CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2025-02-21|Before: Needham J

THE COURT ORDERS THAT:

The appeal be allowed.
The orders of the Federal Circuit and Family Court of Australia made on 24 June 2024 be set aside, and in lieu thereof, the decision of the Authority be set aside and the matter remitted to the Authority, differently constituted, for redetermination according to law.
The first respondent pay the costs of the appellant before the primary judge and the costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NEEDHAM J:
This is an appeal from a judgment delivered in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) on 24 June 2024 (CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 591) (the primary judgment). The primary judgment was given ex tempore and dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The Authority's decision affirmed the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to grant the appellant a Temporary Protection (Class XD) (subclass 785) visa.
Counsel for the appellant and the solicitor for the first respondent appeared at the hearing remotely. The appellant also attended remotely without an interpreter. The second respondent filed a submitting notice save as to costs.

The legislative framework

Section 65 of the Act empowers the Minister to grant a visa to a non-citizen. A person may apply for a protection visa under s 36 of the Act. The Minister may grant an applicant a protection visa if certain criteria in s 36(2) of the Act are met. The power conferred on the Minister may be delegated (s 496).
The criteria under s 36(2) of the Act relevantly include: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee [known as the refugee criteria]; or (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm … [known as the complementary protection criteria]
A person with a nationality is considered a refugee under s 5H and s 5J of the Act if the person is outside the country of his or her nationality and, owing to a well‑founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion, is unable or unwilling to avail himself or herself of the protection of that country. There must be a real chance that if the person returned to the receiving country, the person would be persecuted for one of these reasons (s 5J(1)). The reason must be the "essential and significant reason", must involve serious harm to the person, and must involve systematic and discriminatory conduct (s 5J(4)).
Pursuant to s 36(2A), a non-citizen will suffer "significant harm" for the purposes of s 36(2)(aa) if: (a) the non‑citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non‑citizen; or (c) the non‑citizen will be subjected to torture; or (d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non‑citizen will be subjected to degrading treatment or punishment.

The Authority's decision

The Authority determined not to grant the appellant a visa on the basis of adverse credibility findings made due to inconsistencies in the appellant's central narrative. In particular, the Authority found at [48] of its decision: A significant concern I have is regarding the applicant's evidence concerning events that purportedly led to him becoming a person of adverse interest to the Iranian state. Firstly, during the arrival interview, he repeatedly mentioned that the family gathering took place on 16 September 2011, and "exactly on my son's birthday". This assertion was reiterated in his TPV application and in his statement to the IAA dated 23 August 2022. It aligns with his written evidence in his TPV application, where he stated that he resided in Tabriz from 1 November 2011 (after being detained for 45 days). However, according to the applicant's Shenasnameh, his son was born on 6 September 2010 meaning the birthday party could not have been held on 16 September 2011 and also "exactly" on his son's birthday. Secondly, the applicant claimed in the TPV interview that he could not recall the address of his father's home where the party was held. Yet, his other evidence, including his written TPV application, indicates that he lived at this address with his parents as a child until he departed Tehran in 2011 at the age of 27. Thirdly, the applicant's assertion in the TPV interview that the music being played was not loud and would not have created any disturbance appears to contradict his statement during the arrival interview and in his TPV statement that the music was loud. While what might be considered 'loud' is subjective, I place weight on the fact that it is the applicant who has used this term in both the arrival and TPV interviews, and in his TPV statement, to describe the level of the music. Fourthly, during the arrival interview, the applicant claimed that the Sepah raided the home at 11 o'clock, without specifying whether it was morning or evening. However, the interviewing officer recorded '11pm' on the Immigration Department's written record of that interview. The applicant included this extract from the written record in his statutory declaration, implying that this is when the raid purportedly occurred. Setting aside his claim of memory issues and the passage of time, I note the applicant's evidence in the TPV interview suggests the party had been going for approximately one to one and a half hours at the time of the raid. If this were the case, it implies that the family gathering to celebrate the child's birthday commenced, rather unusually, at 9:30 pm to 10:00 pm. When considered cumulatively, the above evidence leads me to have doubts about the credibility of the applicant's central claim in this application.
One of the matters raised by the appellant before the Authority was what was referred to as the Iranian Police and Sentencing documents. These consisted of three warrants, two summonses and a "Final Court Order" relating to charges against the appellant. The Iranian Police and Sentencing documents were provided by the appellant to the Authority. They were not before the delegate.
The Authority considered the Iranian Police and Sentencing documents from [36]-[46] of its decision. In particular, the Authority relied on the Final Court Order which stated that the appellant was arrested on 17 October 2010. That date is inconsistent with his claim on arrival that he was arrested on 16 September 2011 and is also inconsistent with his earlier statements that the arrest coincided "exactly" with his son's birthday. The Authority noted that the charges contained in the Final Court Order "extend far beyond the altercation with a person in authority", and included charges related to being "involved in organising mixed night parties, alcohol, disseminating anti-government communiques, or setting fire to vehicles".
At [39] of its reasons, the Authority "accepted that these documents, on their face, constitute credible personal information for the purposes of s 473DD(b)(ii)". The Authority went on to note "several concerns" with the Iranian Police and Sentencing documents which included the discrepancies as to the date of the party, the date of his arrest, and the purpose of the party.
The Authority noted that the appellant's addresses on the warrants and summonses were inconsistent and the documents were sent to his mother's house in Iran, and so do not reflect the address given as his residence in Iran. The Authority noted (at [43]): … It is unclear why the Iranian authorities would record the applicant's place of residence differently from what he claimed, especially considering his assertion of residing at the same address in Tehran for most of his life before purportedly moving to Tabriz and Kermanshah. If these documents were deemed reliable, it would raise some doubt about the reliability of the applicant's statements regarding his living situation before his departure from Tehran.
The Authority, after considering discrepancies as to the date of the party, concluded that it would give the Iranian Police and Sentencing documents "no weight", saying (at [46]): While the Iranian Police and Sentencing documents may broadly support the applicant's claim of adverse interest from the Iranian authorities, for all of the above reasons, I am not satisfied that this information, and the applicant's evidence to the IAA in respect of it, can be relied upon as evidence of past events in Iran. I give these documents no weight.
The Authority then went on to consider a number of the appellant's claims in relation to events occurring after the central narrative, including the appellant's ability to escape to Tabriz, his divorce from his wife, the use of a friend's passport to leave Iran, the evidence regarding his charges and arrest warrants, the whereabouts of his birth certificate, and his instructions to his family in Iran not to contact him. The Authority relied on other matters that it found "difficult to accept" (at [49]) or "unconvincing" (at [53]) or "problematic" (at [56]) or "improbable" (at [57]).
In relation to the central narrative, the Authority concluded at [63]: Overall, I consider that the issues with the applicant's evidence, which as a whole I found generally implausible, unpersuasive and, at times, inconsistent or unsupported by country information, was because he was not recalling a personally lived experience. While it is possible that the applicant and his family had a celebration for their young son in September 2011, I am not satisfied that the event was raided by the Sepah, the IRGC, or any other arm of the Iranian security forces. It follows that I do not accept that the applicant was arrested, detained, or mistreated by the Iranian authorities. I also do not accept that his home was ever raided, that he has been charged with an offence, that he was required to appear in court, or that an arrest warrant was issued in his name.
The Authority concluded that the appellant was not a refugee for the purposes of s 36(2)(a) of the Act as he did not meet the requirements under ss 5H(1) and 5J. Further, the Authority was not satisfied that the appellant was one to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the appellant will suffer "significant harm" under s 36(2A).

The primary judgment

The appellant's application for an extension of time and an application for judicial review of the Authority's decision in the FCFCOA was accepted for filing on 13 November 2023. The appellant relied on two grounds in the judicial review application:
The decision of the second respondent (Authority) was, in part, based on adverse credibility findings on critical issues that were arbitrary, capricious, irrational, and lacking in evidentiary foundation. …
The finding by the Authority, at [48], that "When considered cumulatively, the above evidence leads me to have doubts about the credibility of the applicant's central claim in this application", was irrational.
The particulars of the first ground challenged the four findings at [48] of the Authority's decision (set out in [11] above).
The primary judge allowed the extension of time. The appellant appeared in person at the hearing.
At [27] of his decision, the primary judge noted that the Authority "did not give [the Iranian Police and Sentencing documents] any weight for the reasons that I have already enumerated". This is presumably a reference to the primary judge's summary of the content of the Iranian Police and Sentencing documents, which commences at [18]-[21], and a listing of "quite a few concerns" held by the Authority as to the Final Court Order which the primary judge listed from [22]-[25] and as to the warrants and summonses at [26]. It appears that the "reasons that I have already enumerated" is a reference to the "concerns" held by the Authority as to the accuracy of the Iranian Police and Sentencing documents. Like the Authority, the primary judge relied on information contained in the Iranian Police and Sentencing documents as casting doubt on the reliability of the appellant, but not for the purpose of any corroboration which those documents may have provided (for instance, to show that he met the criteria under s 36(2) of the Act).
With respect to the first ground of review, after recounting the positions of the appellant (who was appearing in person) and the first respondent, the primary judge summarised the evidence of inconsistencies relating to the four factual matters in question in this appeal. At [43]-[47] of the primary judgment, the primary judge set out the factors taken into account in arriving at the adverse credibility findings: The first was that the Applicant had said that the gathering took place on 16 September 2011, exactly on his son's birthday. The IAA had said, because the son was born on 6 September 2010, it meant that the party could not have been exactly on the son's birthday. The Applicant says that there was no basis for the claim that the Applicant had said that the gathering took place exactly on his son's birthday. The second thing is that it was claimed by the Authority that the Applicant had said, in his interview with the delegate, that he could not remember the address of his father's home. Yet, elsewhere in the written documents, he had provided his father's address. The third claim was that the Authority said that the Applicant had asserted that the music at the gathering was not loud, but during his arrival interview, he said that the music was loud. Fourthly, that the IAA had said that, in the statutory declaration, the Applicant said the authorities raided the home at 11 pm, but in his interview, he said that the gathering had been going for one to one and a half hours, which meant that it would have started at 9.30 to 10 pm, which was rather unusual for a child's birthday party. With regards to these four aspects, the Applicant says that each of those aspects is illogical, as well as not being material, in deciding whether the central narrative had taken place.
The primary judge considered that the material put before the Authority, which included the Iranian Police and Sentencing documents, suggested that the gathering from which the arrest took place occurred 11 months prior to September 2011. The primary judge found that this discrepancy put the issue of when the central narrative occurred in doubt.
Further, the primary judge noted that the appellant could not recall his father's address despite living at that residence for most of his life. The primary judge found it was significant that the appellant's father's address contained in the written documents was different to that in the arrest warrants and Final Court Order. The primary judge also considered that beginning a party to celebrate a child's birthday at 9:30pm or 10pm "would be something that is objectively rather unusual".
The primary judge concluded at [53] that the first ground must fail for the following reasons: It may be said that each of these four matters may, by themselves, not be able to discredit the central narrative, but if all four are looked at together, they give each other a strength that they do not have if looked at singularly. The adverse credibility findings did not lack an evidentiary foundation and were open on the evidence.
The primary judge was of the view that the finding of the Authority as challenged in ground 2 was open on the evidence (at [56]). Accordingly, ground 2 also failed.
The appellant made some further submissions before the primary judge that he could not recall precise dates after 10 or more years. He stated that his younger brother was executed by the Iranian government the previous year and that he too could be executed on his return. The primary judge noted that this information was before the Authority but no challenge was made to the Authority's ruling that this was not credible personal information. The appellant made submissions regarding the power of the Sepah and that he would not have left a child behind if he did not have a problem in Iran. He also spoke to the primary judge about his conversion to Christianity. However, the primary judge was not satisfied that any of this information indicated that a jurisdictional error had been made by the Authority.
The primary judge dismissed the application with costs.

The appeal

The appellant's grounds of appeal in this Court are as follows:
The Federal Circuit and Family Court of Australia (the Court) erred when determining, at [53], that the adverse credibility findings referred to by the appellant in Ground 1 of his application to the Court dated 10 November 2023 (application) "did not lack an evidentiary foundation and were open on the evidence".
The Court erred in failing to make a finding in relation to the claim made by the appellant that the adverse credibility findings referred to by the appellant in Ground 1 of his application were not material to the central narrative of the appellant's claim for protection.
The Court erred by not determining, at [56], that the finding of the second respondent at [48] of the primary decision was irrational.

Applicable legal principles

Adverse credibility findings are amenable to judicial review where the findings can be shown to be legally unreasonable, such as by being based on illogical or irrational findings or inferences of fact (BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [50] per Yates, Wheelahan and O'Bryan JJ).
In addition, credibility findings must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made (EVI19 at [36] per Stewart J, citing SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ).
The principles guiding judicial review of adverse credibility findings were outlined in BQQ15 at [51] as follows: (a) Whether or not a credibility finding is affected by jurisdictional error is a case specific enquiry and should not be assessed by reference to fixed categories or formulae. (b) 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 reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision). (c) 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: SZMDS at [96]. Even emphatic disagreement with the Tribunal's reasoning is not sufficient to make out illogicality: SZMDS at [124].
When identifying an inconsistency to ground a finding of adverse credibility, the decision-maker is to consider matters including "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" (AVQ15 v Minister for Immigration (2018) 266 FCR 83; [2018] FCAFC 133 at [28] (Kenny, Griffiths and Mortimer JJ)).
The appellant referred to SAAK v Minister for Immigration (2002) 121 FCR 185; [2002] FCA 367 at [21] (North, Goldberg and Hely JJ) where the Court observed that "… there is a need for the Tribunal to exercise care in relying on an inconsistency between the first interview and later evidence as the foundation for an adverse credit finding…" due to the lived experiences of asylum seekers who have good reason to distrust authority. The appellant also referred to W375/01A v Minister for Immigration [2002] FCA 379 where Lee, Carr and Finkelstein JJ noted at [15] the "invidious" position of asylum seekers who are required to provide multiple versions of the basis for their claim and may not speak English.
A finding of "implausibility", which may also base an adverse credibility finding, was discussed in BQQ15 at [56]: A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in WET040 (No 2), the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by "implausible". (Emphasis in original.)
Even where a finding of fact is made in error, more is required before a jurisdictional error is established. The error needs to be material (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ).
Materiality was most recently considered by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12. In that decision Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ stated at [6]-[7] (with Beech-Jones J agreeing at [38]): In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality. In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a "threshold of materiality" in the event of non-compliance. (Emphasis in original; references omitted.)
Their Honours continued at [14]-[17]: The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Emphasis in original; references omitted.)
In this appeal, it is clear from the reasoning of each of the Authority and the primary judge that the four factual contentions were material to the final decision. The Authority used the credibility findings arising out of, inter alia but importantly, those four "strands" of the central narrative to reject the appellant's contention that his father's house had been raided, that the appellant was arrested, that he had been charged with an offence, or that an arrest warrant had been issued in his name (see [63] of the Authority's decision). At [53] of the primary judgment, the primary judge relied on the four "strands" and found that the credibility findings at which they were at the heart "did not lack an evidentiary foundation and were open on the evidence". Accordingly, I will regard the four factual findings as having the relevant materiality to the appeal, on the basis that had the factual findings been differently made, the outcome could have been different.

Ground 1

The primary judge dismissed ground 1, holding that the adverse credibility findings "did not lack an evidentiary foundation and were open on the evidence" (at [53]). He did so by saying that: 48 The four aspects are like four strands of rope; that one strand in and of itself may not be able to carry a weight, but the four strands working together can do so. … 53 It may be said that each of these four matters may, by themselves, not be able to discredit the central narrative, but if all four are looked at together, they give each other a strength that they do not have if looked at singularly".
I have recorded the process by which the primary judge considered the evidence and reached a finding as to the four aspects or "strands" when I consider each one.
The appellant submitted that his account of the night of the raid was "essentially consistent over a period of almost six years", as well as being largely consistent with the account laid out in the Final Court Order, and that the Authority's choice to focus on the four matters in relation to the central narrative "led to a decision which, as a consequence, was arbitrary, capricious, irrational, and lacking in evidentiary foundation". The appellant made four key contentions as follows.

The date of the party

The primary judge's consideration of the evidence, and the finding as to the date of the party, is found in [49] of the primary judgment. It reads: The fact that the Applicant had said that it was a birthday party that occurred in September 2011 was significant. The material that the Applicant put before the [Authority] suggested a date 11 months prior to September 2011. That put the issue of when the central narrative occurred in doubt.
The appellant argued that the Authority failed to carry out its task of assessing and explaining the significance of the claimed inconsistency between the appellant's claim that the party took place on 16 September 2011, and "exactly on my son's birthday", being 6 September 2010 according to his son's identity document, which was only a 10-day discrepancy. The appellant submitted that this discrepancy may not even amount to an inconsistency.
The first respondent took the position that the Authority's decision discloses adverse credibility findings beyond the 10-day error. For example, the Final Court Order discloses that the raid occurred on 17 October 2010 when the appellant's son would have been approximately six weeks old. The first respondent argued that this 11-month discrepancy was not adequately explained by the appellant's reasons that they celebrated his son's birthday on that date because he was born a month early and spent that time in hospital. The first respondent also noted that the charges in the Final Court Order extend far beyond the appellant's original claim.
I note that the Authority indicated that it would give the Iranian Police and Sentencing documents "no weight". However, it appears from the Authority's reasoning in its decision that it was, in fact, relying on information contained in some of those documents to ground its findings of adverse credibility against the appellant. The legal representative for the first respondent referred me to the High Court decision of Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30 at [14] per Gleeson CJ that: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.
The first respondent submitted that I should interpret the Authority's words as meaning the Iranian Police and Sentencing documents are given "no weight as corroborative documents". The first respondent submitted that the Authority accepted the "new information" (ie, the Iranian Police and Sentencing documents) for the purposes of s 473DD(b)(ii) of the Act (see [39] of the Authority's decision), and its reasoning could have been a little clearer in making the finding that it accorded the documents no weight. It would appear evident from reading the face of the decision record that it gave them no weight as corroborative documents to establish the claims that the appellant made in support of his application for the visa.
However, the Authority did not so limit its statement. It did not appear to use those documents in rejecting the central narrative (although as noted above there was some recitation of the contents of those documents). The primary judge did use the Iranian Police and Sentencing documents to reject the central narrative, without clarifying that he was doing so, and without having regard to the corroborative aspects of those documents.
While the treatment of the Iranian Police and Sentencing documents was not an express ground of appeal, I have taken into account the way in which the primary judge used the Iranian Police and Sentencing documents in arriving at the conclusion that the appellant's credibility was adversely affected by the discrepancies in the date of the party.

Father's address

The primary judge's reasoning as to this ground is found in [50] of the primary judgment. It reads: The Applicant had said that he had lived at his father's house most of his life, yet he could not recall that address. The fact that those written documents had the address, which was different to that in the arrest warrants and court order, was significant.
The appellant submitted that the Authority failed to carry out its task of assessing and explaining the significance of the discrepancy between the appellant failing to recall the address of his father's home during the TPV interview and the fact that the address was identified on numerous occasions during the visa application process. In oral submissions, the appellant took me to multiple occasions where the same address was given in the Irregular Maritime Arrival & Induction Interview form as well as in his application for a TPV, made some four years later.
Counsel for the appellant pointed to the part of the protection visa interview where the appellant was asked about his father's address, and in particular the following passage. DOHA OFFICER: Yeah? Do you recall where you were living at this time, [CQO23]? APPLICANT: My father's house. DOHA OFFICER: Okay. APPLICANT: I don't remember the address. DOHA OFFICER: That's okay. That's doesn't - that doesn't - so, it was in your father's house in what town? APPLICANT: Tehran.
The interviewer then went on to another matter (the party, its noise, and its purpose) and did not press the appellant on the address. It was submitted by the appellant that the interviewer did not press the matter, because it could be inferred that the officer did not think it important, as the address was given on a number of occasions on his application forms.
The first respondent however pointed to other findings made by the Authority that raised some doubt about the reliability of the appellant's claims, including that the appellant's addresses recorded in the Iranian Police and Sentencing documents were different to the address the appellant provided on arrival, and the documents did not consistently show the same address where they were served. The first respondent submitted that the appellant's failure to recall his father's address was merely "an intermediate factual finding on the way to making its ultimate conclusions".

Loud or not loud music

The primary judge's reasoning in relation to this ground is found in [51]. It reads: Regarding the description of the level of music being loud, the Applicant had given two different descriptions of the level of music. In his arrival interview and the delegate interview, he said that the music was not loud. In his visa application statement, he said that the music was loud. The Tribunal said, at paragraph 48, that: …While what may be considered 'loud' is subjective, I place weight on the fact that it is the applicant who used this term in both the arrival and TPV interviews…
In respect of the inconsistency in the appellant's evidence that the music at the family gathering was "loud" or "not loud", the appellant cited Stewart J's finding in EVI19 at [49] that: The difference in accounts concerns a matter of subjective sense perception in relation to an event almost two years prior to the first account and more than seven years prior to the second, putatively inconsistent, account. Moreover, the explanation given in relation to the music not being loud was that it was not an annoyance to anyone, i.e., the music was not so loud as to have caused an annoyance such as to justify the intervention of the authorities. That is not necessarily inconsistent with the earlier statement that the music was loud; it is a relative question which depends on other unexplored factors such as whether the music was being played inside or outside and the proximity of neighbouring properties. It was irrational for the Authority to treat such a difference as sufficiently significant to ground the conclusion that the appellant's central narrative was inconsistent. On any view, the inconsistency is minor, even trivial. It was thus for the Authority to explain, in accordance with the principles set out in AVQ15 and ASB17, why the inconsistency was to be given the significance that it gave it. (citations omitted.)
The first respondent submitted that EVI19 is of little utility to the present proceedings as it was a decision in relation to earlier findings of a differently constituted Authority which "are not comparable to the detailed and considered reasons" of the Authority the subject of this appeal. The first respondent also noted that the Authority placed weight on the fact that the inconsistent use of the word "loud" was from the appellant himself. In oral submissions the first respondent argued that the Authority relied on this inconsistency to ground a finding of credibility, not to make a finding as to whether the volume of the music meant that a raid did or did not occur. Even if this finding was not open to the Authority, the first respondent submitted that this finding would not be so critical as to disclose jurisdictional error in the Authority's decision and was not the only inconsistency identified in the central narrative.

Timing of the party

The primary judge's reasoning as to this ground is found in [52] and is as follows: The fact that if a party to celebrate the birthday of a child begins at either 9.30 pm or 10 pm would be something that is objectively rather unusual.
The appellant was critical of the Authority's "strained approach" in calculating the starting time of the family gathering by using the information recorded in the arrival interview that the party started at 11pm and the appellant's answer in the TPV interview that the party had been going on for one to one and a half hours before the raid. The appellant contended that "the Authority gave no rational or evidentiary basis for considering that a child's birthday party starting at 9.30-10.00 would be unusual in Iran". The Authority did not explain the significance of this finding and there was no country information relating to start times for children's birthday parties in Iran nor consideration that the birthday party might be more for the parents than the child. The appellant contended that this "finding was based on little more than vague speculation and conjecture".
The first respondent argued that it is "self-evident that there is some irregularity with the ordinary human experience" to commence a birthday celebration for a one month or one year old child at 9:30pm or 10pm. The first respondent noted that the Authority did consider country information in relation to the Sepah and official action taken against parties, gatherings and celebrations in Iran more generally. The first respondent nevertheless submitted that should this finding not be open to the Authority due to a lack of country information, this finding would not disclose jurisdictional error as this observation was not so central or critical to the Authority's ultimate finding. This factor was simply one finding that led the Authority to draw adverse credibility findings against the appellant.

Consideration of Ground 1

The essence of Ground 1 is that the reliance on the four "strands" of reasoning which led to the adverse credibility finding is unreasonable. As noted by Gordon J in Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464; [2022] HCA 15 at [31]: … "Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker." … That conclusion will be open where a decision is "so unreasonable that no reasonable person could have arrived at it", although it is by no means limited to such a case. It is concerned with both outcome and process. (Emphasis in original; references omitted.)
And at [43]: As stated above, unreasonableness is concerned with both outcome and process. Whether what is being reviewed is an exercise of power or the formation of a state of satisfaction, a finding of unreasonableness is not limited to cases where the outcome is one which no reasonable decision-maker could have reached. As Crennan and Bell JJ relevantly said [in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [133] and [135]]: "the correct approach is to ask whether it was open to the [decision-maker] to engage in the process of reasoning in which it did engage" and a decision might be said to be illogical or irrational (or, it might be added, unreasonable) "if there is no logical connection between the evidence and the inferences or conclusions drawn". Leaving aside the supposed distinction between the exercise of a power and the formation of a state of satisfaction, it is not in dispute that adverse credibility findings are susceptible to jurisdictional error on the basis of unreasonableness. (Emphasis in original; references omitted.)
The question for me to determine is whether the credibility findings were "rationally made and based upon facts having logical and probative weight, and be articulated properly" (see EVI19 at [36]). Accordingly, I should consider the underlying facts and the reasoning which goes to make up the four identified "strands" of the rope which led to the Authority's decision, and assess whether any errors as identified result in a finding of unreasonableness as to the outcome, and the process, of the reasoning.
I note, as did Stewart J in EVI19 at [37], that the Authority did not have the benefit of hearing from the appellant in person and so "its adverse credibility findings are therefore not supported by any considerations of demeanour". The primary judge did, of course, have the benefit of the appellant appearing in person remotely, but not to give evidence under oath, and speaking through an interpreter in undoubtedly stressful circumstances.

The date of the party

The appellant relies, first, on the date of the party. I have considered the submissions of the first respondent in relation to the reason for the party (whether to celebrate the birth of his son, or as a "birthday party" as it may be generally understood in Australia) and the way in which the primary judge and the Authority reasoned that discrepancies in the date should inform the finding that adverse credibility inferences should be drawn from those discrepancies.
The first respondent submitted that the "appellant [gave] a different version of events on every occasion". That is somewhat of an overstatement. It is the case that there are inconsistencies in the date, both in the appellant's accounts and in the documentation, including accounts recorded in the Iranian Police and Sentencing documents.
The appellant noted in oral submissions that the Iranian Police and Sentencing documents were "not used … to reject the central narrative". That is the case in relation to the Authority's reasoning, but I am not sure that I agree with that when it comes to the primary judge's reasons. In particular, the primary judge referred at [49] to "material that the Applicant put before the [Authority which] suggested a date 11 months prior to September 2011" in doubting the central narrative. That date appears in the Final Court Order - a document necessarily created in the absence of the appellant, given that he had left Iran.
The appellant does not challenge the exclusion of the Iranian Police and Sentencing documents by the Authority. In circumstances where the Authority accorded them "no weight", and where the primary judge does not explain his use of them despite that to point to inconsistencies in the dates, it is not a logical progression on the part of the primary judge to include elements of those documents as a reason why the central narrative should be rejected. The first respondent's written submissions rely on the Final Court Order to ground his arguments that there was an evidentiary foundation for the adverse credibility findings "that extend far beyond a claimed ten-day error".
As to inconsistencies generally, I note the statement of the Full Court of this Court in ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38 per Griffiths, Mortimer and Steward JJ at [45]: It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstance 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.
I agree with the appellant's submissions that:- In EVI19 v Minister for Immigration [2022] FCA 518 (EVI19) Stewart J at [79] cited the following passage from Hathaway J and Foster M, The Law of Refugee Status at p. 140 (emphasis in judgement): [D]ecision-makers are too often prone to impugn an applicant's credibility on the basis of some vague sense of the implausibility of the testimony given, described in one case as having been "premised on inferences, assumptions, and feelings that range from overreaching to sheer speculation." Even the most careful assessment of plausibility about risks in a foreign country must be undertaken with real humility, since the decision-maker's understanding of plausibility may well be grounded in a view of rationality at odds with circumstances in the applicant's country of origin. More generally, account must be taken of the twin cautions that "[s]peculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence," and that any assessment of implausibility must be carefully "tethered to the record … [avoiding] hyperbole." (Emphasis in original.)
Neither the primary judge, nor the Authority, considered the significance of the inconsistencies as to the date of the party in any detail, except to note that they existed. Indeed, the Authority admitted of the "possibility" that there was a party in September 2011. It is clear that each of them regarded the date of the party as central to the credibility of the appellant, but where the evidence relied on by the Authority disclosed only a 10-day discrepancy which could be explained by many of the factors set out in ASB17, it is not a strong evidentiary basis on which to reject the credibility of the appellant.
It is clear however that there is no one date relied on by the appellant, and there are documents which undercut his statements that the party happened "exactly" on his son's birthday. There was an evidentiary basis, and it was open for the Authority to find, that the party did not happen on 16 September 2011, and that the appellant's son was in fact born on 6 September 2010.

Father's address

The finding of the Authority was that "the applicant claimed in the TPV interview that he could not recall the address of his father's home where the party was held" (at [48]). However, as set out above in [54], when read in context, the appellant noted that he could not recall it (some six to seven years after arrival in Australia), and was never asked again. In fact, he was reassured in effect that it was not important ("[t]hat's okay. That's doesn't - that doesn't-"). In the context of the appellant having provided that address on a number of occasions previously, it is my view not open for the Authority, and for the primary judge, to regard this slip in a visa interview as an "intermediate factual finding on the way to making its ultimate conclusions" (as noted in the first respondent's oral submissions).
The primary judge had regard to the Iranian Police and Sentencing documents such as the arrest warrant and the Final Court Order, which showed different addresses to that provided by the appellant consistently during his application process. However, neither the Authority (expressly) nor the primary judge (impliedly, by accepting the reasoning of the Authority) "gave any weight" to the Iranian Police and Sentencing documents (at [27] of the primary judgment). The appellant was, of course, not the author of the warrants, summonses or Final Court Order.
The weight placed on the answer to the question set out in [54] above is an illogical or unreasonable aspect of the Authority's decision-making process. Had the appellant been questioned further, it may have been that he would have recalled the address, or would have given a wrong address, and the "intermediate factual finding" would have had something more significant upon which to be based. However, a simple statement of lack of memory, and an immediate reassurance and move to another topic, is not a logical or reasonable basis for an assessment that the appellant had not been recounting his actual lived experience.

Loud or not loud music

The issue of whether the music was loud, or not loud, was one which was examined at length in EVI19 at [40]-[49]. The first respondent urged on me the differences between the finding of the Authority in that case (which was inferred by Stewart J to be one of significant weight being given to the inconsistency) and the decision under appeal before the primary judge (which had an express finding of weight being given to the inconsistency) in order to distinguish Stewart J's conclusion that "[i]t was irrational for the Authority to treat such a difference as sufficiently significant to ground the conclusion that the appellant's central narrative was inconsistent. On any view, the inconsistency is minor, even trivial" (EVI19 at [49]).
There is no significant difference in the way in which the evidence of "loud/not loud" was treated by the Authority, and I agree with Stewart J that the way in which the appellant gave the accounts was consistent with a subjective assessment of volume in different contexts in different interviews.
There is no evidentiary foundation for the finding that the use of "loud" or "not loud" was sufficient, alone or as part of the "four strands", to reject the appellant's central narrative.

Timing of the party

The resolution of this issue - that such a late time for a child's birthday party is "objectively rather unusual" - has no rational basis. There was no evidence before the Authority or the primary judge as to whether one of the Australian ways of celebrating a child's birthday, where the child is the centre of the party, is a common way of celebrating the birth of a child in Iran. It is illogical to overlay the Women's Weekly birthday cake and candles concept onto a celebration in a profoundly different cultural context. There was no other reason given for the rejection of the appellant's version that this was a party to celebrate the birth of a child, and consequent rejection, as one of the strands of evidence, of his narrative of altercation, arrest, and escape. The first respondent was only able to point to country information about a police intervention at a "gay birthday party" which did not take the mater any further.
The acceptance by the primary judge that it was "objectively rather unusual" to celebrate a child's birth later in the evening and for that celebration to be continuing at 11pm is not a matter which is logical or available on the evidence.

Do the four strands create a strong enough rope?

In my view, the only strand of the four relied on by the Authority, and the primary judge, which has some evidentiary basis is the concern about the date of the party. The other three are illogical and have no evidentiary basis.
The Authority accepted that it was "possible that the applicant and his family had a celebration for their young son in September 2011" (at [63]). While I have found that there was an evidentiary basis for a finding that the party did not happen on the date specified by the appellant (16 September 2011), neither the Authority nor the primary judge considered the impact of a discrepancy as to the date on the appellant's overall credibility. The primary judge, without any reasoning as to the inherent likelihoods or otherwise, found that the date discrepancy was linked with whether the central narrative occurred or not. I accept the appellant's submissions that it was a strained approach to point to these four inconsistencies (or even just to the documented discrepancy as to the date) and use them to ground a wholesale rejection of the central narrative, which extends, of course, well beyond the party and into an arrest and escape.
In other words, I do not regard the concerns about the date of the party as being sufficient in an evidentiary sense to justify regarding the appellant's central narrative as so inherently unbelievable as to reject the other accounts of his interactions with the Iranian police. There is no logical evidentiary basis to do so. I would uphold Ground 1 of the appeal.

Ground 2

With respect to the second ground, the appellant argued that the primary judge erred in failing to make a finding that the adverse credibility findings were not material to the central narrative.
The first respondent submitted that Grounds 1 and 2 are inherently contradictory, given that Ground 1 is contending that the Authority's findings were unreasonable and Ground 2 is arguing that the inconsistencies were in any event not material. To the extent that the appellant is using the word "material" in the sense of giving rise to jurisdictional error, the first respondent contended that the primary judgment did not find that any error had occurred such that it was necessary to consider whether the findings were material.

Consideration of Ground 2

It appears to me that the appellant in this ground is using the words "not material" in the sense that the inconsistencies were insignificant, or merely peripheral or minor, to determining the overall veracity of the central narrative (see AVQ15 as cited in [35] above). While I do not need to determine Ground 2, having upheld Ground 1, I regard the appellant as having made out his case that the primary judge, erroneously, made a determination that the factual findings giving rise to the adverse credibility findings were material or significant to the central narrative. He did so in his metaphor of the four strands of evidence being sufficient - or material - to uphold those findings.
I am also of the view that the primary judge's error in this was material in the sense of giving rise to jurisdictional error. Had the primary judge properly made the conclusions as to the evidence on the father's address, the volume of the music, and the timing of the party, the outcome on his "strands" approach most likely would, and certainly could, have been different.
Given the illogicalities of reaching the factual findings which make up three of those strands, and having regard to the minor nature of the discrepancies as to the date of the party, I would uphold Ground 2 of the appeal.

Ground 3

For the third ground of review, the appellant posited that the primary judge erred by not determining, at [56], that the finding of the second respondent at [48] of the Authority's decision was irrational.
At [131] and [135] of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Crennan and Bell JJ said: … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. … 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 to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
The first respondent submitted that the Authority's findings were reasonably open on the evidence and when read as a whole, "discloses an evident and intelligible basis for its decision".

Consideration of Ground 3

I am mindful that the appellant has had to give his version of the central narrative on three separate occasions in the last ten or so years, and that the Court is to remain conscious of the challenges asylum seekers face in giving multiple accounts of why they fear persecution, often over the course of many years (AVQ15 at [28]).
Given my findings on Ground 1, the logical outcome is that the primary judge erred in not regarding the decision of the Authority in [48] of its decision as irrational. The four stated aspects, even considered "cumulatively", could not rationally have led to the wholesale rejection of the central narrative of the appellant. I repeat my conclusions above as to the minor nature, in the overall contentions of the appellant's story, of the discrepancy as to the date of the party, and the illogical nature of the reasoning as to the other three aspects of the "four strands". I do not regard the Authority's conclusion (at [48]) that: When considered cumulatively, the above evidence leads me to have doubts about the credibility of the applicant's central claim in this application.
Accordingly, the appellant succeeds on Ground 3.

Orders

The appeal is allowed. The orders of the Federal Circuit and Family Court of Australia should be set aside, and in lieu thereof, it should be ordered that the decision of the Authority be set aside and the matter remitted to the Authority (differently constituted) for redetermination according to law.
The first respondent should pay the costs of the appellant before the primary judge, and the costs of this appeal. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.

At a glance

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Judgment (23 paragraphs)

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Cases Cited (24)