FEP19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 737

1. The wife's evidence at Transcript page 23, lines 14-30 reads:

TRIBUNAL: Sorry. How regularly would you undertake instructions?

INTERPRETER: Well, I do not now remember when and how, but whenever we had the occasion we used this card to get in touch with daughter and son-in-law.

TRIBUNAL: But you don't know how often that was?

INTERPRETER: One some occasions it may be or some - for some period it may have been maybe once a week or once every two weeks, but it was not known - it was not regular or not.

TRIBUNAL: So between 2010 until you left Iran, it was - that was the pattern. It might have been once a week, it might have been once every two weeks. It might have been - was that pattern constant?

INTERPRETER: Yes. But I must say that it was in secret.

1. The applicants contend that the Tribunal's second question was a vague proposition. However, that is not self-evidently true and is an invitation to conduct merits review.
2. Another inconsistency raised was that the first-named applicant said their contact was only with their daughter and son-in-law, while the second-named applicant said they had contact with their daughter or with people they had met at gatherings [70].
3. The transcript of the first applicant's answer states (transcript page 21, lines 27-35):

INTERPRETER: In 2015, our study via Skype increased.

TRIBUNAL: To how frequent?

INTERPRETER: It was two, three times a month.

TRIBUNAL: Just with your daughter and son-in-law?

INTERPRETER: Yes.

1. The transcript of the first applicant's answer states (transcript page 24, lines 5-13):

TRIBUNAL: Okay. And did you have any other kind of contact with other Jehovah's Witnesses outside of Iran or was your contact only with your daughter and son-in-law?

INTERPRETER: No, I was in contact with Jehovah's Witness on the doors. There was Witness whom I met as a guest or in congregations when I went to Holland and the congregations or gathering that my daughter and my son-in law took us and in Australia, also only people whom I met being gatherings.

1. The first respondent submits that the Tribunal's interpretation of the evidence was open to it despite the applicant's characterisation of the evidence.
2. The Tribunal noted the inconsistency about the evidence from the Netherlands couple stating they had communication with the applicants via WhatsApp, Telegram and Skype, whereas the applicants never referred to receiving instructions from WhatsApp and the letter of support never mentioned these Dutch witnesses. The applicant's submissions do not seek to deny the differences in evidence but downplays the significance of them. This assessment is a matter for the Tribunal. The Tribunal did not solely rely on these differences, however the differences in that evidence when viewed alongside other matters, meant the Tribunal was justified in taking it into account.
3. As to the implausibility noted in the Tribunal's decision at [73], it is submitted that the Tribunal's point was that it was "implausible" that someone genuinely converting faiths would do so based on the method used by the applicants rather than receiving scripture via other apps. The applicant's submission that suggests that they could have used other means of receiving the scriptures is to ascribe a greater knowledge of the use of technology than they had. However, that submission does not show that another reasoning was not open to the Tribunal. The Tribunal's reasons at [73] did not impute a degree of significant technological understanding to the applicants, it would have been open to their daughter and son-in-law to have explained to them these other apps.
4. Particular (b) (iii) states:

[T]he Tribunal at [74]-[75] expressed concern about the timing of the applicants' claim for protection in Australia, when their son had recently told a cousin in Iran about his conversion, in a manner that was irrational and failed to consider evidence.

1. The Tribunal's reasoning was that it did not believe that the applicant's son had himself converted to Christianity, as the evidence of any argument with his cousin was not genuine, as it was the basis of the sons claim to protection in Turkey. As to this point, the Tribunal's reasoning was entirely open to it.
2. Particular (b)(iv) states:

[T]he Tribunal at [77] regarded the failure of the applicant's son to make public Facebook postings of his and the applicant's participation in the Jehovah's Witness faith as being adverse to the applicants in circumstances which were irrational.

1. The applicant's submission does not engage with the reasoning of the Tribunal. The Tribunal took issue with material that had been provided to it on the condition of being publicly available when it in fact was not. The Tribunal could reasonably rely on this, along with other circumstances to doubt the credibility of the applicants. The applicant's submission at [23] seeks to downplay the issue posed without demonstrating that it was not open to the Tribunal to consider this adversely to the applicants among other matters.

1. With respect to credit findings, it is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]. Therefore, a Court undertaking judicial review, should exercise caution before finding that adverse credibility findings by the Tribunal are arbitrary, irrational and lacking in evidentiary foundation. Further the Court must exercise great care not to undertake impermissible merits review.
2. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, the Court concluded at [131] that it was insufficient that different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:

... Must be to ask whether logical or rational 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 reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.

Further, in considering the reasons of the Tribunal, it is important not to look too closely at them in pursuit of error. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:

The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications. ..Its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.

1. That said, this Court is bound to consider the reasons of the Tribunal where the outcome of the matter revolves around adverse credit findings with care, so as to ensure those credit findings are not based on "minor inconsistencies and trivial errors" and have "logical and probative weight". This must be done however, without the advantage of assessing the demeanour of the witnesses giving evidence, noting however that in this case a transcript of the Tribunal's hearing has been made available to the Court.
2. In this matter, the applicant relies on a number of findings, each of which it is said was without evidentiary or rational basis for the finding. In EVI19 v Minister for Immigration [2022] FCA 51 at [36] Stewart J had the following to say:

It is well established that credibility findings are not immune from judicial review; GCQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 253 FCR 496 at [37] - [38] per McKerracher, Griffiths and Ranjiah JJ. Credibility findings, local 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

1. The applicant's claim for protection was on the basis they had converted from Islam to the Jehovah's Witnesses faith. On that basis, they claimed they were at risk of persecution if they were to return to the home country of Iran.
2. This conversion is in circumstances where the applicant's daughter converted to the Jehovah's Witness faith in the Netherlands in 2006 and successfully applied for asylum there. It is also the case that the applicant's son has also claimed he has converted to the Jehovah's Witness faith and has sought asylum in Turkey.
3. Particular 1(b)(i) complains that the Tribunal was concerned at [67]-[68] that the applicant's did not appear to have undergone a "journey of faith" in which they explored humanism or other religions, or even other branches of Christianity. However, in doing so the Tribunal cautioned itself that that there may be several paths that one can take to finding a new religion. The applicants complain there was no evidentiary or rational basis for this finding.
4. The Court does not accept this submission. The Tribunal noted that the applicants had been introduced to the Jehovah's Witness faith by their daughter when they visited her in the Netherlands. This was in circumstances where she had successfully applied for asylum due to her conversion. This entitled the Tribunal to have some scepticism as to the true nature and reasons for any conversion by the applicants. The caution noted by the Tribunal, that there may be many paths one can take to finding a new religion, indicates that this factor alone was not sufficient to reject the applicant's claims. The commentary by the Tribunal does not evidence irrationality and the Court is satisfied there was an evidentiary basis for the finding. This particular has no merit.
5. Ground 1(b)(ii) complains that the inconsistencies and implausibility's about the frequency of religious instruction received remotely while the applicants were in Iran was based on a misrepresentation of the evidence and the findings were made without any evidentiary foundation.
6. The evidence given to the Tribunal by the applicants is set out above. The applicants submit their evidence was so uncertain so that it could not be said to be inconsistent with each other. The respondent says this is a blatant invitation for the Court to undertake impermissible merits review.
7. Where a claim is made that there is no evidentiary foundation for an adverse credit finding, this of necessity requires the Court to consider and evaluate the evidence in order properly consider the claim and determine if the finding is rationally made and based upon facts having logical and probative weight. In so doing, the Court does not undertake merits review: CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [37]- [38].
8. The Tribunal hearing took place in 2019. Both applicants were asked to recall details of the frequency of religious instruction they received from their daughter during the period 2008-2010, and then after that until 2016. The Tribunal was also concerned as to variations in the methods by which this communication took place. That is, was it via Skype or another communication application?
9. Firstly, the Court does not consider any inconsistency in relation to the precise method by which this communication took place to be off any moment. The respondent concedes that the Tribunal was entitled to act upon "common sense" and "a reasonable appreciation of human experience": Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane 274 CLR 398 at [20]. In the Courts view, given the multiplicity of methods of electronic communication now available, any inability to remember over several years what particular app was used at a particular time (be it WhatsApp, Telegram Signal or some other method) is not a matter of inconsistency, but rather a reasonable incapacity of people aged in their late 50's to recall. This is consistent with the Courts appreciation of human experience noting the constant and rapidly increasing availability of different methods to communicate via the internet.
10. Secondly, the Court does not consider any imprecision as to the frequency, over the period of time involved, as to contact with their daughter and others to be of particular moment. Indeed, if the applicant's recollection was entirely consistent, this might point to collusion as to the evidence they were going to give.
11. At [73], the Tribunal takes issue with the claim that the applicant's daughter held up scripture passages to the screen for her parents to see while giving then religious instruction, when such documents could have been sent via encrypted means over WhatsApp and telegram and then deleted later. The applicant's advisor claimed the applicants were unfamiliar with the use of and the names of these applications. The Tribunal suggested that applicants could have been taught how to use the applications via Skype or even in person when visiting the Netherlands or Australia.
12. Again, such a finding makes an underlying assumption as to the computer literacy of the applicants and the witnesses' knowledge of the security of sending documents via an encrypted means to Iran. The fact that the applicants did not follow a procedure that the Tribunal Member would have followed in their circumstances, does not of itself mean that the account of the applicants is implausible, such that their account is not credible. It may simply mean that the Tribunal Member has a much greater knowledge of the use of apps that offer encryption facilities to secure transmissions between users than the applicants and witnesses.
13. In the Court's view, the inconsistencies relied upon by the Tribunal member to base a conclusion that adverse to the applicant's credit and were fabricating their evidence does not have an evidentiary foundation.
14. Noting that the conclusion of the Tribunal member was based on intermingled credit findings, including particular 1(b)(ii), the Court is satisfied there is jurisdictional error. The Court is also satisfied that the error was material in that there is a reasonable possibility that the decision could have been different but for the error.
15. While not strictly necessary to do so the Court will make some brief comments on particulars (iii) and (iv).
16. The timing of the son's disclosure of his parents' conversion to the Jehovah's Witness faith to his cousin, at a time when the applicants were in Australia and could claim protection, is a matter in the Court's view, that was open to the Tribunal to form an adverse view upon as to the applicant's credit. It was not an irrational finding.
17. Similarly, the finding at [77] as to the applicant's sons Facebook page and the content of its private verse's public pages, is a matter that the Tribunal was entitled to make an adverse credit finding. While another decision maker may have come to a different rational conclusion using another reasoning process, the Court is satisfied that the conclusion arrived at by the Tribunal was a conclusion open to the Tribunal, on the evidence before it, and for the reasons it gave.

1. The Court grants the orders sought in the origination application and remits the matter back to the tribunal for further consideration. The Court will hear from the parties as to costs.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.