EOT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

ground 1 10 As to ground 1, I was, with all respect, left with the distinct impression that these statements had been honoured more in the breach than the observance by the appellant in relation to the Authority's reasons. It is of course only natural where reasons are given to look to them to understand why it is a particular administrative decision has been made. That after all is the very reason why Parliament has altered the common law so as to provide for an obligation by statute to furnish reasons in this type of case. 11 The purpose of those reasons is primarily to inform the person affected by the decision as to why the decision has been made. They are in no way meant to have the quality of considered reasons for judgment. To expect too much of administrators in relation to the contents of reasons is to make the business of public administration well-nigh impossible. That does not make one an apologist for reasons which expose, truly, jurisdictional error, only a realist in terms of what is sensibly possible in terms of the ordinary standards of public administration. 12 In this particular case, [23] of the Authority's reasons is germane in relation to ground 1. At [23], the Authority states: [23] The submission states the applicant and representative have not yet had time to obtain other information relevant to the applicant's claims but they intend to do so and have already made relevant enquiries. One such matter they intend to address is why the applicant's uncles waited five years after killing his father to seek out the applicant, and the submission provides some alternative possible explanations for this. However while I accept the submission is attempting to challenge assumptions about why the uncles waited five years to come find the applicant, the possible reasons that are given arise from speculation and conjecture. The submission itself notes there is "simply no evidence of the uncle's movements in these five intervening years and it is unlikely that such evidence would become available." No actual details have been provided to describe what "relevant enquiries" have been made or how much time they anticipate might be required to obtain supporting evidence. In any event, it is unclear to me what possible evidence the applicant and his representative are hoping to obtain and from their statements discussed above, I consider this has the hallmarks of a fishing expedition. It has now been more than a month since this submission was made on 28 August 2019. I am conducting this review under the Fast Track regime; I am not satisfied the circumstances warrant delaying my decision for this reason." 13 I respectfully agree. I find it difficult to read [23] of the Authority's reasons other than on the basis that the Authority is dealing with, in the context of deciding whether to seek further information, a claim as to the five year lapse of time between the killing of the appellant's father by his paternal uncles and their seeking out the appellant. 14 That feature of addressing what is sometimes termed an "integer" - or detail - of the claim, as made by a visa applicant, distinguishes the present case from Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, where, by majority, the High Court concluded that an integer of the visa applicant's claim in that case had not been considered administratively. 15 Nonetheless, it was submitted that, even though the Authority had mentioned, at [23], the five year lag, it had failed to consider that claim because of its statement: "… [t]he possible reasons that are given arise from speculation and conjecture". 16 It was that particular criticism, said to amount to jurisdictional error, that exercised the recollection of Wu Shan Liang. The Authority has characterised the reasons given as possible, but nonetheless regards them as having a speculative or conjectural quality. That, in my view, is a description fairly open to the Authority to assign to the submission. 17 Perhaps others would have used different descriptions. But, contrary to the appellant's submission, I do not see that a failure to address whether the submission was plausible, and if so, whether it should be accepted, amounts to jurisdictional error. The description which the Authority has given, as a matter of ordinary English, in acknowledging that the reason provided is possible embraces all that was said to be erroneous. 18 The Authority has done all that it was required to do in respect of the submission arising from the five year lag. It has addressed it, acknowledged that the explanation given is possible, but also formed the view that based, as it is, on no evidence as to the particular uncles' movements over the five year period, it is ultimately speculative and conjectural. So I see no merit in ground 1.

ground 3 19 In light of the keenly discriminating concession made in relation to ground 2, I turn, next, to ground 3 of the grounds of appeal. At [68] of the reasons, the Authority stated: 68 The applicant stated in his Entry interview that he started making arrangement for his travel to Australian around the end of 2011. Yet he stated in his SHEV application that he departed the country on 1 March 2012, and in the SHEV interview he left Iran about 40 days (though he didn't know exactly) after he obtained his passport. I note too that his SHEV application indicates he continued working until approximately February 2012. Overall, the applicant's evidence indicates that he remained in Iran for a significant period of time after learning that his uncle was looking for him and the evidence does not suggest he went into hiding, relocated or took any particular precautions during this time. Nor does it suggest that the uncle or anyone took any further steps to locate the applicant. Given the uncle's claimed interest in finding the applicant and the applicant's claimed frightfulness over the scenario, his ability to remain in Tehran and go about his work during these months leads me to doubt the applicant's and his family's fears for his safety and does not support the claim that his uncle was intent on finding and harming him. 20 As can be seen in the second sentence of [68], the Authority makes reference, apparently in an adverse way in terms of credibility, to a lapse of some 40 days between the appellant's obtaining an Iranian passport and his departure, by air travel, from Iran. 21 The Authority, at [68], accurately set out the effect of an answer which the appellant had given via an interpreter to an officer of the Minister's department when interviewed on 24 January 2016. The exchange was as follows: Question (635) How long after you got you passport did you leave through the airport? Answer (636) About 40 days, about 40 days. I don't know exactly; I don't know exactly. 22 It was common ground that this lapse of 40 days had not featured in an adverse way, either in the reasons of the Minister's delegate, or in the reasons given by the Authority in the earlier decision. Against that background it was submitted that the Authority ought least to have considered whether to exercise its power under s 473DC of the Act to seek information from the appellant as to why he took 40 days to leave Iran after he received his passport. 23 It was submitted that there was nothing in the reasons which indicated that the Authority had turned its mind to so doing and that not at least to consider seeking further information of the kind mentioned, was unreasonable. In support of that submission it was put that in similar circumstances the Full Court had found jurisdictional error in the Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16), at [82], where the Full Court stated: 82 Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. 24 The Minister's reposte to this was that the case was just an exemplar of a situation where the applicant had advanced his case in a particular way, and the Authority was under no obligation to telegraph its thought processes, much less to consider inviting further information from the appellant. The Minister emphasised the following statement made by the Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (DGZ16), at [72]: 72 In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 25 As is apparent from DGZ16, at [70], the Full Court in that case distinguished CRY16 on the basis that: 70 … the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. … 26 This case, as was correctly put for the appellant is one where the Authority has decided a point, which was not decided by the delegate, or for that matter by the Authority on the first occasion of fast-track review. So I do not accept that the fate of ground 3 is governed by the observation made by the Full Court in DGZ16, at [72]. Rather, the facts are not materially distinguishable to those which gave rise to the view in CRY16 that the Authority ought at least to have considered obtaining further information from the appellant. 27 In this sense, I respectfully differ from the conclusion reached by the learned Federal Circuit Court judge. His Honour, however, went on, at [22], to observe by reference to Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA), at [45] - [46], that it was unlikely that anything submitted by the appellant by way of response: "… could have realistically changed the decision of the Authority". 28 Though his Honour did not elaborate further, I take it from his Honour's reference to SZMTA that his Honour was of the view that there were multiple reasons apparent from the Authority's reasons as to why the claims made by the appellant were not regarded as credible. In other words, even if there were error on the part of the Authority in not considering whether to ask for further information in relation to the 40 day lag, the error was not jurisdictional because it could not be regarded as material. 29 This was an alternative submission made by the Minister. The Minister helpfully drew attention to a very recent affirmation by a majority of the High Court in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC) of what was said in SZMTA as to the need for materiality of error to constitute jurisdictional error. 30 I readily accept that there can be cases and the root authority, relevantly, is Stead v State Government Insurance Commission (1986) 161 CLR 141 - where an interplay in relation to credibility is such that a jurisdictional error might make a difference and that the court should not speculate as to what the ultimate outcome, if the jurisdictional error were not present, might be in terms of credibility assessment. 31 The difficulty about that in this case is that there is no interplay, even assuming there is, by the non-answer given in relation to the 40 day period and other bases upon which the appellant's claims were assessed as lacking in credibility. It is quite plain from the detailed reasons given by the Authority in respect of the appellant's claimed holding of a personal green card that having regard to other information concerning the currency and need for renewal of cards of this type (which relate to refugee registration) and replacements for them, that the Authority formed, independently of whatever answer might have been given in relation to the 40 day period, an adverse view of the appellant's credibility, see, generally, [29] - [40] of the Authority's reasons. 32 Yet further, although this intrudes upon ground 4, a fair reading of the Authority's reasons also, in my view, discloses yet a further, separate basis upon which the Authority was unpersuaded as to the appellant's credibility, based on his account of the obtaining of a genuine Iranian passport, albeit one in a false name and with a false birthdate. 33 Accordingly, assuming in the appellant's favour that the Authority was in error in the circumstances in unreasonably failing to consider whether to ask the appellant for information as to why he had delayed 40 days after obtaining his passport and departing, that error could not have been material in respect of the overall assessment of the appellant's credibility. The error was not, given SZMTA and MZAPC, a material one; it was therefore not jurisdictional.

ground 2 34 For completeness, I should add that as to appeal ground 2, I do not in any event consider that the learned Federal Circuit judge misconstrued ground 4 of the amended originating application.

GROUND 4 35 That then leaves appeal ground number 4. Some indication of my view in respect of the fate of ground 4 has already been given. However, in deference to the careful submissions made on behalf of the appellant, it is necessary to elaborate upon those reasons. For that purpose, it is necessary to set out [42] - [45] of the Authority's reasons: 42. I accept the applicant departed through Imam Khomeini International Airport (IKIA). The applicant claims he paid someone to acquire a passport for him from the official authorities under the name [EOT17], showing his date of birth as one year older than his actual birthdate. In the SHEV interview he said he departed through IKIA in Tehran using his forged passport (with his similar but alias name and date of birth), carrying his green card (bearing his own name) hidden in his bag. He was questioned about the risk of carrying his green card and travelling on a passport in a different name and he said he has been scared about the authorities searching his bag on his way out but he had taken the green card with him because his mother thought he might need it. 43. Country information from various credible sources considered by the delegate including DFAT (2016) and the Canadian Immigration and Refugee Board (2006) indicate that contrary to the applicant's claims, people need to present in person to obtain a genuine Iranian passport, and UNHCR has stated that while fraudulent passports can be easily obtained on the black market, they are easily spotted by Iranian authorities with cross-checks against passport issuance records. Information from DFAT (2016) and the Danish Immigration Service (2009) suggests that most Iranians who end up as illegal migrants have left Iran with their original documents and while departure overland through Turkey undocumented is common, as are the use of forged visas or visas obtained through false information, exit from the IKIA with a forged passport would be difficult, although not impossible if bribery were involved. In 2015 DIBP also remarked it would extremely difficult or almost impossible for a stateless Kurd to travel outside of Iran, apart from crossing the border into neighbouring Kurdish territories in Iraq. 44. The department's interviewing officers in the SHEV interview put to the applicant that his description of being subject to minimal security checks didn't ring true with their information about the procedures at IKIA. They also raised with him country information from sources including the Danish and Norwegian (LandInfo) governments indicating it seemed highly unlikely that someone would be able to pass through IKIA on a false passport; the only way would be through the payment of bribes to a number of different individuals along the way; it would be very difficult to leave IKIA on a fake passport. The applicant responded that he knows lots of people (particularly those he knew in Indonesia) who have departed on forged passports and he could put the department in touch with them to learn how they did so. He also said he gave money to the smuggler and maybe the smuggler paid the bribe. He said didn't know, but maybe the smuggler gave them money to make it easier. Earlier in the interview he had also confirmed that he had not himself paid any money to anyone in the Iran airport. 45. I have concerns with the plausibility of the applicant taking the risk of departing through IKIA carrying a fraudulent passport and genuine green card, particularly when he claims he did not even carry it on is person in Iran; his mother kept it for him. Given the country information, I also have difficulty accepting the applicant was able to obtain his passport without fronting up to any authorities and I consider it implausible that he would not know if his exit through IKIA was facilitated through the smuggler's use of bribes. The applicant's departure also highlights a further problem with his claims of being arrested more than ten times and repeatedly interrogated over his lack of documentation and accused of being a spy as country information before the delegate also indicates that outgoing travellers are checked at IKIA against records which would indicate if there were any outstanding issues with the government. It is difficult to accept that a person with the applicant's history of arrests and detention, a suspected spy, would not be flagged in these systems. 36 In effect, it was submitted that there was a non-sequitur as between [44] and [42] - [43] of the Authority's reasons, such that the Authority had failed, in this regard also, to consider an integer of the appellant's claims; in this instance that he had procured a genuine Iranian passport through bribery of a person at the passport office. 37 Yet that very claim is accurately set out in the second sentence of [42]. That very claim is also expressly rejected on the basis of country information considered by the delegate and acted on by the Authority. In the Authority's statement in [43], a conclusion is expressed, based on country information from various credible resources which indicate that, contrary to the applicant's claims, people need to present in person to obtain a genuine Iranian passport. 38 I do accept that the Authority has gone on to consider other scenarios in relation to false passports, namely those which are not obtained at all from a passport office, but via the black market. The Authority looks to have considered these other scenarios for completeness, but its basic finding in relation to the claim of obtaining a genuine passport, albeit one with false details, was a finding of rejection based, reasonably, on the proposition that to obtain such a passport the appellant would have needed to have attended in person at a passport office. 39 In other words, the Authority just did not accept that one could go to the extent of obtaining such a passport through a proxy. There was a basis on the material before it to reach such a conclusion. It is not for me, much less was it for the Federal Circuit Court judge, to engage in some form of merits review in relation to that administration conclusion, based on an argument that bribery might have extended to an ability to obtain a passport by bribing an official to the extent where there requirement for attendance in person was not enforced. 40 In any event, the complaint made is that an integer, namely bribing to obtain a passport, was not considered. The premise upon which that appeal ground is based is just not made out when one reads [42] of the Authority's reasons. 41 What follows, then is that none of the appeal grounds have merit. The appeal must be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.