visa on the grounds that she was not satisfied that the first appellant met the criteria at s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act) because he was a refugee or a person to whom Australia owed complementary protection obligations, and was therefore also not satisfied that the second to fourth appellants met the criteria at s 36(2)(b) or (c) of the Act as members of the first appellant’s family unit.

5    On 3 March 2017, the delegate’s decision was referred to the Immigration Assessment Authority (IAA) for review. Written submissions were filed by the appellants. The IAA affirmed the delegate’s decisions for reasons published on 30 August 2017 (IAAD or IAA decision). The appellants, on 28 September 2017, then applied for judicial review of the IAA decision to the Federal Circuit Court of Australia, as it then was. On 12 May 2022, the primary judge dismissed the review application: EIL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 347 (PJ).

6    On 22 June 2022, the appellants filed a notice of appeal to this Court. In summary the appellants contend that the primary judge erred by failing to find that the IAA:

(1)    Unreasonably failed to seek translations of the first appellant’s employment contracts, in circumstances where the IAA proposed to depart from a factual finding of the delegate in relation to those contracts; and

(2)    Misconceived the nature of the arrival interview and relied on omissions from the interview, where such misconceptions were legally unreasonable in the circumstances or constituted a constructive failure to review.

7    On 8 August 2023, I heard the appeal as a single judge exercising the appellate jurisdiction of the Court pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). Dr A McBeth appeared for the appellants and Mr M Hosking appeared for the Minister as first respondent. For the reasons that follow, I have concluded that the appeal must be dismissed.

How the appellants’ claims were assessed

8    The appellants advanced three claims which found their claim for protection. First, the first appellant claims to fear harm because, whilst employed as a crane driver by the local council, he says that he was forced to participate in the execution of another Kurd from the Arkowazi tribe, causing him to fear revenge from members of that tribe. Second, as ethnic Faili Kurds the appellants face persecution in Iran. Third, as returned asylum seekers from the West they were likely to suffer harm.

9    The delegate accepted that the appellants are Iranian citizens of Faili Kurdish ethnicity, however refused the grant of a visa as she did not accept the first appellant’s claims including in relation to his fear of harm relating to his participation in the execution. She also did not accept that the appellants would face serious harm because of their ethnicity or status as returned asylum seekers. The delegate outlined her reasons for not accepting the first appellant’s claim, including that the appellants did not mention it in their arrival interviews. Whilst the delegate accepted that the first appellant was employed by the council for the number of years claimed, as this was not in dispute, she afforded no weight to the untranslated contracts.

10    The delegate also specifically rejected the claim that the first appellant had been targeted by the Arkowazi tribe because of his role in the execution as this was not mentioned in the entry interviews and it was considered illogical that this claim would not have been disclosed to the Australian government, if genuine, as the primary reason for fleeing Iran and for seeking protection in Australia.

11    The delegate concluded that she was not satisfied that the appellants, as Faili Kurds and Iranian citizens were likely to face adverse treatment due to their race, noting that the appellants “have not reported any credible instances of been detained or harmed in Iran”. The delegate placed weight on the fact that the appellants did not state that they had ever been associated with or involved with any political groups or that they had suffered racial vilification whilst in Iran.

12    On the question of whether the appellants would be harmed on the basis of being failed asylum seekers returning from a Western country to Iran, the delegate noted that the appellants departed Iran lawfully by their own passports, there was no information which suggested that the appellants were of interest to the Iranian authorities and the appellants did not fit any of the known risk profiles, indicating that they may be subject to arbitrary arrest, detention or mistreatment if returned.

13    The IAA on review, in respect of each of these claims found and reasoned as follows:

(1)    The IAA rejected the first appellant’s claim that he was forced to participate in the execution of a Kurdish man and that he faced threats of harm by family members seeking revenge. In particular, the IAA noted the first and second appellants’ failure to mention the execution in their arrival interview when asked about their “main reason” for coming to Australia and placed weight on inconsistencies in evidence regarding the threats and the appellants’ travel;

(2)    The IAA also gave no weight to the untranslated employment contracts, finding that the council was not the first appellant’s sole source of income or his only employment by reason of his failure to mention the council in his employment history and his “somewhat confusing” evidence regarding his relationship with the council;

(3)    The IAA accepted that Kurds do suffer discrimination in Iran, but found that such discrimination was not uniform and is rarely coupled with community-level violence. The appellants were therefore unlikely to suffer significant harassment or ill-treatment or other harm that might be considered serious by reason of their race;

(4)    The second appellant, as a Faili Kurdish woman, may be subject to discrimination, however, the IAA was not satisfied that there is a real risk of her suffering significant harm on this basis; and

(5)    There is no real risk that the appellants would suffer significant harm from the Iranian authorities upon their return as their personal circumstances are such that they would not attract adverse attention from the authorities.

14    For these reasons the IAA concluded that the appellants did not meet the definition of a refugee at s 5H(1) of the Act so as to engage s 36(2)(a). Further, the IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Iran, there is a real risk that the appellants will suffer significant harm within the meaning of s 36(2)(aa) of the Act.

The Federal Circuit and Family Court Review

15    Three review grounds were pressed, but only grounds 1 and 2 are now relevant. Those grounds were:

(1)    The failure of the IAA to seek a translation of the first applicant's employment contracts was an unreasonable failure to exercise its power under s 473DC of the Act, or alternatively, an unreasonable conduct of the review under s 473CC.

Particulars

(a)    The delegate had accepted the fact that the first applicant had been employed by the local council as a truck and crane driver. That fact was not in dispute following the delegate's decision.

(b)    The IAA had before it employment contracts written in Farsi and was aware that the applicants had not provided English translations due to a lack of funds.

(c)    In circumstances where the IAA proposed to depart from the delegate's factual finding regarding the first applicant's employment, it was unreasonable for the IAA not to request English translations of the contracts before making a decision.

(2)    The IAA misconceived the nature of an arrival interview and its reliance on omissions from the arrival interview was unreasonable or constituted a constructive failure to review.

Particulars

(a)    The IAA relied on the failure of the first and second applicants to mention the first applicant's involvement in an execution in their arrival interviews as a basis for finding that claim to be fabricated.

(b)    The IAA failed to have regard to the fact that both applicants appropriately answered the specific question they were asked.

(c)    The IAA further misunderstood the proper role of an arrival interview in the context of the overall protection visa process.

16    The primary judge rejected ground 1 for several reasons. First, the issue before the IAA was not the fact of employment of the first appellant by the council, but whether he had been involved in the execution of the condemned man and in consequence had been threatened by family members of the Arkowazi tribe: PJ [16] and [21]. The fact of employment was simply a matter relevant to assessment of the harm claim arising from participation in the execution. Second, factually the IAA rejected the first appellant’s claim that he was pursued and threatened by family members because he participated in the execution: PJ [19]. Third, the IAA rejected the first appellant’s harm claim for a number of reasons, and in doing so the first appellant’s employment by the council was only one of the matters which led to that conclusion: PJ [21]. Importantly, the primary judge at PJ [22] listed the other matters being:

(a)    the failure of the Applicants to mention the matter during their arrival interview: reasons of the Authority at [33];

(b)    various inconsistencies in the evidence given by the First Applicant as to the timing of the purported execution, and what took place thereafter, as well as inconsistencies between the accounts given by the First Applicant and the Second Applicant: reasons of the Authority at [34];

(c)    that the First Applicant would have had a choice as to whether or not he took part in the execution: reasons of the Authority at [35];

(d)    the ‘unconvincing’ response of the First Applicant as to why he did not wear a balaclava during the purported execution: reasons of the Authority at [36].

17    Fourth, neither the delegate nor the IAA gave weight to the untranslated employment contract: PJ [18]. And fifth, the appellants had the benefit of representation upon the review by the IAA, and were on notice that the untranslated document had not been afforded any weight by the delegate: PJ [24].

18    As to the second ground, the primary judge rejected it for the following reasons:

(1)    Exercising due caution, a decision-maker is entitled to rely on an omission in an entry interview: PJ [33];

(2)    The IAA was cognisant of the limitations that attend the arrival interview process: PJ [34];

(3)    Unlike the decision in Minister for Home Affairs v AYJ17 [2019] FCA 591 (AYJ17) (Moshinsky J), the delegate was aware, noted and considered the failure to mention the execution claim as the reason for leaving Iran in the arrival interview, there were two adult applicants each of whom failed to mention the matter when separately interviewed and nor did they mention it when questioned about impediments to return to Iran: PJ [35];

(4)    In any event, the IAA relied on a range of matters to found its conclusion that the execution claim was a fabrication: PJ [36]-[37].

19    The primary judge was not therefore satisfied that the IAA either misconceived the nature of the arrival interview or that its reliance in omissions was legally unreasonable: PJ [37].

The appeal to this Court

20    The grounds simply and broadly contend that the primary judge erred in failing to find conformably with the grounds pressed before him. Unhelpfully specific error by the primary judge is not identified. The grounds provide:

1.    The primary judge erred in failing to find that the IAA unreasonably failed to exercise its power under s 473DC of the Migration Act 1958 (‘the Act’), or alternatively, acted unreasonably in the conduct of the review under s 473CC of the Act, by failing to seek a translation of the first appellant’s employment contracts.

Particulars

(a)    The delegate had accepted the fact that the first appellant had been employed by the local council as a truck and crane driver. That fact was not in dispute following the delegate’s decision.

(b)    The IAA had before it employment contracts written in Farsi and was aware that the appellants had not provided English translations due to a lack of funds.

(c)    In circumstances where the IAA proposed to depart from the delegate’s factual finding regarding the first appellant’s employment, it was unreasonable for the IAA not to advise the appellants that the fact of the first appellant’s employment was in issue and to request English translations of the contracts before making a decision.

2.    The primary judge erred in failing to find that the IAA’s misconception of the arrival interview evidence and its reliance on omissions from the arrival interviews was unreasonable in the circumstances or constituted a constructive failure to review.

Particulars

(a)    The IAA relied on the failure of the first and second appellants to mention the first appellant’s involvement in an execution in their arrival interviews as a basis for finding that claim to be fabricated.

(b)    The IAA failed to have regard to the fact that both appellants appropriately answered the specific question they were asked.

(c)    The IAA further misunderstood the proper role of an arrival interview in the context of the overall protection visa process.

Ground 1

21    The submissions in support of this ground focus on what the delegate and the IAA did, particularly that the appellants did not address the contract translation issue before the IAA because the delegate accepted, despite no translation, that the fact of employment was not in issue. Accepting that it was open to the IAA to make a different finding of fact on this issue, the crux of the submission is that it was legally unreasonable for the IAA to reach the contrary factual conclusion without advising that this fact was in issue and without inviting the appellants to provide a translation.

22    In contrast, the Minister submits that on review, the IAA was tasked with considering the claims afresh and was required to itself determine the protection claims: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (Plaintiff M174) at [17] (Gageler, Keane and Nettle JJ). The IAA was not bound by the delegate’s findings and in particular was not obliged to notify the appellants that it was considering a different course adverse to them or to advise that reservations were held about aspects of their claims: BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; 260 FCR 116 at [69]-[72] (Kenny, McKerracher and White JJ).

23    I am not satisfied that the primary judge erred as contended by the appellants. The function of the IAA is to review a “fast track reviewable decision” referred to it: s 473CC of the Act. The conduct of the review is constrained by s 473DA whereby Div 3 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule” in relation to review by the IAA. The review is conducted by considering the material referred to the IAA “without accepting or requesting new information” and “without interviewing the referred applicant.” However, additional information may be sought as provided at s 473DC:

Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

24    Before new information may be considered, the IAA must first be satisfied that the exceptional circumstances set out at s 473DD are met. The IAA did not exercise the power to obtain new information in this case. The appellants argue that it was legally unreasonable not to have done so. That argument is open to them: Plaintiff M174 at [21]. It requires analysis of the statutory context (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11]-[12] (Allsop CJ)) and careful attention to the facts (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [84] (Nettle and Gordon JJ)).

25    I have outlined the statutory scheme. Whether a failure to exercise the s 473DC power may amount to legal unreasonableness was addressed by the Full Court in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 (Bromberg, Davies and O’Bryan JJ). One issue before the Court concerned a claim that the decision of the IAA was legally unreasonable, when, contrary to the decision of the delegate and upon the same material, it concluded that the appellant was not a stateless person. The Court rejected that submission, but allowed the appeal on other grounds. Relevantly for present purposes the Court at [59] endorsed a summary of the relevant principles distilled by O’Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 (BLS17) at [31] subject to the caveat that each case turns on its own facts. In part, O’Bryan J observed:

(b)    As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].

(c)    However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was “necessary in order to complete the review”: DGZ16 at [70].

(d)    Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant's demeanour at the interview and the delegate's acceptance of certain claims by the applicant was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).

26    In rejecting this component of the unreasonableness submission, the Court in BLS17 concluded at [60] that the question of statelessness was considered by the delegate and the fact that the IAA came to a different conclusion on the same information did not trigger an obligation to seek further information pursuant to the statutory scheme. The failure to do so was not therefore legally unreasonable.

27    Putting the case of the present appellants at its highest, despite the fact that the delegate gave no weight to the untranslated employment agreement, it was accepted that the first appellant was employed by the council as a driver for a number of years as claimed by him because his past employment was not in dispute. Contrary to that common position, the IAA noted the first appellant’s claim that he was employed by the council on a temporary contract and that he had documents to prove that fact which “needed translating”. The IAA by reference to the employment history recorded in the protection visa application noted that the first appellant between 2003 and 2012 claimed to have been employed in the construction industry for numerous companies including two crane companies as an independent contractor. The employment history did not mention any employment with the council.

28    The IAA further noted that during his protection visa interview, the first appellant had stated that he was employed by a company contracted to the council, but was uncertain of its name. Despite that arrangement, the first appellant contended that the council paid his income directly to his bank account. The failure to provide a translation of the temporary employment contract with the council resulted in no weight being given to the document. Ultimately the IAA was “not satisfied his sole source of income or his only job during this period was with” the council.

29    The absence of proof of the first appellant’s employment with the council was one matter relied upon by the IAA in reaching the conclusion that the first appellant fabricated his involvement in the execution and subsequently received threats from the Arkowazi tribe. What is apparent from a thorough reading of the IAA decision is that there were other more substantial reasons for rejection of this claim being:

(1)    If plausible, this incident would have been disclosed as the main reason why the appellants left Iran at the arrival interview. Whilst it was accepted that the appellants “would both feel shame for taking part in an execution”, the IAA was not convinced that this would have prevented them from declaring it as the main reason for leaving Iran. It was noted that the appellants were informed upon commencement of the arrival interview that it was their opportunity to provide any reasons why they should not be removed from Australia, and that they were expected to give truthful answers;

(2)    When the execution took place was uncertain, compounded by inconsistencies in the first appellant’s evidence as to when, following the execution, he travelled to Tehran by bus, whether he had travelled to Ahwaz and whether he returned to his home city again;

(3)    The IAA was not convinced that the first appellant lacked a choice to take part in the execution, particularly in the knowledge that the Arkowazi tribe by reputation would seek revenge. His work history disclosed that he had several employers, not including the council, which supported the conclusion that the appellants left Iran for economic reasons; and

(4)    The first appellant’s explanation as to why he did not wear a balaclava during the execution to conceal his identity was found to be unconvincing.

30    On that reasoning, the appellants have simply not established the high threshold that must be met in order to succeed upon their unreasonableness contention, the principles for which were recently summarised by the Full Court in King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 (Anderson, Feutrill and Raper JJ) at [53]-[55]:

Review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. ‘[T]he Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.’: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [92].

Accepting that statutory discretions confer an ‘area of decisional freedom’ a decision may be legally unreasonable if it is shown ‘to be arbitrary or capricious or to abandon common sense’, or if it ‘lacks an evident and intelligible justification’: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [76]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]-[13] (per Allsop CJ).

‘Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same conclusion on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision is one to which the decision maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.’: SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]. However, ‘to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”’: DAO16 at [30(5)] (and the authorities cited therein).

31    The primary judge did not in my view err in his reasoning that the primary claim advanced by the appellants was involvement in the execution and the subsequent receipt of threats and in that context the employment claim with the council “was simply one of a number of matters relevant to assessing this claim the harm”: PJ [21]-[22]. The IAA was entitled to reach a different conclusion to the delegate on the council employment question without exercising the power at s 473DC of the Act and the appellants have failed to demonstrate why it was legally unreasonable not to do so.

32    Ground 1 therefore fails.

Ground 2

33    The gravamen of this ground as argued is that despite the IAA noting the limited purpose of an arrival interview, what was overlooked is that the interviewer specifically asked each of the adult appellants for only one reason for leaving Iran and this readily explains why the execution incident was not mentioned. The questions and answers in issue occurred towards the end of separate interviews each of which lasted for approximately one hour and 20 minutes, in the case of the first appellant and one hour and 14 minutes in the case of the second appellant. Dealing with the first appellant, the questions and answers were:

Q. Very briefly could you tell me what the main reason, tell me one reason why you left Iran for to [sic] make this journey?

A. Couldn’t find a proper job, we were Kurdish minority in that area. No matter how long we had been living in that area we were still considered Arabs, so that – being minority made life really hard, so we started – we decided to come over so our children wouldn’t suffer from the same issues.

Q. Was there any one incident that made you leave or was it just a general (indistinct)?

A. Not a single incident but a general (indistinct) the fact that we were under pressure. I wasn’t a lazy person, I was always working hard but that was never enough to cover all the costs and I knew my children would have a good future here, so we had to do the journey.

34    No other question, there were 259 in all, inquired about the first appellant’s protection claims. The second appellant was asked 172 questions, only one of which was relevant to the reason for leaving:

Q. Okay, very briefly tell me what the main reason was that you and your children left Iran (indistinct).

A. (Indistinct) was difficult living in Iran (indistinct) government wouldn’t care about people that’s minority – like Kurdish people and during the post-war era we didn’t grow as much as other cities or other areas and (indistinct) area there is only (indistinct) even more restrict. I remember I was or at that year 4 or year five I had to (indistinct) and it last for 3 days and we went. We didn’t want our children to grow up in that – such environment.

35    The complaint is that the first and second appellants “responded in exactly the way the interviewer asked them to. They nominated just one of the multiple reasons they sought protection in Australia, in very brief terms, in the middle of an interview that was focused on other topics.” There was other evidence, in particular the detail provided by the first and second appellants in their protection visa claims, to the effect that each perceived discrimination as Faili Kurds was the number one issue “regardless of whether an observer might have considered the fear of harm from tribal revenge related to the execution to be the more pressing issue”, which submission explains why the execution claim was not nominated as the one, or the main, reason for leaving Iran.

36    Viewed in that way, Dr McBeth submits that the IAA “displayed the same misconception about the nature and purpose of an arrival interview” as identified in AYJ17 where Moshinsky J upheld a claim of illogicality or irrationality arising from matters not mentioned in an arrival interview. The particular passages from his Honour’s judgment that are emphasised are [41]-[42] where in part his Honour said:

First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent’s claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the “Important Information” set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.

Secondly, the respondent’s response to question 21 (which asked, “Why did you leave your country of nationality (country of residence)?”) was: “I was an officer with Police in Iraq + I was threatened by religious groups.” In my view, this was a high-level summary of the respondent’s claims and was capable of encompassing the respondent’s claim regarding his brother’s death. As set out in the delegate’s decision, the respondent claimed that he was the real target of the bombing due to his employment as a police officer and, in particular, that he was a Sunni working in that field. In light of this, the respondent’s response to question 21 was capable of encompassing the claim regarding the brother’s death. In addition, I note that the respondent’s response to question 21 in the arrival interview was repeated in the entry interview, where it served as the introductory sentence to a longer explanation of why he left Iraq.

37    In this case, the precise submission is that the approach of the IAA was irrational having regard to the purpose of an arrival interview because each answer was “directly shaped by and responsive to the questions” asked. Accordingly, the IAA proceeded irrationally or unreasonably because its finding “could not rationally be drawn” from this material.

38    In contrast, the Minister submits that by paying close attention to the facts, it is apparent that the IAA expressly acknowledged the limited purpose of arrival interviews, was aware that each of the first and second appellants had been asked questions about “the main reason” for leaving Iran, rather than all of the reasons, there were other matters that the IAA relied upon in concluding that the execution claim was a fabrication and that ultimately, the appellants’ case is no more than a complaint about the weight that the IAA gave to aspects of the material before it.

39    I am not satisfied that the primary judge erred in his conclusion that the IAA did not misconceive the arrival interview evidence or that reliance on the omission to mention the execution claim was legally unreasonable or otherwise amounted to a constructive failure to review. Quite properly the appellants do not submit that there is some general principle to the effect that legal unreasonableness will likely flow from a failure to mention a matter in an arrival interview. The IAA was certainly aware of the limitations of arrival interviews (MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436 at [56] (North, Bromberg and Mortimer JJ)), as is clear from the express acknowledgement of its “limited” purpose at IAAD [28].

40    It does not follow from the fact that the questions were framed by “the main reason”, “one reason” or “one incident”, that the IAA misconceived the questions and answers when one has regard to all of the material before the IAA. The delegate interviewed the first and second appellants on 14 November 2016. The delegate at that time specifically raised with the first and second appellants that she “might consider it concerning that they did not mention this claim in their individual entry interviews.” The delegate’s reasons include the following:

During the PV interview, I raised two additional concerns with [the first appellant]. Firstly, I instructed him that I considered it was a rather far-fetched claim that the deceased man’s family and the Arkowazi tribe would blame him for the man’s execution, and target him on a continued basis. The applicant had reported the man was sentenced for the rape and murder of an eight year old child by the Iranian judiciary. I advised the applicant that it appeared to me that he had nothing to do with the man’s conviction and sentence by the Iranian authorities. I instructed him that it therefore does not sound reasonable to me; the man’s family and tribe would blame him and continue to target him for the execution.

41    Although it would have been preferable for the delegate to say in the second sentence that she “informed” rather than instructed the first appellant, a fair reading of this paragraph is that it summarises the concern then held by the delegate.

42    Thereafter, on 29 November 2016, the appellants’ representative (a solicitor and registered migration agent) provided the delegate with a detailed 55 paragraph submission and specifically addressed the question of concern then held about apparent inconsistencies between the information in the arrival interviews and each application for a protection visa. The representative explained that the behaviour of the appellants is consistent with persons who have been subjected to torture and trauma, that each were most likely concerned about providing this information to authorities on first arriving in Australia and that “there was a considerable level of shame and guilt of his participation in the event and it is plausible that they did not wish to provide all the details of leaving Iran to the Department”. The submission continues to the effect that with the subsequent benefit of legal representation, the first and second appellants were able to “comprehend the importance of providing all of their claims for protection and be in a position to trust Australian authorities”.

43    A further submission was made on behalf of the appellants to the IAA by their solicitor on 26 March 2017. This document focuses upon the execution as the main reason for the family departing Iran. It responds to the findings of the delegate that the claim lacked credibility because it was not mentioned in the arrival interviews and repeats the explanation that the first and second appellants did not disclose this incident because of their deep shame and embarrassment about the first appellant’s participation, and their failure to do so is consistent with the behaviour of persons who have been subject to torture and trauma. The limited purpose of the arrival interviews was also mentioned.

44    The IAA took account of each of these submissions but was unpersuaded, explaining why at IAAD [28]:

The applicant husband’s representative stated in a post interview submission of 29 November 2016 that the applicants’ behaviour in not revealing the information to the authorities on first arriving in Australia was ‘consistent with persons who have been subject to torture and trauma in the past.’ There was also a considerable level of shame and guilt because of his participation in the event. She also referred to the Department’s Procedures Advice Manual in relation to Asylum Claims and assessing credibility and that ‘entry interviews are not for the purpose of obtaining details of asylum claims and investigating those claims’. Whilst I acknowledge the purpose of the arrival interview is more limited, I consider a request to provide the reason for departing one’s country does not equate to ‘detail’ or an ‘investigation’.

45    The IAA also reasoned at IAAD [33] that:

In analysis of the evidence before me I am not satisfied that the applicant husband did in fact take part in the execution of a member of the Arkowazi tribe and was subsequently threatened by his family. Firstly, whilst I find it plausible the applicants would both feel shame for taking part in an execution especially that of a fellow Kurd I am not convinced this would prevent them from declaring it as the main reason they left Iran. As they both said they knew Australia respected human rights. They were both told at the beginning of the arrival interview that it was their opportunity to provide any reasons why they should not be removed from Australia. They were expected to give true and correct answers to the questions asked and they should understand that if the information they gave at any future interview was different from that they told now, this could raise doubts about the reliability of what they said. They were also told the Department of Immigration was careful to protect the privacy of all information given at information. Both applicants confirmed they understood what was being said and that they understood the interpreter. I understand they may have been afraid of the news reaching other asylum seekers in immigration detention; however, without specifying the execution they could have claimed to fear the tribe itself without elaborating.

46    Finally, as I have noted, the IAA did not base the decision solely on the failure to articulate the claims in the arrival interviews. When all of this material is considered, it is clear that it was open to the IAA to conclude that the claims were not plausible, despite the purpose of and caution with which the arrival interview must be treated. This reasoning does not demonstrate that the interview evidence was misconceived or that the particular reliance which was placed upon it was unreasonable or amounted to a constructive failure to review. What occurred in this case is that the appellants, despite on their evidence having a very significant reason for fleeing Iran, failed to disclose it which was a material factor that the IAA recognised in assessing the credibility of the claims, when later made. The implausibility conclusion was not legally unreasonable by application of the standard required: King at [52]-[53].

47    The primary judge reasoned similarly at PJ [34]-[37], and no error is demonstrated. This ground fails.

Result

48    For these reasons the appeal must be dismissed. I was informed by counsel that there is no reason why costs should not follow the event. I order as follows:

1.    The appeal is dismissed.

2.    The first and second appellants are to pay the first respondent’s costs of the appeal.

Associate:

Dated:    15 September 2023

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