Ground Three
54 The appellant submitted that the rejection of his explanation for the use of an Iranian passport was legally unreasonable because the adverse credibility assessments made by the Tribunal were "perfunctory, emphatic and unsustainable". In particular, the appellant criticised the Tribunal's conclusion that his explanation was "implausible in all respects" and defied "logic". For one thing, it was submitted that the Tribunal overlooked key evidence which showed that the appellant's use of the Iranian passport in 2012 was entirely rational. That material did not support the rejection of the appellant's credibility. The decision of the Full Court of this Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [26] was relied upon.
55 It was first said that the Tribunal had overlooked a claim that the appellant arranged to pay $22,000 to a certain Second Lieutenant in the Iranian passport police to amend the appellant's records by assigning him a legal date of departure and also by removing any "bar or blacklisting" connected with his name. It was contended that there is no reference to this part of the explanation in the reasons of the Tribunal. In the submission of the appellant, this explanation shows that issuing a passport to him in his own name was thus "not problematic". Because his Iranian records would be altered, he could safely enter and leave Iran. He also submitted that the Tribunal misunderstood his claim when at [20] it said that the arrangement involved removing his name from the records for the dates of his travel to Iran in 2012. This particular claim was, however, never made.
56 Pausing at this moment it may be observed that the appellant claims that if he is returned to Iran he will be "jailed, tortured or killed". Yet an essential feature of ground three is that he also claims that he was able to return to Iran in 2012 in perfect safety with an Iranian passport valid, it would appear, for five years, with his records having been amended to remove any bar or blacklisting.
57 The appellant then proceeded to take the Court to the evidence establishing each of the four steps which comprised his procurement of the Iranian passport in 2012. The first step was reporting to police that his original passport had been lost so as to trigger a reason for a replacement. The next step was to obtain a loan of $35,000 to fund the operation (only $22,000 was needed to bribe the passport office). The third step was to have the funds transferred to his father in Iran via a local jewellery shop, called Najaf Jewellers. The last step was to go online and apply for a new passport. We are quite satisfied that there was evidence before the Tribunal in support of all four steps. Indeed, some of this evidence would appear to have been accepted as authentic by the Tribunal. At [46], it said:
The Tribunal asked the [appellant] to explain the $[amount] deposited into his account on [date] October 2012. He said that it was received as a loan from [a] Bank. There were no loan documents and an entry in his bank account showed an entry listed as "[entry deleted]" but no source of those funds was listed. The Tribunal suggested that the information was insufficient to prove that it was a loan. The [appellant] said that he made repayments. The Tribunal put to the [appellant] that he had not provided any evidence of those repayments or of the payments totalling $[amount] to some other account. The Tribunal asked for evidence of those repayments and transactions. The adviser referred the Tribunal to page 12 of its submissions where it showed transfers between [several money exchange funds]. The Tribunal has no further concerns about these matters.
(Emphasis added.)
58 The appellant submitted that the finding of "implausibility" did not match other findings of the Tribunal (about the transfers of money to Iran). Additionally, it was unsafe because it did not weigh all the evidence (it ignored the claim about amending the passport records). The appellant relied upon the following passage from a decision of the Full Court of this Court in BMV16 v Minister for Home Affairs (2018) 261 FCR 476 at 497-498 [80]:
In determining whether a particular decision was legally unreasonable, it is necessary to:
(1) identify precisely the decision complained of;
(2) examine the terms, scope and purpose of the statutory power under which the decision was made; and
(3) evaluate the decision made to see "whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense".
59 Here, it was said that, having regard to the material before it, the Tribunal's decision was "inherently untenable, is unjust and lacks common sense": see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at 5-6 [11].
60 The Minister submitted that the finding about implausibility did not concern every claim made by the appellant. Rather, it went to the key proposition that the passport held by the appellant and used in 2012 was not false but genuine and for that purpose contained an accurate statement about how the appellant had originally left Iran in 2010 (legally on another passport). It followed that the appellant had therefore given false information to the Department. He submitted that the appellant's claim rose no higher than "emphatic disagreement" with the Tribunal's rejection of the appellant's explanation concerning his 2012 Iranian passport: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 518 [61].
61 The Minister also submitted that the Tribunal did not overlook or misunderstand the evidence concerning the claim that a passport was needed that would falsely show that the appellant had lawfully left Iran. He referred to the following passage from the reasons of the Tribunal at [32]:
Pressed to explain how it was that he was able to re-enter Iran on a passport issued in his name without being detained and made to complete his national service the [appellant] claimed that he paid a great deal of money to an agent in Iran to get a passport in Iran to show that he left Iran legally.
We also note the following at [31]:
In any case, the [appellant] said that one of his father's clients was an officer in the Passport Office and he arranged with him to organise a passport for him with an exit stamp dated in March 2010.
In our view, these passages show that the Tribunal understood the claim the appellant had made about the need to have a passport that showed he had left Iran lawfully. Ultimately, it did not believe that claim to be true. In rejecting it, in essence the Tribunal found that it was improbable that a person who contended that they had been an army deserter, had rescued a political prisoner, and had been critical of the Iranian regime, would procure a passport that was false in almost all respects, save that it used that person's actual name. In our view, and with respect, it was open to the Tribunal to be sceptical of the claim made. The Tribunal's incredulity was not illogical or irrational; it did not lack common sense. When then considered with the state of the material before it, in our view, the Tribunal was entitled to reach its conclusion. That included evidence that the 2012 passport was found to be free of "fraud tampering"; the appellant's responses, which were "convoluted and vague"; the lack of evidence concerning his mother's illness; the possibility that the monies borrowed were used for other purposes (there was no evidence, for example, of any amount being used to pay his mother's alleged medical expenses, as claimed); and the appellant's explanation concerning certain subpoenas which he said had been issued and which the Tribunal found to be "vague and irrelevant".
62 In our view, the Tribunal's course of fact finding on the appellant's central claim was not legally unreasonable. With respect to the appellant, in our view, ground three in substance invites the Court to reconsider the evidence his Counsel had identified in the appeal book, and asks the Court to form a different conclusion than that found below. In other words, ground three was an attempt to have the Court undertake impermissible merits review of findings of fact made by the Tribunal. Ground three is rejected.
63 In reaching this conclusion, we are mindful that the Tribunal did not expressly refer to the claim that the appellant's Iranian records would be amended by removing any bar or blacklisting connected to his real name (or, perhaps, misdescribed it by referring to the removal of his name from the records of his 2012 travels). But in our view, it was not obliged to refer to every step or integer in the appellant's explanation for the origin of his 2012 passport: Maioha at [62] per Flick J. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [46], French, Sackville and Hely JJ stated:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.
In our opinion, that specific aspect of his explanation could not have diminished the Tribunal's level of disbelief. That is especially because the Tribunal expressly put its concerns about the credibility of the explanation to the appellant to obtain his response. In that response, the appellant did not, it would appear, refer to his claim about amended records, but said, amongst other things, that there was no justice in Iran, and that using a false name would have been "too risky and the authorities would accuse him of being a spy or something". In our view, the Tribunal understood the nature of the claim made.
64 Nor does the mistaken reference to an "exit visa" compel a contrary conclusion. The mistake was made only once. The Tribunal in its reasons also referred to the 2012 passport as having an "exit stamp". It did this twice. Once again, in our view, these are immaterial mistakes. We are satisfied that the Tribunal correctly understood the claim that a passport needed to be procured in 2012 that showed that the appellant had lawfully left Iran in 2010.
65 For the foregoing reasons, the appeal should be dismissed with costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Davies, Moshinsky and Steward.