AYG20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1887

1. This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicants temporary protection visas. The second and third applicants are the first applicant's wife and adult child respectively. The claims of the second and third applicants were dependent on the claims of the first applicant.

1. In their written submissions filed on 20 May 2025, the applicants provided the background to this matter, which the Minister agreed was accurate. It is as follows:
   1. The applicant, his wife and son, arrived at Christmas Island by boat on 14 July 2013 without a visa (CB 64, 136 [2]). As a result, the applicants fell within the definition of a "fast track applicant" within the meaning of s 5(1) of the Act.
   2. On 10 August 2013, the applicant participated in an entry interview (CB 1). The applicant gave his identity as Mr [X] and his citizenship as Iran (CB 3).
   3. On 19 March 2017, the applicant made a statutory declaration in which he claimed he was a Hazara by ethnicity and an Afghan citizen who had fled Afghanistan in 1979 (CB 136 [1], 137 [6]). In summary, the applicant claimed a well-founded fear of persecution:

(1) in Iran due to his Hazara ethnicity (including his distinct facial features) (CB 136 [1]; CB 138 [13]); living unlawfully in Iran using a deceased person's identity (CB 143 [36]); because he committed the offences of using a deceased person's identity and not obtaining permission to marry his wife (CB 143 [35]) [36]); verbal abuse, humiliation intimidation and harassment at the hands of Iranian authorities and Iranian society at large (CB 138 [13]).

(2) in Afghanistan due to his Hazara ethnicity (CB 142 [34]); because he does not believe in Islam (CB 142 [33]); as an Afghan who grew up in Iran, adopted the Iranian accent, culture and way of life, and has no cultural ties with Afghan society (CB 143 [33], 145 [39]); because of the long-standing feud between Afghanis and Iranians (CB 143 [33]).

1. On 20 April 2017, the applicants submitted applications for Temporary Protection Visas. The applicant's wife and son relied on the applicant's claims.

The delegate's decision

1. On 17 December 2019, a delegate of the Minister refused to grant the applicant a protection visa (CB 217).

The Authority's decision

1. On 18 January 2020, the applicant provided a written submission from his agent (CB 257).
2. Relevantly, the Authority was satisfied the applicant is a national of Iran and his identification documents were genuine documents (CB 269 [11]) and was not satisfied the applicant is an Afghan (CB 279 [48]).

1. Basically, the applicant said that his Iranian identity was fake. He said that he was an Afghan citizen, who went to Iran as a teenager with his mother and sister in early 1979. (The Russian-Afghan war began in December 1979). He said that, in 1981 (by calculation from the applicant's claims), his mother bought for him the birth certificate of a deceased Iranian person, and assumed his identity. The deceased person's name was [X], which the applicant gave as his name when he arrived on Christmas Island. It was only four years later that he claimed to be an Afghan citizen.

1. In his written submissions, the Minister provided the following summary of the Authority's reasons for decision:
   1. The Authority was satisfied that the first applicant (the applicant) was a national of Iran and the Iranian identity documents he provided were genuine documents that had been issued in his true identity (CB 269 [11]).
   2. The Authority found that country information before it did not suggest that prior to 1979 in Kabul, the Mujahedeen were knocking door to door to forcibly recruit fighters, as claimed by the applicant, and found that this was not a credible reason as to why his two older brothers purportedly relocated to Iran prior to 1979. The Authority also found that country information did not suggest that in early 1979, ordinary Afghan citizens were selling their belongings and [fleeing] Kabul as the applicant claimed his mother did. The Authority found that the applicant's evidence of their travel to Iran did not contain the level of detail expected from someone who did so at age 13 or 14, even having regard to the passage of time (CB 270 [17]).
   3. The Authority found that the applicant's evidence regarding his purported identity as an Afghan Hazara was vague and appeared evasive. The Authority found it difficult to accept that he could not recall any substantive details regarding the culture he was born into given his evidence that he left Afghanistan at age 13 or 14 (CB 271 [18]).
   4. The Authority found that it was not impossible that their landlord in Tehran may have offered the applicant's mother his deceased son's birth certificate. However, the Authority found it farfetched that the applicant's mother would succeed in finding three deceased persons, born in the same years as herself, the applicant and his sister, whose families had not had the birth certificates nullified and were willing to sell them to unlawful Afghan migrants. Further, the Authority found it to be lacking in credibility that the applicant and his family could live in the same household, bearing an entirely different name, without the situation coming to anyone's attention. The Authority found it difficult to accept that the applicant would retain his Afghan taskera for more than six years after his arrival in Iran and after he had assumed a fraudulent identity, given the risks possession of such a document entailed (CB 271 [19]).
   5. The Authority had serious concerns regarding the credibility of the applicant's claims in relation to his interactions with the Iranian authorities. The Authority found that it was difficult to accept that if the applicant's physical appearance as an Afghan frequently led the authorities to question his status in Iran, his wife would have been able to present his birth certificate with his photo to obtain birth certificates for their first three children without incident (CB 271 [20]).
   6. The Authority found that it was farfetched that corrupt government officials would advise the applicant to pay a bribe and leave the country as they did not want to be held accountable, as there was no credible reason why the applicant's departure would prevent those officials being investigated. Based on the applicant's evidence at the TPV interview, the Authority was satisfied that the passports for the applicant and his family were applied for and processed in a routine manner, and the applicant and his family left Iran without incident (CB 272 [22]).
   7. The Authority accepted that there were high levels of official corruption in Iran but found that the applicant's evidence regarding the number of times he purportedly paid bribes to officials to overlook his use of the fraudulent identity was farfetched and at odds with his stated employment history (CB 272 [23]). The Authority also found it difficult to accept that the applicant would have been able to avoid detection while being treated in the public health system for back surgery in 2009 (CB 272 [24]).
   8. The Authority considered the applicant's evidence that he and his adult daughter explained their situation at the Iranian Embassy in Canberra in May 2019 and the embassy took the birth certificate and advised it would be returned to Iran for cancellation with a transcript of the interview they conducted. The Authority noted that more than eight months had passed since the applicant relinquished the documents and there was no evidence that the Iranian authorities had ever followed the matter up. Further, the Authority noted that one of the applicant's daughters still lived in Iran, and there was no evidence that the authorities made contact with her regarding these matters. On the totality of the evidence before it, the Authority did not accept that the Iranian authorities had any interest in the applicant's claims to have unlawfully acquired [X's] identity (CB 273 [26]-[27]).
   9. The Authority did not accept that the applicant's friend, Mr [Y], would be in a position to verify information about the origins of the applicant's father and grandfather given the applicant claimed that Mr [Y] was about ten years younger than him (CB 274 [29]). Further, the Authority found that a document sent by the applicant's representative contained details of two witnesses/guarantors, which directly undermined the applicant's evidence to the delegate that the Afghan authorities had only required he produce one witness/guarantor (CB 274 [30]). Based on the applicant's evidence that he and his sister had not been in contact since he left Afghanistan and he did not meet her son until after his arrival in Australia, the Authority also did not accept that the second witness, the applicant's nephew, was in a position to verify that he knew the applicant in Afghanistan. On this basis, the Authority rejected the submission to the Authority that the delegate ignored evidence from the two witnesses who attested to the applicant's Afghan identity and found that the reliability of that evidence was highly questionable and placed very little weight on it (CB 274-275 [31]).
   10. The Authority found that the applicant's decision to use [X's] birth date for his taskera application was lacking in credibility given his evidence that he wanted to start living his real identity and speaking the truth after more than 35 years of pretending to be someone else (CB 275 [32]).
   11. The Authority placed little weight on a certificate from the Department for Statistics and Registration in Afghanistan as evidence of the applicant's identity because there was no country information which indicated such a document was valid for identity purposes in Afghanistan (CB 275 [33]).
   12. Based on evidence on the website of the Embassy of Afghanistan in Canberra that the embassy did not have the authority to issue taskeras, the Authority had serious concerns that the applicant did not obtain what he claimed was his taskera through the embassy. The Authority noted it was not prepared to seek verification of the genuineness of the taskera from the embassy directly given the unambiguous wording on the website and as no reason was given as to why the applicant could not seek such verification himself (CB 275 [34]-[35]).
   13. The Authority found that the delegate made her concerns about the provenance of the Afghan identity documents clear to the applicant during the TPV interview and in writing and considered his lack of direct response to those concerns cast further doubt on his credibility. The Authority was not satisfied that the certificate or the taskera were genuine documents (CB 275-276 [36]).
   14. The Authority had regard to the evidence of the applicant, the second applicant, and their two adult children had all declared the applicant to be an Iranian citizen during their respective entry interviews. The Authority found that the applicant's explanations were entirely lacking in credibility given he claimed that his family travelled to Australia to seek protection because he had lived with an assumed identity for 35 years (CB 276-277 [40]-[41]).
   15. The Authority accepted that the applicant and [his sister, AB] were full biological siblings. The Authority noted that the applicant had not provided any other evidence of [AB's] citizenship, such as a tazkera, and placed little weight on the Document for Travel to Australia [AB] used to enter Australia in light of all the other known documentary discrepancies. The Authority noted that [AB] may have acquired Afghan citizenship through other means, such as marriage (CB 278 [46]-[47]).
   16. On the information before it, the Authority was not satisfied that the applicant was an Afghan who unlawfully acquired Iranian citizenship when his mother purchased the identity of a deceased Iranian for him (CB 279 [48]).
   17. The Authority accepted that Iranian citizens of Afghan appearance, such as the applicant, and their family members, may face discrimination in Iran (CB 279 [50]). The Authority found that most of the instances [of] discrimination the applicant had claimed to have personally faced were tied to the Iranian authorities' suspicion about his purported fraudulent identity and did not accept such incidents occurred. The Authority found that there was no credible evidence to support, and did not accept, that the applicant or his family had been prevented from accessing any type of social service in Iran on account of the applicant's Afghan appearance. The Authority was satisfied that the applicants faced a real chance of some discrimination on account of the applicant's Afghan appearance (CB 279 [51]).
   18. The Authority accepted that the applicant and third applicant were baptised in August 2017 and that they attended church on this, and [possibly] other, occasions. The Authority was not satisfied that the applicant had genuinely converted to Christianity or that he would seek to practice Christianity [or] visit a church upon return because he was not genuinely committed to being a Christian. In relation to the third applicant, the Authority found that there was no indication that he had any sort of ongoing interest in Christianity or that he attended church regularly. The Authority was not satisfied that the third applicant would seek to practice Christianity on return and based on country information was not satisfied that he faced harm in Iran due to his baptism and church attendance in Australia (CB 280[54]-[55]).
   19. The Authority accepted that the applicant and third applicant did not follow Shia Islam. Having regard to country information, and given the applicant had not claimed to have ever come to the adverse attention of the authorities for his lack of religious adherence in Iran, the Authority was not satisfied that the applicants faced a real chance of being targeted upon return because the applicant and third applicant did not follow Shia Islam (CB 281 [56]).
   20. The Authority was satisfied that the applicants departed Iran legally using their genuine Iranian passports and found that it was possible that the authorities may become aware that they had been living in Australia and had sought asylum. The Authorities were satisfied that if the applicants were to return, it would be on a voluntary basis (CB 281 [57]-[58]). Based on country information and the applicants' profiles, the Authority was not satisfied that the applicants would attract the adverse attention of the Iranian authorities or that they faced a real chance of harm for having sought asylum in a western country (CB 282 [60]).
   21. The Authority was not satisfied that the applicants faced a real chance of harm because of the matter of the third applicant's birth certificate, the applicant's interactions with Iranian authorities in Australia, the third applicant's baptism and church attendance, or the applicants' potential status as returning asylum seekers from Australia. The Authority found that the applicants did not have a well-founded fear of persecution and did not meet s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) (CB 282 [61]-[62]).
   22. The Authority found that any discrimination the applicants may face because the applicant is a person of Afghan appearance would not amount to significant harm (CB 282 [65]). The Authority was not satisfied that there was a real risk that the Iranian authorities would be aware of the applicant and third applicant's church attendance or baptism in Australia and based on country information was not satisfied that the applicants faced a real risk of significant harm for this reason (CB 283 [66]). Based on its anterior findings, the Authority was otherwise not satisfied that the applicants faced a real risk of significant harm and found that they did not meet s 36(2)(aa) of the Act (CB 283 [67]-[68]).

(a) their amended application filed on 20 May 2025;

(b) their submissions filed on 20 May 2025;

(c) their further submissions filed on 20 June 2025;

(d) the affidavit sworn or affirmed by Natalie Young on 20 May 2025;

(e) the joint bundle of authorities filed on 3 June 2025;

(f) the affidavit affirmed by Samantha Liddy on 10 June 2025;

(g) the affidavit affirmed by Natalie Young on 20 June 2025; and

(h) the court book filed on 23 June 2021.

(a) his response filed on 19 March 2020;

(b) his submissions filed on 3 June 2025;

(c) the joint bundle of authorities filed on 3 June 2025;

(d) the affidavit affirmed by Samantha Liddy on 10 June 2025; and

(e) the court book filed on 23 June 2021.

1. The first ground of review in the application filed on 5 March 2020 and amended on 20 May 2025 ("the application") is:

The Immigration Assessment Authority constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider a claim/an integer of the claim or by failing to evaluate the significance of alleged "discrepancies" in accordance with the principles in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 and ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271.

1. At the hearing, the applicants advised the court that they did not press paragraphs 27 and 28 of their written submissions filed on 20 May 2025.
2. The applicants' written submissions made it clear that this ground had two components, as follows:

(a) failure to consider a claim; and

(b) failure to deal with alleged discrepancies in accordance with AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; (2018) 361 ALR 227; [2018] FCAFC 133 and ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38.

1. The particular claims that the applicants said the Authority failed to consider were the claims that:

(a) AB and the first applicant were full biological siblings; and

(b) AB was born in Afghanistan and was an Afghan Hazara; therefore

(c) the first applicant was a citizen of Afghanistan.

1. The Authority dealt with the issues concerning the first applicant's sister in paragraphs 43 to 48 of its reasons for decision, which are as follows:
   1. During the TPV interview the delegate asked the applicant about his sister, [AB], whom he claims he last had contact with prior to his departure from Afghanistan as a teenager. The applicant explained that after he and his family settled in the Australian community, they found out through word of mouth that [AB] was also living here with her family. When asked about her name, the applicant claimed that he had known her as [C] in Afghanistan but she had since changed her name and he didn't know what that name was. The delegate reminded the applicant that in his TPV application he had declared his sister's name was [AB]. The applicant told the delegate that his daughter had married [AB's] son in Australia but that the applicant and his sister were no longer on speaking terms because they (the applicants) have changed their religion. The applicant also added that his sister disapproves because his daughter does not wear a hijab and that she has disowned her own son as a result. The delegate asked the applicant if [AB] had provided a written statement to say that she was his sister and he responded that she had not, because she did not support them, but that he could request her to do a DNA test to confirm their relationship if required.
   2. The delegate then put to the applicant that in [AB's] 2005 offshore visa application she had given a different family composition, which did not include the applicant. The delegate also put to the applicant that the names of [AB's] parents, as listed in that application, did not match the names of either set of parents the applicant had provided for his Iranian and Afghan identities. The delegate offered the applicant seven days to respond to her concerns in writing, but he declined and said he wished to explain the discrepancy during the TPV interview. The applicant reiterated that although he was telling [the] truth, he did not want to question whatever information his sister had given to the Australian authorities. The applicant added he knew of other persons in Australia who would be able to vouch for his identity.
   3. One month after the TPV interview the delegate received documents sent directly from an accredited DNA testing company in Australia, including affidavits from both the applicant and [AB], an accredited DNA collection form, a copy of [AB's] Australian passport, and the applicant's Victorian driver's licence (in his Iranian identity). Several days later the applicant's representative sent the delegate an email attached to which was a 'Kinship Report' from the same organisation. The report concluded that the DNA samples taken from [AB] and the applicant strongly support a finding that they are full biological siblings. In the email the representative argues that any conclusions drawn about the discrepancies between [AB's] declared family composition and the applicant's are now worthless, and that as the applicant has now been conclusively proven to be an Afghan citizen, he intends to return his unlawfully acquired Iranian documents to the Iranian authorities in Canberra.
   4. Given the applicant's evidence at his TPV interview that [AB] had disowned his family and they were no longer in contact, I consider it odd that that (sic) less than a month later she agreed to submit to DNA testing to prove their relationship. However, I accept on the evidence before me that the applicant and [AB] are full biological siblings. I also accept, based on the excerpts from [AB's] 2005 offshore visa application, and the 'Document for Travel to Australia' that she used to enter Australia with her spouse and sons, that her humanitarian visa was issued in Islamabad, Pakistan and that she departed from that city. In her offshore visa application, [AB] put her place of residence as an address in Kabul, and listed only one sibling, a sister called [D] whom she states died in 1992. I note the applicant has also listed a sister, [D], as alive and currently living in Kabul and that he again claimed this during the TPV interview. I also note that there is a seven year age discrepancy between the date of birth the applicant listed for [D] and the date of birth which [AB] listed for [D].
   5. Although I accept that the applicant and [AB] are siblings, this does not alleviate my concern that [AB] did not list any other siblings in her visa application, whereas the applicant claims to have two brothers and a sister in Iran, and that the names of her claimed parents, and their dates of birth, do not match those the applicant has provided. I also note that the applicant has not provided any other evidence of [AB's] Afghan citizenship, such as a taskera. Although the 'Document for Travel to Australia' notes [AB's] place of birth and citizenship as Afghanistan, in light of all the other known discrepancies, I place little weight on this. I have also had regard to the fact that [AB] may have acquired Afghan citizenship through another means, such as marriage.7
   6. Given all the information before me I am not satisfied that the applicant is an Afghan who unlawfully acquired Iranian citizenship when his mother purchased the identity of a deceased Iranian for him. In reaching this finding I have given significant weight to what I consider the inherent implausibility of the claims the applicant has raised during the TPV application process relating to his life in Iran. I have also given significant weight to the information the applicant and the applicant wife gave during their arrival interviews. I have also given significant weight to the manner in which the applicant claims he obtained his Afghan taskera, which runs contrary to the information published by the Afghan authorities in Australia. While I accept that [AB] arrived in Australia as an Afghan refugee, I place little weight on fact of their familial relationship as evidence that the applicant is an Afghan citizen. While I am prepared to accept that the applicant may have familial ties to Afghanistan, and may have visited Afghanistan, for the reasons already stated I am satisfied that he is a citizen of Iran, and not a citizen of Afghanistan.

FN 7: Islamic Emirate of Afghanistan, Article 21, "Law on Citizenship of the Islamic Emirate of Afghanistan", 2000

1. At paragraph 27 of his written submissions, the Minister accepted that:

There is no dispute that the applicant claimed that he was a citizen of Afghanistan because he was the full biological sibling of [AB], who the applicant claimed was born in Afghanistan and who was an Afghan Hazara.

1. There can be no dispute that the Authority considered the claim that AB and the first applicant were full biological siblings because the Authority accepted that claim at paragraph 47 of its reasons for decision.
2. The Authority considered the claim that AB was born in Afghanistan and had Afghan citizenship. That was apparent from the Authority's statement at paragraph 47 of its reasons for decision that:

... Although the 'Document for Travel to Australia' notes [AB's] place of birth and citizenship as Afghanistan, in light of all the other known discrepancies, I place little weight on this. I have also had regard to the fact that [AB] may have acquired Afghan citizenship through another means, such as marriage. ...

1. It is implicit in the Authority's reasons for decision that it found that AB was not born in Afghanistan. That was because of various discrepancies in the applicants' evidence which the Authority discussed. It was explicit in the Authority's reasons for decision that AB may have acquired her Afghan citizenship by some means other than birth.
2. The Authority also considered whether the first applicant was an Afghan by reason of his relationship with AB. The Authority concluded that the first applicant was not an Afghan citizen for that or any other reason. That is apparent from paragraph 48 of the Authority's reasons for decision, where the Authority said:

... While I accept that [AB] arrived in Australia as an Afghan refugee, I place little weight on fact of their familial relationship as evidence that the applicant is an Afghan citizen. While I am prepared to accept that the applicant may have familial ties to Afghanistan, and may have visited Afghanistan, for the reasons already stated I am satisfied that he is a citizen of Iran, and not a citizen of Afghanistan.

1. As to the claim that the applicant was a Hazara, the Authority accepted that he was of Afghan appearance, but not specifically Hazara. The Authority noted at paragraph 18 of its reasons for decision that:

I also consider the applicant's evidence regarding his purported identity as an Afghan Hazara was vague and appeared evasive. The applicant told the delegate that he was raised in Iran so was not familiar with Afghan Hazara culture, and could only recall a ceremony in which a sheep was killed after Ramadan. The applicant added that in Kabul he had spoken a language called "Kabuli", not Hazaragi, of which he only knew a few words. Given the applicant's evidence that he did not leave Afghanistan until age 13 or 14 I find it difficult to accept that he cannot recall any substantive details regarding the culture he claims he was born into.

1. The Authority said at paragraph 38 of its reasons for decision that, in his arrival interview:

...While I note the applicant referred to being discriminated against because he looked like an Afghan, he did not mention that he was an ethnic Hazara as he now claims.

1. Without accepting that the first applicant was a Hazara, the Authority said at paragraph 50 of its reasons for decision that:

I accept Iranian citizens of Afghan appearance, such as the applicant, and their family members, may face discrimination in Iran. ... Khavaris are often victims of racially motivated discrimination based on their appearance, which often hint to their Afghan Hazara origins, irrespective of whether they hold Iranian citizenship or not.

(footnote omitted)

1. Basically, the Authority accepted that the first applicant had an Afghan appearance and faced discrimination for that reason. The Authority did not accept that the first applicant was an Hazara.
2. The applicants' point seems to have been that the first applicant must have been an a Hazara because AB, his full biological sister, was a Hazara. However, it was claimed, but not established, that AB was a Hazara.
3. In their written submissions, the applicants pointed to CB81, which is part of the first applicant's visa application where he lists his family members. It does not say any of them are Hazara.
4. The applicants also pointed to CB205 and CB206. This is an email that encloses AB's travel document, which includes photographs of AB, her husband and children. The covering email asserts that the first applicant is a Hazara. The travel document does not state that AB is an Hazara. The covering email urges the decision maker to consult experts in the Department of Immigration to look at the photographs because, "Without a shadow of doubt", they will conclude that AB and her family are Hazara. However, the Authority was not bound to make that enquiry. It was for the applicants to put forward such information as they wished.
5. The applicants also pointed to CB259. That was the applicants' submission dated 17 January 2020, which again asserted that AB and therefore the first applicant were Hazaras. This was a claim, not an established fact.
6. In oral submissions, the applicants noted that AB's Australian passport showed her place of birth as Dahan Gulak, which is in Afghanistan. The Minister inadvertently omitted a copy of AB's Australian passport from the court book, but it was attachment SL-1 to the affidavit affirmed by the Minister's solicitor, Samantha Liddy, on 10 June 2025. AB's Australian passport was before the Authority. The Authority expressly mentioned it at paragraph 45 of its reasons for decision. The Authority was clearly cognisant of the claim that AB was born in Afghanistan and the evidence in support of it. However, the Authority rejected that claim, as discussed above. AB's Australian passport does not add anything of substance to the claim. The statement about AB's place of birth in her Australia passport was obviously based on what AB had said. It is derivative evidence.
7. All in all, the Authority considered the claims set out above, but, except for claim (a), rejected them.

1. For this part of ground 1, the applicants relied firstly on AVQ15, where the court said:
   1. A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant's credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
   2. In their text, The Law of Refugee Status (2nd ed, 2014) at p 139, James Hathaway and Michelle Foster describe the assessment of credibility as often being based on one or more of four matters: plausibility, relevant knowledge of an asylum seeker, demeanour and consistency of testimony. The learned authors discuss in detail (at pp 139-149) the comparative jurisprudence on these four features of credibility assessments, including references to many decisions of this Court dating back 20 years. The necessity for care, fairness and a reasonable approach, in order to avoid what the learned authors describe at one point as "a quest to disbelieve" (at p 138), or to avoid irrationality or legal unreasonableness in an approach to credibility assessment, is evident from the comparative authorities there discussed, including as we have noted, many authorities from this Court. The learned authors conclude (at pp 148-149):

As can be seen, the tools available to assess the credibility of an applicant's testimony are each highly flawed. Reliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin. The use of knowledge tests is problematic given difficulties to identify both true core knowledge and knowledge that is appropriate to a person in the applicant's particular circumstances. Demeanor assessment is of necessity benchmarked against some assumption of universal normalcy (which does not actually exist), and can prove especially ill-suited to assessing the claims of women, children, and victims of trauma. And a focus on the consistency of testimony is based on a false psychological assumption about the nature of truth-telling over time, and can be heavily skewed by an applicant's understandable reluctance to be forthcoming at early stages of the determination process and where evidence is provided (as is normally the case) through an interpreter. Real caution is thus appropriate before any adverse inference regarding credibility is drawn on one of these bases.

(Footnotes omitted.)

1. One authority to which Hathaway and Foster refer is the decision of a Full Court of this Court in W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 (W375/01A) where the Court (Lee, Carr and Finkelstein JJ) said at [15]:

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.

1. Consistently with its task on review, and bearing the reality to which the Full Court in W375/01A referred steadily in mind, appropriate attention has to be given by a decision-maker (here, the Tribunal) to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment. As will shortly emerge, this did not occur here because the Tribunal overlooked what the appellant had earlier told a Departmental officer at the appellant's interview and this material was highly relevant to the question whether the appellant had given inconsistent evidence in support of his case.
2. Secondly, 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. As we have noted above, adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents. In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.
3. Thirdly, even where it is reasonably open to find that a person has given inconsistent evidence, the 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.

...

1. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.

(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision-maker's powers, procedures, functions and obligations.

(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.

(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored "relevant material" does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant's claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.

(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).

(e) Merely because there is no reference in the decision-maker's reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10] per Gleeson CJ).

(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.

1. Secondly, the applicants relied on ASB17, where the court said:

The language of "inconsistency"

1. On this appeal, and despite what the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 said at [22]-[28], the Minister's submissions at some points continued to use the term "inconsistent" and "inconsistency" as something of a global label. The Authority's reasons also tend to do this. The difficulty with this approach, as the Full Court observed in AVQ15 at [27], is that such labels can mask the need for deeper analysis.
2. The adjective "inconsistent" means, according to the Macquarie Dictionary:

1. lacking in harmony between the different parts or elements; self-contradictory.

2. lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.

3. not consistent in principles, conduct, etc.

4. acting at variance with professed principles.

5. Logic incompatible

41 The Oxford English Dictionary defines the adjective in the following way:

[of related things] Not consisting; not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous;

[of a single thing] Wanting in harmony between its different parts or elements; self-contradictory; involving inconsistency.

1. 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].
2. 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. 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.

The effect of inconsistencies

1. 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. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker's task requires her or him to "assess the significance of that inconsistency and the weight to be given to it". Again, 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.
2. 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. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

1. The Minister submitted that AVQ15 and ASB17 had to be read subject to BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 at [157] where Snaden J, with whom O'Callaghan J agreed, said:

... The appellant's contention that the IAA did not "expressly assess" - that is to say, record in its written reasons any assessment of - the significance that it attached to the existence of the relevant evidential inconsistencies may readily be accepted. I am unable, however, to see how that alone might suffice as a basis upon which this court might, on appeal, draw the inferences that the appellant would have us draw. To the contrary, the IAA appears very much to have turned its mind to whether or not the presence of the relevant evidential anomalies was significant enough to warrant its rejection of the appellant's narrative. Reasonable minds might differ as to whether they did; but I am unable to accept that the IAA might be said, in this case, to have relevantly misunderstood the nature of its task, much less performed it unreasonably or unfairly, or otherwise in a way unauthorised by the Act.

1. The Authority identified many discrepancies in the applicants' case, as had the delegate. The applicants argued that the discrepancies were rendered immaterial by the DNA evidence that the first applicant and AB were full biological siblings.
2. The discrepancies, or questionable matters, relating to AB, which were noted by the Authority, were as follows:

(a) the first applicant told the delegate that, in Afghanistan, he had known his sister by a particular name, but she had since changed it, and he did not know what it was; however, in his protection visa application, he had named her as AB [43], which is the name in her Australian passport: [45];

(b) the delegate put it to the first applicant that, in her visa application, AB had not included the first applicant as one of her siblings, and had given different names for her parents to those the first applicant had provided for his parents: [44];

(c) the first applicant's explanation for this was that he was telling the truth, but he did not want to question the information AB had given the Australian authorities: [44];

(d) it was odd that AB, who the first applicant had said at the TPV interview he was estranged from [43], would have, in less than a month after the TPV interview, provided a DNA sample to assist the first applicant: [46];

(e) AB said in her visa application that she had only one sibling, D, who died in 1992; however, in his protection visa application, the first applicant said that a person by the name of D was his sister, but he said that she was alive and living in Kabul: [46];

(f) the date of birth given by AB for D was seven years different to the date of birth given by the first applicant for D: [46];

(g) AB said in her visa application that she only had one sibling, a sister, D [46]; however, the first applicant said in his visa application that he had two brothers and a sister in Iran: [47];

(h) the dates of birth AB gave for her parents does not match the dates of birth the first applicant gave: [47].

1. Additionally, in concluding that the first applicant was not a citizen of Afghanistan, the Authority noted in paragraph 48 of its reasons for decision the following:

(a) the inherent implausibility of the first applicant's claims about his life in Iran;

(b) the information the first and second applicants gave during their arrival interviews; and

(c) the fact that the first applicant's claims about how he obtained his Afghan taskera is contrary to information published by the Afghan authorities in Australia.

1. Many of the discrepancies and questionable aspects of the first applicant's claims noted by the Authority are mentioned in the summary above of the Authority's reasons for decision. A major additional discrepancy noted at paragraph 24 of the Authority's reasons for decision is that the first applicant told the delegate that he was able to avoid military service by "not going to too many places and working secretly". However, in his arrival interview, the first applicant told the interviewer that he was exempt from military service because he had two young children. He said at his protection visa interview that he was exempt because he was born between 1345 and 1348.
2. The Authority had numerous reasons for concluding that the first applicant is not an Afghan citizen. Those reasons included that:

(a) the first applicant's claim that his brothers left Afghanistan because the Mujahadeen were going door to door and forcibly recruiting fighters was inconsistent with country information: [17];

(b) his claim that Afghans, including him and his mother, were fleeing Afghanistan in early 1979 because of the threat from Russia, was not supported by country information: [17];

(c) he was unable to give a detailed account of fleeing Afghanistan: [17];

(d) his evidence about his supposed identity as an Afghan Hazara was vague and evasive, even though he allegedly did not leave Afghanistan until he was 13 or 14 years old: [18];

(e) in particular, he could not recall any cultural practices, except that a sheep was killed on one occasion after Ramadan: [18];

(f) he did not speak Hazaragi, except for a few words, but claimed to speak Kabuli: [18];

(g) the supposed acquisition of a false Iranian identity was farfetched, as described above: [19];

(h) there was no evidence that the first applicant's adult daughter, who is still living in Iran, has been approached by the Iranian authorities [27], who the first applicant claimed were pursuing him because of his supposedly false identity [21];

(i) the first applicant claimed that his friend, Y, had verified his identity at the Afghan Embassy in Australia and provided information about the first applicant's father and grandfather, but Y could not have done that as he is 10 years younger than the first applicant: [29];

(j) the first applicant gave evidence that the Afghan authorities required only one witness to prove his identity, but his representative later sent a document which showed that two witnesses were required: [30];

(k) one of the witnesses was the first applicant's son-in-law and nephew, who was in no position to identify the first applicant as a person who had lived until the age of 14 years old in Afghanistan: [31];

(l) the witnesses also said that the first applicant had never had a taskera, which was contradicted by his own evidence that he had taken his taskera with him when he left Afghanistan and destroyed it when he was in his early twenties: [31];

(m) the first applicant's date of birth on the taskera he claimed to have obtained from the Afghan Embassy in Australia is the same as X's date of birth; the first applicant explained this by saying that he used the same birth date when he applied for the taskera to avoid confusion [32]; that was inconsistent with the first applicant's claim that he wished to live under his real identity [32], which is why he claimed he left Iran [41];

(n) the website of the Afghan Embassy in Australia states that it does not have authority to issue taskeras [34], contrary to the first applicant's claim that he got his taskera from the Afghan Embassy in Australia [29];

(o) the first applicant produced a certificate from the Department for Statistics and Registration in Afghanistan but was unable to explain how he was able to obtain it while he was in Australia: [33];

(p) the Department of Foreign Affairs and Trade ("DFAT") reported that document fraud is widespread in Afghanistan: [35];

(q) the first applicant did not respond to the delegate's written request for a response to her concerns about the provenance of the taskera and certificate produced by the first applicant: [36];

(r) in his arrival interview, the first applicant said he was Iranian, his name was X, he had been born in Tehran, and he was an Iranian citizen of the Persian/Farsi ethnicity; he produced various Iranian identity documents; he also provided his parents' dates of birth and said they were both Iranian citizens: [37];

(s) he said he left Iran for reasons of a dispute with his employer and being found with a receiver in his car: [38]; he took proceedings to court but they concluded unfavourably: [37];

(t) he claimed that he was discriminated against because he looked like an Afghan, but did not claim to be a Hazara: [38];

(u) in her arrival interview, the second applicant said that she and the first applicant were both born in Iran and were Iranian citizens: [39];

(v) she said they left Iran because her husband and her son were often called Afghani, and there was a lot of racism: [39];

(w) the first applicant claimed that he decided to tell the truth after he was released into the Australian community: [40];

(x) he also said that he had been confused at the time of the entry interviews after 40 hours at sea, even though his interviews were some weeks after he arrived in Australia: [40];

(y) it was not credible that the first applicant would not have begun to use his real identity until he had been in Australia for four years because he claimed that wishing to use his real identity was his motivation for leaving Iran: [41];

(z) the first applicant's willingness to commence legal proceedings in Iran was at odds with his claim to have tried to avoid the authorities in Iran: [42]; and

(aa) the various matters stated above in relation to his sister, AB.

1. The applicants argued that the Authority did not assess the significance of the particular discrepancies it identified to the question of the first applicant's Afghan citizenship. However, applying BJO18, that process was unnecessary. It is obvious that the Authority considered that the first applicant's claims about his Afghan citizenship were entirely manufactured, for the reasons which it gave. Those reasons, taken as a whole, were more than adequate support for the Authority's conclusions on the Afghan citizenship issue.
2. The applicants also argued that the Authority failed to take into account certain material.
3. Firstly, the applicants said that the Authority failed to take into account that the first applicant and AB were full biological siblings. The Authority did take that fact into account. The Authority expressly accepted it. However, the Authority considered that there was some other explanation for their biological relationship than that they were both born in Afghanistan. The Authority did not accept that either of them were born in Afghanistan. The Authority was not required to figure out exactly how AB got her Afghan citizenship. However, the Authority was convinced that she did not get it by birth. Clearly, the Authority considered that there were some anomalies in how AB got her Afghan and Australian citizenships. The first applicant hinted at such anomalies by telling the delegate that he did not want to question the information that AB had given the Australian authorities to get her Australian visa.
4. Secondly, the applicants said that the Authority failed to take into account that the applicant was four years old when his father died. The Authority was under no obligation to take into account this fact, if, indeed, it is true. The first applicant recounted this fact as part of his background in Afghanistan, all of which the Authority rejected. If this submission is directed to the first applicant giving different dates of birth for his parents to those given by AB, it is irrelevant. If he did not know the dates of birth, he should have said he did not know them.
5. Thirdly, the applicants argued that the Authority failed to take into account the DFAT Country Information Report on Afghanistan dated 27 June 2019 at [5.49] where it was said that:

Reporting of birth dates is unreliable, and reported dates are likely to be unreliable.

1. Again, if the first applicant did not know the correct birth dates, he should have said so. Moreover, for the many other reasons that it gave, the Authority had a proper basis to conclude that the situation in Afghanistan, and its practices in relation to birth dates, had no application to the first applicant.
2. Fourthly, the applicants argued that the Authority failed to take into account that AB and D had remained in Afghanistan in 1979 and the first applicant and AB had had no contact since. The Authority did consider the claim about no contact and said that it was odd, given that AB submitted herself to a DNA test to assist the first applicant with his Australian visa application within a month of saying that they had no contact. It was also odd given that AB's son was married to the first applicant's daughter and AB's son was a witness for the first applicant's taskera application. As to the claim that AB had remained in Afghanistan in 1979, the Authority implicitly rejected that claim, preferring the first and second applicants' evidence that the first applicant was born in Iran to parents who were also born in Iran, and, implicitly, that AB was well.
3. Fifthly, the applicants argued that the Authority did not take into account that there was no evidence that the first applicant was aware that D had passed away. Again, the Authority did not actually accept that D had passed away. All in all, the Authority did not accept any of the applicants' claims about family events in Afghanistan.
4. While the Authority noted discrepancies in the evidence about birth dates and family composition, the Authority had many other reasons for not accepting that the first applicant's claims about being born in Afghanistan were true. In all the circumstances, I do not consider that AVQ15 or ASB17 are sufficient to overcome the many problems that the Authority identified with the first applicant's claims. It was open to the Authority to prefer the evidence that the first and second applicants gave in their entry interviews, to the effect that the first applicant was an Iranian citizen who had been born in Iran to Iranian parents, rather than the radically altered claims that he developed four years later.
5. AB obtained Australian citizenship on the basis of findings made by her decision-maker that she was born in Afghanistan. However, those findings did not bind the Authority to conclude that AB was born in Afghanistan, and that therefore the first applicant was also born in Afghanistan. Clearly, the Authority considered that there was something untoward in the findings by AB's decision-maker.
6. Ground 1 is not made out.

1. The second ground of review in the application is:

The Immigration Assessment Authority constructively failed to exercise its jurisdiction or failed to carry out its statutory task because it failed to assess whether the applicant would suffer serious harm by reason of his Afghan appearance.

1. The Authority dealt with the issue of the first applicant's Afghan appearance as follows:
   1. The applicant's claims can be summarised as follows:

...

• The applicant lived in fear that the Iranian authorities would discover he had a fake identity. As an ethnic Hazara he always looked different, despite adopting the Iranian accent and culture. As a perceived Afghan he was regularly subjected to incidents of verbal abuse, intimidation, and harassment from the Iranian authorities and Iranian society.

...

Afghan Appearance

1. The applicant has consistently claimed that throughout his life in Iran he has faced discrimination because of his Afghan appearance and his children have faced discrimination for the same reason. I note the applicant wife also raised this matter in her arrival interview.

2. I accept Iranian citizens of Afghan appearance, such as the applicant, and their family members, may face discrimination in Iran. DFAT has stated that it is aware of sufficient incidences of official and societal discrimination against ethnic minorities to suggest a pattern of behaviour, particularly where those groups are the minority in the geographic area in which they reside. However, DFAT also notes that the experience of different ethnic groups is not uniform, and the overwhelming majority of ethnic minority communities are integrated into Iranian society, participate in politics, and identify with the Iranian nation.8 Other country information indicates that 'Khavaris' (a term for persons living in Iran of Hazara or eastern origin) may have Iranian citizenship, or be registered as Afghan refugees, or be living in Iran illegally. Khavaris are often victims of racially motivated discrimination based on their appearance, which often hint to their Afghan Hazara origins, irrespective of whether they hold Iranian citizenship or not.9

3. In the applicant's written TPV statement he claims "I was subjected to countless incidents of verbal abuse, humiliation, intimidation and harassments at the hands of the Iranian authorities and Iranian society at large." The applicant also claims that his children faced harassment and bullying at school, in particular the elder of his two sons, who was assaulted. However, most of the instances of discrimination the applicant claims to have personally faced are tied to the Iranian authorities' purported suspicion about his fraudulent identity, and I do not accept such incidents occurred. Nor has the applicant provided any credible evidence that he or his family have been prevented from accessing health, education, housing, employment, or any other type of social service in Iran on account of his Afghan appearance, and I do not accept this is the case. Given the evidence overall, I am satisfied there is a real chance the applicants may [face] some discrimination on account of the applicant's Afghan appearance.

...

1. Given all the evidence, I am not satisfied the applicants face a real chance of harm in Iran because of the matter of the applicant son's birth certificate, the applicant's interactions with Iranian authorities in Australia, the applicant son's baptism and church attendance, or the applicants' potential status as returning asylum seekers from Australia. The applicants do not have a well-founded fear of persecution within the meaning of s.5J.

FN 8: DFAT, "Country Information Report - Iran ", 7 June 2018, CIS78839411226

FN 9: Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), "Iran: Freedom of Religion; Treatment of Religious and Ethnic Minorities COI Compilation", 1 September 2015, CISEC96CF13622

1. The applicants argued that the Authority did not assess whether the first applicant would face serious harm by reason of his Afghan appearance. However, by saying in paragraph 51 of its reasons for decision that there was a real chance that the applicants may face some discrimination by reason of the first applicant's Afghan appearance, the Authority was saying that they did not face serious harm for that reason. "Discrimination" is a way of saying "not serious harm". It is immaterial that the Authority did not return to the first applicant's Afghan appearance in paragraph 61 of its reasons for decision.
2. The applicants also argued that the Authority failed to assess whether the first applicant would face serious harm from society at large based on his Afghan appearance, as opposed to serious harm from state actors. However, the Authority expressly referred to societal discrimination in paragraph 50 of its reasons for decision and expressly referred to Iranian society at large in paragraph 51 of its reasons for decision.
3. Basically, at paragraph 51 of its reasons for decision, the Authority noted that, leaving aside the incidents relating to the first applicant's alleged fraudulent identity, which the Authority rejected, the first applicant had not:

... provided any credible evidence that he or his family have been prevented from accessing health, education, housing, employment, or any other type of social service in Iran on account of his Afghan appearance ...

1. In these circumstances, it was sufficient for the Authority to say only that the applicants may face some discrimination by reason of the first applicant's Afghan appearance.
2. Ground 2 is not made out.

1. As neither of the applicants' grounds has been made out, the application will be dismissed. I will hear the parties on the question of costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.