EOC20 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 790

Federal Circuit and Family Court of Australia

(DIVISION 2)

EOC20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 790

File number(s):

SYG 339 of 2022

Judgment of:

JUDGE LAING

Date of judgment:

28 September 2022

Catchwords:

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority affirming decision not to grant a protection visa – whether the Authority failed to consider integers of the applicant’s claims – whether findings were legally unreasonable, illogical or speculation – whether the Authority failed to consider properly the evidence before it – whether the Authority made unwarranted assumptions about the applicant’s military service – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 91X, 473DD

Cases cited:

CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493

S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

19 September 2022

Counsel for the Applicant:

Mr G Schipp

Solicitor for the Applicant:

Sydney West Legal and Migration

Counsel for the First Respondent:

Mr N Swan

Solicitor for the First Respondent:

Mills Oakley

Counsel for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 339 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EOC20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	28 September 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING

introduction

1. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (the IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   background

2. The applicant is a citizen of Iran, who arrived in Australia as an unauthorised maritime arrival in April 2013.

3. In March 2017, the applicant plead guilty to importing a marketable quantity of a border-controlled drug in NSW. He was sentenced in August 2017 to 6 years’ imprisonment with a non-parole period of 3 years and 6 months.

4. On 22 June 2017, the applicant lodged an application for a protection visa. At the time of the application, he was being held in Long Bay Correctional Centre.

5. On 10 July 2018, the Delegate refused to grant the applicant a protection visa. The matter was referred to the IAA for review of the Delegate’s decision.

6. On 6 December 2018, the IAA affirmed the Delegate’s decision (the first IAA decision).

7. The applicant was released from prison in October 2019, and transferred to Villawood Immigration Detention Centre.

8. On 26 November 2021, this Court set aside the first IAA decision and ordered that the IAA review the Delegate’s decision according to law.

9. On 11 February 2022, the IAA affirmed the Delegate’s decision refusing the grant of a protection visa.

   the iaa’s decision

10. The applicant’s representative provided submissions and a number of supporting documents to the IAA. The IAA was satisfied that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to the following new information:

    (a)a new claim that the applicant was at risk due to a breach of s 91X of the Act and supporting documents (at [12]-[14]);

    (b)a new claim regarding the applicant’s involvement with the Australian Defence Forces (ADF) – Defence Community Dogs program and supporting documents (at [15]-[17]);

    (c)reports from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) (at [18]-[19]); and

    (d)an updated country information report from the Department of Foreign Affairs and Trade (DFAT) (at [22]).

11. The IAA considered that the requirements of s 473DD of the Act were not met in respect of the following:

    (a)a new claim that the applicant would be unable to obtain treatment for his PTSD in an Iranian prison. The IAA did not accept that this claim could not have been raised before the Delegate or that it could have affected the Delegate’s decision in circumstances where the Delegate had not accepted that the applicant would be imprisoned. The IAA was not satisfied that exceptional circumstances justified consideration of this new information (at [20]); and

    (b)images of the applicant whilst he was in the Iranian army. The IAA declined to consider this information, in circumstances where there was no dispute that the applicant had been in the Iranian military (at [21]).

12. The IAA made the following findings in relation to the applicant’s claims:

    (a)Fear of harm as a person who escaped military service: The IAA considered that the applicant began his military service when he turned 18, and not at a date some months earlier as had been claimed (at [38]). The IAA accepted that “the applicant attended his compulsory military service in 2009” and that “his service coincided with Green Movements protests” (at [57]). However, the IAA had concerns regarding the credibility of the applicant’s other evidence relating to his military service in Iran, including:

    ·a claim that he returned to his father’s home after running away from the military a second time, despite claiming that it was his father who reported him after he first escaped military service (at [40]);

    ·a claim that the applicant evaded the military police for over two years despite otherwise coming to the adverse attention of the authorities (at [42]-[43]). The claimed role of his family during this period also sat uneasily with other information he had given regarding his family (at [42] and [44]);

    ·a translation of a purported summons in the applicant’s name. The applicant had given inconsistent evidence regarding the issuance of summonses and the summons that he had submitted appeared irregular and inconsistent with country information (at [45], [47] and [49]-[50]). The timing of certain actions suggested in his written claims was also considered to be implausible (at [46]).

    The IAA was additionally troubled by inconsistent evidence the applicant had given at his entry interview (at [52]-[55]). The IAA expressed its conclusions in relation to the applicant’s military service at [58]-[59]:

    58.… I accept that the applicant may have witnessed the Iranian authorities shooting at civilians during Green Movement protests and has been genuinely impacted by those events. However, having considered the evidence before me, I do not accept the applicant was directly involved or ordered to quell or shoot at Green Movement demonstrators as part of his military service. I do not accept he deserted his military service and I do not accept the remainder of his claims in this regard. I am satisfied he completed his military service… I do not accept he departed Iran on a false passport, and I am satisfied he departed Iran on a genuine passport.

    59.I am not satisfied the applicant has a well-founded fear of persecution in relation to these claims.

    (b)Adverse interest to authorities due to other incidents: The IAA accepted that “the applicant was stopped and potentially even detained for a short period for playing music in his car loudly and walking with his girlfriend and for being found with alcohol on his breath, and possibly mistreated during his detention but then released” (at [66]). However, it did not accept that he was charged or penalised in relation to these incidents, nor that he was charged, convicted and penalised for alcohol consumption. Consequently the IAA did not accept that the applicant had a record with the Iranian authorities in relation to these incidents, and was not satisfied that the applicant remained of adverse interest to the Iranian authorities. The IAA did not accept that the applicant would face a real chance of harm on this basis (at [66]-[67]). Nor did the IAA accept that the applicant faced a real chance of harm relating to future alcohol consumption, in circumstances where the applicant had advised that he no longer drinks alcohol (at [68]).

    (c)Religious and political beliefs and renunciation of Islam: The IAA accepted that the applicant stopped believing in or practising Islam at the age of 18 or 19, and that he holds a political opinion against the Iranian government (at [71]). However, the IAA considered that there was no evidence suggesting that the applicant had an interest in publicly promoting his religious or political opinion. The IAA was not satisfied that the applicant would do so or that he would avoid doing so due to a fear of persecution. The IAA was not satisfied that the applicant would be imputed with an opinion against the regime because of his “western values and appearance”. This claim was belatedly made and “presented in an overly general manner”. The IAA was not satisfied that the applicant would face a real chance of harm in Iran on the basis of his religious and/or political opinion (at [75]).

    (d)Fear of harm based on Azeri ethnicity: The IAA accepted that the applicant was of Azeri ethnicity. The IAA noted that the applicant had not claimed to be involved in any political activities regarding his ethnic group. Given this and the fact that the applicant had not raised any claims to fear harm on the basis of his ethnicity, the IAA was not satisfied that the applicant faced a real chance of harm in Iran on this basis (at [77]-[79]).

    (e)Access to mental health services in Iran: The IAA considered there were adequate mental health services that would be accessible to the applicant. The IAA was not satisfied that the applicant would be denied such access, nor that he would be harmed in Iran because of his mental health condition (at [80]-[81]).

    (f)Fear of harm on the basis of criminal record in Australia: The IAA accepted at [83] that the applicant was convicted of a drug offence in 2017 and sentenced to imprisonment. The IAA did not accept the applicant’s claims that his criminal record in Australia was accessible on the internet via Google search (at [85]). The IAA was also not satisfied that there was a real chance of the applicant being re-prosecuted in Iran, or that the applicant would face any harm in Iran because of his criminal record in Australia (at [90]).

    (g)Risk of harm due to s 91X data breach: The applicant submitted that he would be at risk of harm from the Iranian authorities as a result of a ‘data breach’. This involved a Federal Circuit Court judgment in respect of the applicant’s protection application being published with a compromised pseudonym and accessible between February and October 2020. In this regard, the IAA observed that the applicant’s personal information linked to his pseudonym had only been accessible via Federal Law Search for a limited period of time, if a particular methodology of searching was employed (at [94]). The IAA stated at [95]:

    95.I have not accepted the applicant’s claims regarding his military desertion or that he departed Iran on a false passport. I am not satisfied the applicant had an adverse profile with the Iranian authorities at the time he left Iran. There is also no credible evidence the Iranian authorities are aware the applicant is in Australia, or even if they were, that there is a real chance they would have been aware he had an application before the courts in Australia such that they would have searched his name during this period (or generally) on this website. The applicant has not provided any country information in support of the assertion that the Iranian intelligence agencies monitor sources of concentrated information such as is available on to identify dissident activities amongst failed asylum seekers. The applicant has not provided any other credible evidence the Iranian authorities did access his information and, therefore his protection claims, and I do not accept they did. I am not satisfied the applicant will face a real chance of harm from any group or person because of this data breach.

    (h)Involvement with ADF: The IAA accepted that the applicant was involved in the ADF – Defence Community Dogs program whilst in prison. However it considered there was no evidence to indicate that the Iranian authorities were aware of this. The IAA was further not satisfied that the applicant would face any harm if the authorities became aware of this. The IAA was “not satisfied the applicant will face a real chance of harm from any group or person in Iran because of his involvement with this program and/or continued friendship with ADF personnel” (at [96]-[98]).

    (i)Failed asylum seeker from a non-Muslim / western country: The IAA found that if the applicant were to return to Iran, it would only be on a voluntary basis (at [100]. It accepted that the applicant no longer had his Iranian passport (at [101]). Referring to country information, however, it considered that the applicant may be able to obtain a laissez-passer from an Iranian diplomatic mission. The IAA did not accept that the applicant would be imputed with an anti-government opinion on this basis, or otherwise face a real chance of harm as a failed asylum seeker on return (at [105]-[108]). The IAA stated: 

    105.DFAT’s 2020 report states that those who return on a laissez-passer are questioned by the Immigration Police at Imam Khomeini International Airport in Tehran about the circumstances of their departure and why they are traveling on a laissez-passer. Questioning usually takes between 30 minutes and one hour but may take longer where the returnee is considered evasive in their answers and/or immigration authorities suspect a criminal history on the part of the returnee. Arrest and mistreatment are not common during this process. The treatment of returnees, including failed asylum seekers, depends on the returnees’ profile before departing Iran and their actions on return. DFAT assessed that, unless they were the subject of adverse official attention prior to departing Iran (e.g. for their political activism), returnees are unlikely to attract attention from the authorities, and face a low risk of monitoring, mistreatment, or other forms of official discrimination…

    107.Should the applicant return on a laissez-passer, I accept the applicant will very likely face a brief period of questioning on return to Iran. I am not satisfied the applicant was of adverse interest to the Iranian authorities prior to his departure for any reason. There is no evidence the authorities are aware of his criminal history in Australia and, regardless, I am not satisfied there is a real chance he will be re-prosecuted or harmed for the offence he committed in Australia. I am not satisfied the applicant has a profile such that there is a real chance he will attract the adverse attention of the Iranian authorities on his return. I am not satisfied there is a real chance he will be subject to prolonged questioning or that he will face a real chance of harm during such questioning for any reason. I also do not consider being questioned for a short period in these circumstances amounts to harm, even considering his mental health issues.

    108.I am not satisfied the applicant will face a real chance of harm from any group or person as a returned failed asylum seeker from a western country or in combination with other aspects of his profile.

13. Having considered the applicant’s claims and made the conclusions summarised above, the IAA found the applicant did not meet the criteria for a protection visa (at [109]-[115]). Accordingly, it affirmed the Delegate’s decision.

    proceedings before this court

14. The applicant commenced proceedings in this Court through an application filed on 16 February 2022. He ultimately sought to rely upon the following grounds, which were annexed to written submissions filed on 1 September 2022.

    The IAA’s decision was made without jurisdiction in that it:

    1.Failed to consider all integers of the Applicant’s claims, and consider his submissions, being that he was a member of a PSG of failed asylum seekers that included persons who have witnessed human rights violations, and have given evidence of those violations and the government’s role in them in a foreign Court. The IAA failed to consider the consequences of being in such a PSG.

    2.        Dealt with evidence impermissibly by:

    a.Unreasonably, illogically, or by way of speculation, found that the Applicant was not required to violently put down demonstrations,

    b.Failed to have regard to corroborative evidence regarding the Applicant’s evidence in the District Court and his mental health,

    c.Improperly considered that consistent statements were not corroborative of the Applicant’s claims.

    d.Erroneously made unwarranted assumptions regarding the Applicant’s enlistment.

15. Leave was granted for the applicant to rely upon an amended application to this effect at the commencement of the hearing, without objection. An amended application containing grounds to this effect was subsequently filed.

    Ground 1

16. Ground 1 contended that IAA failed to consider all integers of his claims to be a member of a particular social group of failed asylum seekers, including witnesses to government related human rights violations who had given evidence of this to a foreign Court. In this regard, I was taken to various parts of the materials demonstrating that claims to this effect had been made.

17. At the hearing I discussed with the applicant’s Counsel, Mr Schipp, that the Tribunal’s decision in this matter did not appear to have turned on whether the attributes claimed by the applicant fell within the definition of a particular social group for the purposes of the refugee criterion. After some discussion, Mr Schipp confirmed that the ground effectively contended that the IAA failed to deal adequately with the applicant’s claims to face harm by reference to particular attributes.

18. For the Minister, Mr Swan submitted that the claims that were made by the applicant in this regard were considered and determined by the IAA. On my review of the materials, this may be accepted.

19. The IAA accepted that the applicant may have witnessed shooting at civilians by the Iranian authorities during the Green Movement protests, although it did not accept that he was directly involved (at [58]). The IAA did not accept that the applicant’s witnessing of these events resulted in adverse interest from the authorities by the time he left Iran, or that he faced a real chance of relevant harm in relation to this claim (at [59], [95] and [107]).

20. The IAA expressly identified the applicant’s claim that that he was “not only a witness to serious human rights abuses, but he has also given evidence about it to the Australian government” (at [91]). The IAA considered the applicant’s contention that the evidence he had given regarding what he claimed to have witnessed may become known to the authorities due to a “s.91X data breach” (at [91]-[95]). The IAA considered that there was “no credible evidence” that the authorities were aware the applicant was in Australia or that he had any application before the courts such that they would have searched for his name during the limited period in which information regarding his application might have been obtained. In this regard, the IAA considered that no country information had been provided “in support of the assertion that the Iranian intelligence agencies monitor sources of concentrated information such is available on to identify dissident activities amongst failed asylum seekers”. As no other “credible evidence” had been provided that the authorities had accessed the applicant’s protection claims, the IAA did not accept that this had occurred. The IAA therefore did not accept that the applicant faced a real chance of harm on this basis.

1. The applicant had also submitted materials to the Department indicating that certain of his protection claims had been disclosed in his criminal proceedings before the District Court. Those materials included a sentencing judgment that referred to his protection claims. However, as was emphasised by Mr Swan, the only claim made that any record of the applicant’s crime in Australia was accessible by the authorities was that this was able to be located through a Google search of the applicant’s name. The IAA did not accept that the applicant’s criminal record was accessible in this manner, noting that the Delegate had been unable to find out information about the applicant and his criminal record on the internet (at [84]-[85]).

2. Within this context, the IAA considered the applicant’s claim to be at risk upon return as someone who would additionally be a failed asylum seeker from Australia. The IAA accepted that the Iranian authorities would be forewarned that the applicant would be travelling to Iran and that the applicant would be questioned on return, as he no longer had a passport (at [102], [105] and [107]). However, after considering available country information, as set out above, the IAA did not accept that this would result in the applicant facing a real chance of harm (at [107]).

3. I do not accept that these findings were premised on any finding that the applicant would behave discreetly, in the manner considered in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473, as was suggested by Mr Schipp. Nor do I accept that the IAA erred by failing to consider the potential for anti-government views or actions to be disclosed through this process.

4. The questioning the IAA appears to have envisaged at the airport was of a limited nature. In this regard, the IAA considered country information indicating that a person returning on a laissez-passer may be questioned, briefly, by Immigration Police “about the circumstances of their departure and why they are travelling on a laissez-passer” (at [105]). The IAA had not accepted that the circumstances of the applicant’s departure involved fleeing on account of adverse attention by the authorities, or on a false passport (at [58]), as had been claimed by the applicant. The IAA had also rejected that the applicant would be interested in publicising his political opinions and had found that he would not seek to do so, for reasons that did not include any fear of persecution (at [75]). Having regard to the applicant’s profile and circumstances, the IAA was not satisfied that the applicant would attract the adverse attention of the authorities on his return or face harm arising from his brief questioning by the authorities (at [107]).

5. The IAA’s findings, therefore, were not premised on any finding the applicant would need to behave discreetly or behave untruthfully during questioning. Rather, they were based on country information regarding the limited nature of the questioning that would occur considered together with what the IAA had found regarding the applicant’s voluntary disinclination to express his political views and the lack of interest in him by the authorities.

6. At [108], the IAA concluded that it was not satisfied that the applicant would face a real chance of harm “as a returned asylum seeker from a western country or in combination with other aspects of his profile”.

7. Based upon the above, I accept Mr Swan’s submission that the IAA considered and made findings in relation to the attributes that were claimed by the applicant to give rise to a real chance of relevant harm (both individually and cumulatively). It follows that I am not satisfied that ground 1 ought to succeed.

   Ground 2

8. Ground 2 contended that the IAA dealt “impermissibly” with evidence.

   Particulars (a) and (d)

9. Particular (a) to the ground contended that the IAA’s finding that the applicant was not required to violently put down demonstrations was unreasonable, illogical and/or speculation.

10. In this regard, Mr Schipp drew attention to country information referred to in the IAA’s decision confirming that the Green Movement protests were ongoing during the period of the applicant’s military service that was accepted by the IAA. The IAA had regard to country information indicating that in response to this movement, the government had dispatched security forces (including the Iranian Revolutionary Guard Corps, Basij units and plain-clothed paramilitary forces) who beat thousands of protestors, arrested hundreds, and killed dozens by snipers (at [37]). Considering this information, the IAA had accepted that the applicant may have witnessed the Iranian authorities shooting at civilians (at [58]). Within this context, Mr Schipp contended that that there was no logical basis for the IAA’s rejection that the applicant had been directly involved or ordered to quell or shoot at Green Movement demonstrators as part of his military service (at [58]).

11. In response, Mr Swan observed that the IAA had made detailed findings at [40]-[57] regarding the credibility of the applicant’s evidence. Mr Swan submitted that the credibility concerns identified in those paragraphs were open to the IAA and were largely unchallenged in these proceedings. Those credibility concerns were capable of informing the IAA’s non-acceptance of the applicant’s claim to have been ordered to quell or shoot demonstrators. The IAA was not obliged to accept any or all of the applicant’s claims.

12. I accept that the IAA’s concerns regarding the applicant’s evidence more generally were capable of forming a logical and intelligible basis for its rejection of specific aspects of the applicant’s claims, such as his claim to have been directed to quell or shoot demonstrators. That is on the proviso that the IAA’s rejection of this claim was otherwise logically open on the evidence.

13. I am not satisfied that the finding was closed, in circumstances where I have not been directed to material before the IAA indicating, beyond question, that all persons undertaking compulsory military service and present at the time had been directed to quell and shoot demonstrators.  I am not satisfied that the information referred to at [37] and [58] of the IAA’s decision goes this far. Whilst a different decision maker may well have reasoned differently in relation to this aspect of the applicant’s claims, that is not the relevant test for error.

14. Moreover, even if I accepted that the IAA erred in not accepting that the applicant had been ordered to quell or shoot at demonstrators, I am not satisfied that the applicant has demonstrated that such an error was jurisdictional (see CRU18 v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493 at [35]-[39]). The applicant did not claim that he faced harm because he had been ordered to quell or shoot demonstrators. He claimed to face harm because he had deserted the army and had otherwise come to the adverse attention of the authorities. The IAA did not accept the credibility of these bases of the applicant’s claims. That non-acceptance did not depend upon its rejection that the applicant had been ordered to quell or shoot demonstrators.

15. Mr Schipp additionally contended that in coming to its conclusion, the IAA made unwarranted assumptions regarding the applicant’s enlistment. Whilst this was relied upon as particular (d) to the ground, Mr Schipp explained at the hearing that it was also relevant to particular (a).

16. The applicant’s complaint in this respect concerned the IAA’s reasoning at [36]-[39]. In those paragraphs, the IAA considered that “[m]ost country information sources” indicated that compulsory military service began at the age of 18. On this basis, the IAA rejected the applicant’s claim that his service began during a month when he would have been only 17 years old and instead found that it would have begun later that year (I have not referred explicitly to the months in question, in case they may provide some means of identifying the applicant). 

17. Mr Schipp contended that this conclusion overlooked the possibility indicated by some country information that although compulsory military service commenced from age 18, voluntary service and conscripts could begin earlier.

18. I do not accept this. The applicant did not claim that he had commenced his military service voluntarily and, to the contrary, had repeatedly referred to his service as having been “compulsory” (CB 5, 12, 14, 174, 188). The qualification in the IAA’s use of the word “most” indicates that the IAA was aware of the different ages that were referred to in the reports that it had cited. It was open to the IAA to rely upon what the preponderance of country information indicated was the age at which compulsory service began. In any event, the applicant had claimed that his military service had begun at age 18 (CB 174 and 375). The IAA’s finding that this was the age at which he had started, in effect, constituted acceptance of this claim. At issue was not the age at which the applicant began his military service, but what this meant in terms of the timeframes that he had otherwise claimed.

19. To the extent that Mr Schipp contended that the question of early service was never raised with the applicant during his earlier interviews, I accept Mr Swan’s submission that this is unable to be confirmed without a transcript. The applicant did not argue that reasonableness required the IAA to make such an inquiry, within the restrictive statutory scheme envisioned under Part 7AA of the Act.

20. Further, and for reasons including those I have given above, I am not satisfied that the applicant has demonstrated that any error in this regard was capable of being jurisdictional. The IAA at [39] “[n]onetheless” accepted that the applicant’s service may have coincided with some Green Movement protests. The IAA accepted that the applicant was present when protestors were shot. The IAA’s rejection of the applicant’s claimed desertion, and adverse attention from the authorities, did not depend on its finding regarding the timing of his service.

    Particulars (b) and (c)

21. Particulars (b) and (c) contended that the IAA failed to have regard to corroborative evidence the applicant had provided regarding his District Court proceedings and his mental health. The applicant contended that the IAA improperly considered that consistent statements were not corroborative of the applicant’s claims.

22. In response, Mr Swan submitted that the IAA did consider the evidence that was relied upon by the applicant in relation to this ground. I accept this. At [56], the IAA observed that the applicant had referred to his protection claims during the proceedings before the District Court and also within the context of his STARTTS psychological assessments. In this regard, the IAA stated that “[a]lthough the applicant has provided a consistent account of his claims in these different contexts, I do not find the fact that he has done so independently corroborative of these claims”.

23. This reasoning was open to the IAA. The materials associated with the psychological assessments and the District Court proceedings appear to have relied upon the applicant’s accounts in relation to his protection claims. Whilst the IAA acknowledged that those materials demonstrated prior consistent statements by the applicant, they were not on the face of them “independently corroborative” (emphasis added).

24. Mr Schipp also relied upon [63] of the IAA’s decision. There, the IAA considered that the applicant had been “somewhat consistent” regarding issues that he faced on account of being found with his girlfriend and alcohol (including in what he had told his psychologist). However, the IAA found that “again” it did “not consider this to be corroborative evidence”. 

25. Reading [63] together with [56], I accept Mr Swan’s submission that in referring to “corroborative evidence” at [63], the IAA was “again” intending to refer to evidence that was independently corroborative. The account the applicant provided to his psychologist was not that. I do not accept that in these paragraphs, the IAA did not understand that the internal consistency of the applicant’s claims was a matter capable of weighing in his favour. The IAA’s acknowledgment of the consistencies in the applicant’s evidence indicates that this was understood and taken into account. However, to the extent that the material relating to the applicant’s mental health and District Court proceedings relied upon the applicant’s reporting, it was not independently corroborative. The IAA did not relevantly err in so finding.

26. In written submissions, Mr Schipp observed that the IAA had accepted that the applicant had mental health issues at [26] of its decision. Mr Schipp submitted that the IAA had “indicated that they were not related to his military desertion”. He posited that if that was the case, “then what are they related to?”

27. I do not accept that the IAA was obliged to answer that question. The IAA was required to make factual findings necessary for its adjudication of whether or not the applicant’s claims gave rise to protection obligations under the Act. The IAA was not obliged to make positive findings regarding the cause(s) of the applicant’s mental health issues, simply because it had not accepted that they were as the applicant claimed.

28. In any event, the IAA accepted at [58] that “the applicant may have witnessed the Iranian authorities shooting at civilians during Green Movement protests and has been genuinely impacted by those events”. It is apparent that the IAA regarded this as a potential cause of the applicant’s mental health issues.

29. For the above reasons, I am not satisfied that jurisdictional error has been demonstrated under ground 2.

    CONCLUSION

30. I have not found that the IAA’s decision was affected by jurisdictional error. It follows that the application before this Court must be dismissed.

31. I will hear the parties in relation to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       28 September 2022