Particular (d) - details and plausibility of escape
66 By this particular, the appellant challenges the finding made by Authority that his description of the escape lacked detail and credibility.
67 In respect of the lack of detail, the Authority said that the appellant "provided no description of how he managed to escape from the vehicle, avoid detection or how he got to the bus station undetected". The appellant contends that the Authority misrepresented the evidence in that he was responsive to each of the interviewing officer's questions in his TPV interview. In particular, he provided details, either in that interview or his arrival interview, as to:
(1) the name of the shift soldier who assisted in his escape and opened his handcuffs;
(2) the reason the shift soldier helped him escape, namely that the shift soldier was paid a bribe by the appellant's older brother in the amount of 2 million Toman (around $640 at current exchange rates);
(3) the date of his escape; and
(4) the fact that he escaped from a car transporting him to court and he then went to the bus terminal.
68 The Minister contends that, notwithstanding the appellant having provided these details, he nevertheless provided no details as to how he had escaped from the vehicle while being transported to court and avoided detection immediately thereafter. I accept that is so. However, it is difficult to know how much more detail the appellant could have provided in relation to his escape, and it is to be observed that the interviewing officer did not seek any further information. The appellant was not to know that if he did not give more detail he might for that reason be disbelieved.
69 Given the matters which the Authority considered were scant in detail, the finding as to want of detail is inextricably linked with the Authority's finding that it is:
difficult to believe that even if unhandcuffed due to bribery that he could escape custody on the way to his court hearing from prison and not be apprehended. It is not credible that he could escape in those circumstances.
That is because the mental picture that one conjures up in the mind when told about an escape from custody will differ wildly from person to person depending on the assumptions under which the person is labouring.
70 For example, one might imagine, on one extreme, that the appellant was being transferred under guard by multiple, perhaps armed, officers in a secure vehicle on pre-cleared carriageways. Such a construction of events would of course be based upon certain assumptions about the kind of security that would attach to a person in the appellant's circumstances. If that is the image that is conjured up in one's mind, then the appellant's account of his escape would indeed sound implausible without further detail as to how it is that he managed to escape and avoid detection thereafter. However, those assumptions may or may not be valid.
71 Equally, on the other extreme, one might imagine that the appellant was being transferred under the guard of the very shift soldier that opened his handcuffs in a sedan on busy streets where he could simply disappear into the crowd. On such a construction, which is indeed open on the material, and the assumptions on which it is based, there is nothing implausible about the appellant's account of his escape. If those assumptions are valid, then there could not be much further detail that the appellant could provide.
72 Thus, it is only in light of what the Authority found "difficult to believe" that the finding as to want of detail makes sense. The appellant submits that the Authority made assumptions about the level and competence of security in Iran over prisoners being transferred to court, which assumptions had no evidentiary basis in the country information or in any identified knowledge of the Authority.
73 As submitted by the Minister, a finding that some claim is difficult to believe is a finding that that the claim is inherently unlikely or implausible. The Minister relies on BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [55]-[56] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1 at [39] and [82].
74 In BQQ15, the Full Court (Yates, Wheelahan and O'Bryan JJ) had reason to consider what a finding of implausibility ordinarily entails. With reference to Republic of Nauru v WET040 (No 2) [2018] HCA 60; 362 ALR 235, the Full Court said:
55 … In WET040 (No 2), the High Court observed at [35], in finding no error in a decision of the Refugee Status Review Tribunal of Nauru:
It was to recognise that, when all these matters were taken together, the respondent's version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.
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".
(Original emphasis.)
75 The Minister's reliance on Djokovic at [39] and [82] is presumably to give content to the meaning of "ordinary human experience" as used in WET040 (No 2) and BQQ15. In that case, the Full Court (Allsop CJ, Besanko and O'Callaghan JJ) considered what, if any, evidence was required in order to establish that the presence in Australia of the applicant, a well-known tennis star who had publically stated that he is opposed to being vaccinated for COVID-19, is or may be a risk to the health or good order of the Australian community. The relevant passages relied on by the Minister are the following:
39 … To these considerations should be added as legitimate bases for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department: see generally [Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane [2021] HCA 41; 395 ALR 403] at [17]-[21].
…
82 The possible influence … comes from common sense and human experience: An iconic world tennis star may influence people of all ages, young or old, but perhaps especially the young and the impressionable, to emulate him. This is not fanciful; it does not need evidence. It is the recognition of human behaviour from a modest familiarity with human experience. Even if Mr Djokovic did not win the Australian Open, the capacity of his presence in Australia playing tennis to encourage those who would emulate or wish to be like him is a rational foundation for the view that he might foster anti-vaccination sentiment.
76 In Viane, to which reference was made by the Full Court in Djokovic, the High Court considered the extent of evidence required for certain findings made by the Minister concerning the speaking of English and availability of services in American Samoa and Samoa. Those findings were the subject of successful challenge in this Court and it was common ground that there was no objective evidentiary material before the Minister capable of supporting either finding. In upholding the Minister's appeal, the High Court (Keane, Gordon, Edelman, Steward and Gleeson JJ) said at [17]:
If the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal knowledge or by reference to that which is commonly known. By "no evidence" this has traditionally meant "not a skerrick of evidence".
(References omitted.)
77 The Minister submits that the appellant's narrative of his escape is inherently unlikely to have occurred in the manner alleged and does not accord with ordinary human experience such that it was open for the Authority to find the appellant's account implausible. In considering this submission, it is well to recall that the Authority did not find the entirety of the appellant's account concerning his escape to be implausible. Rather, what the Authority found implausible was that the appellant escaped from custody even if he was unhandcuffed due to bribery.
78 Insofar as the Minister contends that evidence or findings in support of the Authority's impugned implausibility finding are unnecessary because the appellant's ability to escape in those circumstances does not accord with the probabilities of ordinary human experience (BQQ15) or, based on a modest familiarity with human experience, it requires no evidence (Djokovic), that contention should be rejected. Any such finding could not be based on anything more than speculation or conjecture, for it cannot be said that such a finding would be made in accordance with the Authority's personal knowledge or by reference to that which is commonly known (Viane). The primary reason for that is that there is no evidence that the Authority has any personal knowledge of or familiarity with ordinary human experience in Iran.
79 In Hathaway J and Foster M The Law of Refugee Status (CUP, 2nd ed, 2014), the authors discuss (at 140) the dangers of relying on plausibility reasoning in the assessment of credibility as follows:
But decision-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 added; references omitted.)
80 In DQM18 v Minister for Home Affairs [2020] FCAFC 110; 278 FCR 529, the Full Court considered a challenge to a finding made by the Assistant Minister that the appellant in that case could receive support from his two sisters in a refugee camp in Sudan if he were to be removed to Sudan or South Sudan. The majority (Bromberg and Mortimer JJ) made the following relevant remarks:
52 The Assistant Minister has engaged in nothing more than speculation, without a probative basis. There may be some universal, stereotypical assumption (which provides no probative basis) that family members would support one another. However, at best that assumption might mean family members might aspire, or wish, to support other family members. However, even that assumption is full of other assumptions - about the relationships between the appellant and those two sisters, about the conditions in which the sisters live, and in which the appellant might live, about other dynamics in those two sisters' lives, and so forth.
53 None of this is to suggest such fact finding was out of the question. However, it needs a probative basis, and some intellectual engagement that is beyond stereotyping and speculation.
…
57 We accept that in WET040 (No 2) there are several references to human experience, or "everyday" experience, or the like. We also accept that some of those statements occurred in the context of examining arguments about whether a finding was nothing more than speculation. In that case, the Refugee Status Tribunal had concluded that a particular claim made by the respondent was "inherently implausible". The High Court considered, at [35] and [29], that, where "the respondent's version of events … ill-accorded with the probabilities of ordinary human experience", to conclude that the claim was implausible "was not speculative or conjecture. It was a logical deduction grounded in the seeming improbability of the respondent's version of events."
58 However, for the reasons we have given, without some factual basis, or more detailed reasoning, it is not possible to describe the Assistant Minister's reasoning as being based on the probabilities of ordinary human experience. There is no evidence the Assistant Minister was equipped (by any probative material) to assess what "ordinary human experience" in Sudan or South Sudan might look like in any way, let alone in the particular way or circumstances in which a sibling might be able to help or support another sibling. The situation was not that of a sibling arriving into Heathrow airport and having family in a relatively proximate part of the United Kingdom, a developed country familiar to an Australian decision-maker, where it might be said most people have a reasonable standard of living and can access other parts of the United Kingdom, including having reasonable freedom of movement. There was no "popular perception" or "everyday experience" for the Assistant Minister to draw on about Sudan and South Sudan: at least, none which is apparent on the evidence.
(Emphasis added.)
81 The same reasoning applies to reliance on "ordinary human experience" in respect of the finding impugned by particular (d). Without making any findings in relation to, for example, the security oversight of persons such as the appellant being transported to court, whether it was the bribed shift solider or instead a group of officers that were responsible for the appellant's transfer to court, or the effectiveness of bribery in Iran, it is unclear how the impugned implausibility finding could be made by the Authority other than by mere speculation and conjecture. Indeed, it seems to me to be eminently plausible that a person in custody would be able to escape, even in a developed country such as Australia, if those involved in the person's custody were bribed and the person was unhandcuffed.
82 The Minister also relies on country information before the Authority, namely a report by the Department of Foreign Affairs and Trade dated 21 April 2016 (DFAT Report), which states at [2.25] that "Iranian police and security forces exert tight and effective security control over the vast majority of the country" and at [2.29] that the authorities "can take a heavy-handed approach to enforcing security".
83 In my view, the country information does not support the finding of implausibility. It is useful to set out in full the section of the DFAT Report in which the passages relied on by the Minister (but not the Authority) appear:
Security Situation
2.24 DFAT is not aware of any reliable statistics on security-related incidents and violent crime in Iran. There is credible anecdotal evidence that Iran's economic situation has led to some increase in violent crime and theft. DFAT assesses that the number and level of security incidents in Iran is generally low and the country is relatively peaceful and safe.
2.25 Iranian police and security forces exert tight and effective security control over the vast majority of the country. The presence of security authorities is significant in most areas of the country, including in rural areas. Violent crime is usually harshly punished in Iran and this appears to be a significant deterrent.
2.26 Border areas with Afghanistan and Pakistan - in particularly the Sistan-va-Baluchistan Province - are more unstable and likely to have higher rates of violent crime. Areas near the border with Iraq, - particularly Kurdistan, West Azerbaijan and Ilam provinces and Khorramshahr in Khuzestan province - have a heightened security posture following the gains made by Islamic State of Iraq and the Levant (ISIL) in Iraq.
2.27 Terrorist attacks in Iran are rare, though in past years there have been some attacks instigated by members of the Sunni minority in the border areas targeting Shia mosques and local security officials. Embassies and other foreign interests have periodically been the target of protests.
2.28 Iran accords a high priority to the prevention of drug trafficking and general smuggling and devotes significant effort to increasing its security control over border areas. This has led to regular skirmishes between local security forces and drug traffickers in these areas. There are regular media reports of clashes resulting in fatalities among both security forces and smugglers. Overall, Iran is highly sensitive to the security situation in its region and the potential impact that events in its neighbours may have on Iran.
2.29 Some elements of the Iranian security forces, particularly the IRGC and the Basij (a voluntary force under the command of the Revolutionary Guard - see 'State Protection', below), are tasked with monitoring politically-active groups and individuals. Monitoring is also done by the Ministry of Intelligence and Security. Authorities can take a heavy-handed approach to enforcing security if they judge this to be necessary. There can also be occasional morality campaigns to enforce standards of Islamic conduct in which some elements of the security forces are involved. This can include enforcing Islamic dress codes and cracking down on public displays of affection with non-family members of the opposite sex (see 'Groups of Interest', below).
84 As can be seen, the sentences from [2.25] and [2.29] relied on by the Minister appear in a section titled "Security Situation" in Chapter 2. In contrast to the sections of the DFAT Report at Chapter 5 that describe Iran's internal security apparatus, and its structure and oversight, the above-quoted section is primarily concerned to summarise the safety of persons in Iran from terrorism and other forms of violent crime, as well as the safety of persons being targeted for political and religious reasons. The passage at [2.25] says nothing about the security oversight of prisoners being transferred to court. Rather, the sentence plucked out by the Minister is a generalised remark that serves as an introduction to the exposition that follows, which exposition gives the remark content by naming some geographical areas in which security forces have a heightened presence, as well as the kinds of crime and "security situations" that generally attract the attention of the authorities.
85 The Minister's reliance on [2.29] is also taken out of context; it is obvious that the "heavy-handed approach to enforcing security" referred to in that paragraph is intended as a reference to the "monitoring of politically-active groups and individuals" referred to in the previous sentence. It also qualifies this "heavy-handed approach" as being one that is taken "if they [i.e., the security forces] judge this to be necessary".
86 However, even if the sentences plucked out of the DFAT Report by the Minister were of themselves supportive of the Authority's finding, the Authority does not refer to them, let alone engage in any intellectual reasoning in relation to them. Further, the sentences plucked out must nonetheless be considered in light of the country information that contradicts the meaning ascribed by the Minister. That information, which includes other portions of the DFAT Report, discloses that corruption is endemic and that bribery of authorities, including judges, is not uncommon. There is no evidence that the Authority engaged with any of this information.
87 In the result, neither "ordinary human experience" nor country information supports the impugned implausibility finding made by the Authority, namely the finding that, if the appellant paid a bribe such that he was unhandcuffed at the time of his escape, it is implausible that he could have escaped.