Federal Circuit and Family Court of Australia
(dIVISION 2)

CAV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FedCFamC2G 201  
File number(s):	SYG 1445 of 2017	
		
Judgment of:	JUDGE MANOUSARIDIS	
		
Date of judgment:	29 October 2021	
		
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Temporary Protection visa – whether Tribunal relied on unwarranted or irrational or unreasonable assumptions in assessing applicant’s claims – application dismissed. 	
		
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 45AA, 476
Migration Regulations 1994 (Cth) reg 2.08F 	
		
Cases cited:	Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 	
		
Division:	Division 2 General Federal Law	
		
Number of paragraphs:	51	
		
Date of hearing:	24 September 2021 	
		
Place:	Sydney	
		
The Applicant:	Appeared in person, assisted by an interpreter, by telephone	
		
Counsel for the First Respondent:	Mr G Johnson, for part of the hearing, by telephone	
		
Solicitor for the First Respondent:	Ms J Strugnell of Minter Ellison, for part of the hearing, by telephone	

ORDERS
	SYG 1445 of 2017	

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
 	
BETWEEN:	CAV17
Applicant
	
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE MANOUSARIDIS	
DATE OF ORDER:	29 October 2021	

THE COURT ORDERS THAT:

1.	The application is dismissed.
2.	The applicant pay the first respondent’s costs set in the amount of $5,600.

THE COURT NOTES THAT:

3.	These are orders of the Federal Circuit and Family Court of Australia (Division 2).

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

Note: This copy of the Court’s Reasons for judgment may be subject to review 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
introduction
1	The applicant, a citizen of Iran, applies for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (Class XD) visa (TPV).
background
2	The applicant arrived in Australia in April 2013. In June 2013 he applied for a Protection (Class XA) visa. By the operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth), that application was taken to be, and always to have been, a valid application for a TPV. 
claims for protection
3	The applicant stated his grounds for protection on a number of occasions. It would be convenient if I begin by setting out the claims the applicant made in the statutory declaration that formed part of the application for a TPV. The applicant there claimed as follows:
(a)	The applicant fears harm because he does not believe in Islam; and he does not believe in any religion.
(b)	The applicant refused to complete his military service because he would not take part in Islamic observances which was a requirement.
(c)	The applicant was arrested and targeted by police because he is perceived to be against the ideals of the Iranian regime, he defied the police authorities, he refused to do military service, and he refused to take part in the religious observances during his military service.
(d)	The applicant fears he will be targeted and physically harmed because he is perceived to behave and dress in a way that is against the Iranian regime. In the summer of 2012, while driving with his friend and the applicant’s puppy, the police stopped the applicant, they ordered the applicant out of his car, and three police grabbed the applicant. They told the applicant his music was too loud; they told the applicant to shut up, and that his hair was too long. The police held the applicant down and shaved his hair. After arguing about whether to arrest the applicant, the police decided not to, but they took away his puppy.
(e)	The applicant was jailed for between 7 to 12 days on or about 9 or 10 occasions because he refused to do military service. On one occasion the applicant was imprisoned because the applicant had thrown at his commander a ring his commander ordered the applicant to take off.
(f)	About 18 months before he lodged his application for a TPV, the Basij stabbed the applicant with a hunting knife. This occurred after the applicant refused a direction given by the Basij that the applicant and a small group of his friends that were meeting at a park break up and leave.
4	The applicant gave evidence at the Tribunal hearing that included the following:
(a)	The applicant left Iran and was an atheist who criticised the Iranian government; the applicant continued his anti-government activities on social media since he had left Iran; and the applicant was pro-Shah.
(b)	The applicant was part of an atheist group, some of whom had been executed. The group began at a printing shop where the applicant obtained employment. Before he commenced work at the printing shop there had been a group of friends from the applicant’s military service, but the applicant could not do anything about it because he had run away from military service.
(c)	When at the printing shop that applicant and the atheist group there printed and distributed many flyers in Tehran; but after 45-50 days the government people found them, and two people were arrested. The authorities came to the applicant’s home; but he ran away. The applicant later returned. The authorities came another 2 or 3 times and threatened the applicant’s parents with rape unless they brought their atheist son to them. The authorities shut down the printing shop.
(d)	The applicant was not sure when he left Iran, but it was around 2 to 3 years after his military service.
(e)	The applicant was caught by the Basij and was cut in several places and burnt on his foot by an iron because of his atheism. That occurred when the applicant had gathered with friends in a park. The Basij accused the applicant of being an atheist, and they took the applicant to their base where he was tortured.
(f)	The applicant was no longer an atheist because he began going to church “about six months” before he lodged his application for a TPV.
(g)	The applicant had been arrested for carrying narcotics and was charged, but his father was able to get him out on a bond.
(h)	The applicant did not complete his military service because he was forced to do religious rituals. He was jailed several times. The applicant escaped from his unit after having served 15 months, but he could not recall the date he escaped.
5	In support of his application for review, the applicant provided a letter issued by an ordained senior minister of a church (Reverend). The Reverend said he had known the applicant for some months and introduced him to the truth of Christianity; the applicant is a “soundly converted Christian man who understands the Christian doctrine of grace deeply”; and the applicant is a “regular attender” at church where he participated actively. The applicant also provided a letter of support from another person who described himself as a “Christian ministry apprentice”, who said he met the applicant at a church camp and continued to meet at morning and night church services.
tribunal’s reasons
6	The Tribunal assessed the applicant’s claims under a number of headings.
Religion
7	The Tribunal accepted the applicant attended a Christian church since being in Australia. The Tribunal found, however, the applicant did so “in a deliberate and calculated manner with the sole purpose of establishing a refugee profile”. The Tribunal relied on the following matters:
(a)	The timing of the applicant’s actions. The Tribunal noted that when he arrived in Australia in 2013 the applicant appeared to have had no interest in, and made no inquiries about, religion. The applicant first showed an interest in Christianity after the delegate rejected the applicant’s application for a TPV, and six months before the Tribunal hearing.
(b)	Although the Tribunal accepted there is no standard way for people to reach a religious destination, it is reasonable to believe that a person seeking spiritual comfort may conduct some research into religion, or undertake a religious journey to come to terms with a, or the God, particularly after the person who claims to have converted to religion claimed, as the applicant claimed in his written application, that he was an atheist. 
(c)	The applicant’s claim that he had more Christian friends than Buddhist or Baha’i friends as a means of explaining his attraction to Christianity was vague.
(d)	The applicant’s explanation why he was not attracted to other religions was contradictory. The applicant claimed variously that he looked at other religions but was not interested; he did not conduct any research into Buddhism or the Baha’i faith, but would speak to some of their followers; and the applicant did not really know anyone who followed Buddhism or Hinduism.
8	The Tribunal also did not accept the applicant was an atheist in Iran because the only evidence on which the applicant relied was his own testimony, and the Tribunal found the applicant’s testimony to lack credibility. Further, the Tribunal found that it is difficult, if not impossible, to discern by their actions between people who claim to be atheist, agnostic, or simply non-observant. For that reason, as well as country information which the Tribunal found states it is highly unlikely that Iranian authorities monitor the religious observance by Iranians, the Tribunal was not satisfied that the degree to which the applicant does not observe Islam has, or will cause the applicant to come to the attention of the Iranian authorities.
Military service
9	The Tribunal did not accept the applicant failed to complete his military service obligation, or that he was jailed for refusing military service, or that he was jailed for throwing a ring at his military commander, or that he was caught running away from military service, or that his father paid a fine or bribe. The Tribunal relied on the following matters:
(a)	The claim relied entirely on the applicant’s testimony, and the Tribunal did not accept the applicant to be a credible witness.
(b)	There were inconsistencies and implausibilities in the applicant’s claim. The Tribunal found it lacks credibility that the applicant could not even remember the year in which he escaped from his unit.
(c)	The Tribunal accepted country information that showed that people who are absent without leave (AWL) for more than 15 days without a reason are punished by 6 to 12 months’ imprisonment, or by a 12 month extension of military service, or both, while a draft evader who is arrested is obliged to serve for an additional 6 months, and may be divested of social and civic rights. The applicant, however, appears to have been of nil interest to authorities. The applicant claimed that despite being AWL he was detained and tortured by the Basij without them ever checking or finding he was AWL; and this occurred when the applicant claimed he was arrested on a narcotics charge.
(d)	It lacked credibility that a person who had gone AWL would be able to secure a senior job in a printing company in Tehran.
Interest from authorities
10	The Tribunal:
(a)	did not accept the applicant was ever of any interest to the authorities for anti-government activities, because this claim relied on the applicant’s testimony which the Tribunal found lacked credibility, and because there was a range of other inconsistencies and “implausibilities”;  
(b)	did not accept the applicant discussed the spread of the idea of atheism with like-minded individuals in the military;
(c)	did not accept the applicant found employment in a printing company that contained like-minded atheists who actively sought to print and distribute flyers about atheism, because this would have been an “extremely lucky coincidence”, and also because the applicant did not make such a claim in his written claims;
(d)	found the applicant’s claim that his house was raided and people arrested lacked credibility; the applicant had not previously mentioned this, and the account appears fabricated because of its implausibility;
(e)	found the applicant’s subsequent work and flight lacks credibility; the applicant claimed the printing company was closed for a few days after two people were arrested, but he could not recall when that occurred; the applicant claimed he stayed at home for 20 hours a week and did not work at the printing shop because he had to move around, and then he claimed he did not really work, all of which was inconsistent with his written claims where the applicant claimed he was unemployed for only one month after which he was in a senior position with a printing company; and
(f)	did not accept the applicant was knocked down by the Basij in Tehran for being an atheist, or held and tortured, or that the applicant was with a group in south Tehran that was arrested after he left them, because these claims were based solely on the applicant’s evidence, which the Tribunal found lacked credibility.
Other issues
11	The Tribunal did not accept the applicant is a member of a pro-Shah group. The applicant had not previously mentioned such a claim. The Tribunal also gave weight to the applicant’s having remained in Iran for four years after leaving military before he left Iran without making any attempt to leave Iran to a country such as Armenia where the applicant could gain a visa on arrival and apply for asylum.
Failed asylum seeker
12	Although the applicant did not make an explicit claim based on his returning as a failed asylum seeker. The Tribunal found that, given the Iranian government’s policy is that it will not accept involuntary returnees, the only way the applicant will return to Iran in the reasonably foreseeable future is as a voluntary returnee. Relying on country information the Tribunal found that voluntary returnees are unlikely to attract much interest from authorities amongst the large regular movements of Iranians.
Conclusions
13	In the light of these findings, the Tribunal was not satisfied the applicant met the criteria for the grant of protection visas either under s 36(2)(a) or s 36(2)(aa) of the Act.
course of court hearing 
14	The applicant relies on the grounds of application contained in an amended application that is annexed to an application in a case the applicant filed with the Court on 3 June 2019 he was legally represented. On 29 July 2019 a Judge of this Court granted the applicant leave to file an amended application in the form of the draft annexed to the application in a case. The applicant, however, did not file the amended application. I ordered that the draft amended application be treated as having been filed on 26 July 2019.
15	At the hearing I invited the applicant to tell me why he believed the Tribunal’s decision should be set aside. The applicant said he has other documents in Iran to which he does not have access at the moment, and he does not know how to get them. The applicant said that when in Iran he was pursued by the government and tortured; and he did not know he would need those documents to present to another court in another country. The applicant then made a number of claims about what he did in Iran. I asked the applicant whether he wished to say anything about the matters raised in the amended application, but the applicant said he was not aware of what the amended application is, but it should be the same, because he never said anything apart from what he is saying now, and if the amended application is different, it is not the truth. I informed the applicant that it is not that the amended application is different from anything the applicant may have said; I told the applicant that the purpose of the hearing was for me to determine whether the Tribunal reviewed his case according to law, and the grounds in the amended application are directed to that question.
16	I then invited counsel for the Minister to make submissions. Counsel addressed each of the grounds stated in the application; and I am satisfied counsel did so in sufficient detail and clarity to communicate to the applicant the grounds contained in the amended application, and the reasons on which the Minister relies for submitting those grounds are not made out. The applicant then commenced making submissions in response. At 1:20 pm the hearing was adjourned to 4:00 pm because it could not be completed in the time for which the interpreter had been engaged. The hearing resumed at 3:38 pm because the interpreter had become available again by that time. The applicant, with the assistance of the interpreter, completed his response to counsel’s submissions. 
17	All of the submissions the applicant made were directed to the merits of his claims for protection, or to documents the applicant claimed were in Iran but which were not before the Tribunal. These are not matters that are capable of disclosing any jurisdictional error by the Tribunal.
Grounds of application
18	The amended application contains three grounds of application. 
Ground 1
19	Ground 1 is as follows:
The Second Respondent (Tribunal) [sic] rejection of the Applicant's religious claims based upon an irrational process of reasoning containing unwarranted assumptions.
Particulars
a. 	The Tribunal refuted that the Applicant had converted to Christianity in part by imposing an irrational assumption that a person converting from an atheist to Christianity must “conduct some research into religion or to undertake a religious journey as they try to come to terms with following a, or the God”: D[52].
b. 	The Tribunal's basis for disregarding the following evidence of corroborating witnesses lacked any logical basis at D[54]:
i	a letter by the Reverend . . .  of the . . .  Church, by reason that “he is unaware of the applicant’s lack of credibility and unable to speak to the applicant's motivation for such actions”; and
ii.	a letter written by a Christian ministry apprentice at the University of Sydney for the same reason mentioned above.
20	Paragraph (a) of the particulars does not accurately describe what the Tribunal said. The Tribunal did not say that a person converting from atheism to Christianity “must” conduct some research into religion or to undertake a religious journey as they try to come to terms with following a, or the God. The Tribunal said the following:
Although there is no standard way for people to reach a religious destination, it is reasonable to believe that people seeking spiritual comfort may conduct some research into religion or to undertake a religious journey as they try to come to terms with following a, or the God. Particularly after they claimed to have been an atheist.
21	This does not suggest the Tribunal constituted or regarded itself as an “arbiter of doctrine”. The Tribunal went no further than to rely on a particular generalisation, namely, that people seeking spiritual comfort do so by conducting some research, or by undertaking some “journey” as they try to come to terms with following a, or the God. The Tribunal said there is no standard way for people to reach a religious destination, but it considered that such journey is usually accompanied with some active engagement with spiritual matters. The passage also indicates the Tribunal was of the view that a person who had claimed to have been as committed an atheist would be more likely than a person who had not claimed to be an atheist to manifest some engagement with spiritual matters before embracing belief in God. It was not irrational for the Tribunal to hold and apply such generalisations, because it was open to the Tribunal to believe that such generalisations accord with the common experience of human beings who seek spiritual comfort.
22	Even if it could be said the Tribunal acted irrationally or unreasonably in relying on the generalisations it did, I would not be satisfied this would have been material to the Tribunal’s decision. The Tribunal did not accept the applicant had converted to Christianity for reasons the applicant does not claim were irrational or unreasonable. The Tribunal expressly relied on the applicant’s having claimed to have converted to Christianity only after the delegate decided not to grant the applicant a TPV; on the Tribunal’s assessment that the applicant’s explanation for having converted to Christianity based on his having more Christian friends than Buddhist or Baha’i friends was vague; and on the Tribunal’s assessment that the applicant’s explanation for his not being attracted to religions other than Christianity was contradictory. Additionally, the Tribunal rejected all claims the applicant made that were based solely on the applicant’s testimony because the Tribunal did not accept the applicant was a credible witness.
23	Paragraph (b) of the particulars does not manifest an illogical or unreasonable reason for the Tribunal deciding not to give weight to the letters from the Reverend and Christian ministry apprentice. The letters expressed opinions about the genuineness of the applicant’s Christian beliefs. The weight that could rationally be accorded to such opinions would depend on matters known to the persons who expressed the opinion. In those circumstances it was reasonably open to the Tribunal to find, as it did, that the Reverend and Christian ministry apprentice were not aware of many of the matters of which the Tribunal became aware in the course of the review that were relevant to assessing the genuineness of the applicant’s claimed conversion to Christianity, and for that reason, no weight could be given to those opinions. The basis of that finding is that neither the Reverend nor the Christian ministry apprentice referred to or said anything that might suggest they made any enquiries about the matters the Tribunal identified in its reasons for decision as being relevant to assessing the genuineness of the applicant’s claimed conversion to Christianity. 
24	For these reasons, ground 1 fails.
Ground 2
25	Ground 2 is as follows:
The Tribunal made findings in respect to the operation of the law and law-enforcement in Iran based on unwarranted assumptions and failed to take into consideration relevant evidence provided by the Applicant, which led to the Tribunal rejecting the Applicant's claims.
Particulars
a. 	At D[59] the Tribunal assumed that someone who had not finished their military service would be on an information system that different law-enforcement organisations could access, however the Tribunal made no reference to any evidence or material for that assumption. The Tribunal also failed to consider the Applicant's evidence that contrary to the Tribunal's assumption, that was not how the Iranian authorities operated.
b. 	At D[63] the Tribunal found that the Applicant's claim that his house was raided by the Iranian authorities lacked credibility, in part by imposing a groundless assumption: “I do not accept that Iranian authorities raiding the house ... would simply turn up early one morning and knock at the front door without having made any attempt at securing the other exits to the house, such as the back door”. The Tribunal also failed to consider the applicant's evidence that the houses in Tehran were connected to each other and it was easy to jump onto the roof of the next house.
c. 	At D[71] the Tribunal made a groundless assumption that the bond posted by the Applicant's father for his narcotics charge would mean that if the applicant was found guilty his father's title deed would have been forfeited. However, the Tribunal had no evidence before it, about the nature or amount of the security posted for the bond.
26	Ground 2 may best be approached as making three distinct claims.
Information systems
27	This part of ground 2 is directed to paragraph 59 of the Tribunal’s reasons:
It is reasonable to believe that someone who was AWL from the military would be reported to the Iranian authorities and this noted on information systems. It is also reasonable to believe that a person of military age who had been detained would have his background checked to see whether there were any outstanding legal issues such as warrants against him, and that he had completed his military service. I do not accept that Tehran was so huge that if someone was wanted by one group it didn't mean everyone knew - this was inconsistent with his previous claim during the hearing that his atheist group was found after 50 days because the secret service was powerful in gaining information.
28	Paragraph (a) of the particulars makes two claims. The first is that the Tribunal assumed without any evidence that a person who had not finished their military service would be on an information system that different law-enforcement organisations could access. It is true the Tribunal did not refer to any specific evidence of any information system. The question, however, is whether it was reasonable for the Tribunal to assume there would be such a system; and that question must be assessed by reference to other evidence that was before the Tribunal. Of particular relevance is the country information to which the Tribunal referred in paragraph 57 of its reasons:
Country information indicates that people who are absent without leave (AWL) for more than 15 days without a reason are punished by six to twelve months' imprisonment and/or 12 months extension of military service, while a draft evader is arrested he is obliged to serve for an additional six months and that draft evaders may also be divested of social and civic rights including their right to work, to education or to set up their own business.
29	On the basis of this information, and the Tribunal’s experience of the social world where the use of information systems by governments in organised states is ubiquitous, it was reasonably open to the Tribunal to find it was reasonable to believe that the identity of a person  who was AWL would be reported to the Iranian authorities, and the person’s identify would be noted on information systems that could be accessed by government authorities.
30	The second claim paragraph (a) of the particulars makes is that the Tribunal did not consider the applicant’s evidence that, contrary to the Tribunal’s assumption there would be information systems that recorded the applicant’s being AWL, that was not how the Iranian authorities operated. The ground does not identify where the applicant gave the evidence the ground claims the Tribunal did not consider. The Minister, in his written submissions, identifies the passages in the transcript of the hearing before the Tribunal where the Tribunal raised with the applicant its concerns about the applicant’s avoidance of detection by authorities for being a military service evader. The transcript records the following exchange:
TRIBUNAL: Sorry. I don't- sorry. So you're detained by the Basij, so surely they would have checked your military service completion card. So did you have the military service completion card?
THE INTERPRETER: That day I just got beat up. Nobody asked me about military service.
TRIBUNAL: No. You didn't just get beaten up, you got detained and tortured at a Basij base, so surely they would have done some kind of personal check, to see if there was any outstanding warrant that you had completed your military service, but - so why didn't that occur?
THE INTERPRETER: No. None of that stuff. I just got beat up.
TRIBUNAL: Okay. So you never had a military completion certificate - military completion card?
THE INTERPRETER: I never got a completion military service card from the government, but when I was about to leave Iran, I paid someone money to give me.
31	I do not accept the applicant gave evidence to the effect that Iranian authorities did not maintain information systems that recorded persons who are AWL. Even if the applicant had given such evidence, it was open to the Tribunal not to accept it, and to rely, as it did, on the country information on which it did rely in relation to persons who are AWL.
32	This part of ground 2 fails.
Assumption about procedures on attempted arrest
33	Paragraph (b) of the particulars to ground 2 is directed to paragraph 63 of the Tribunal’s reasons:
His claim that his house was raided and people arrested also lacks credibility. He had not previously mentioned this and the account of the actual raid appears fabricated because of its implausibility. I do not accept that Iranian authorities raiding the house of someone they wanted for distributing anti-Islamic regime flyers would simply turn up early one morning and knock at the front door without having made any attempt at securing the other exits to the house, such as the back door.
34	This reflects the Tribunal’s findings on the claims the Tribunal identifies in paragraph 17 of its reasons:
Around 0530-0600 the authorities came to his house but he ran away. People knocked at the door and he thought it must be authorities and he escaped put [sic] the back onto the roof of the next house. Asked why the security forces weren't aware of the need to cover all the exits and had the back door covered. He claimed they may not look at the next door neighbour's roof. The applicant returned home after two to three hours and the authorities had gone.
35	Paragraph (b) of the particulars to ground 2 claims the Tribunal acted on the unwarranted assumption that persons in the position of the Iranian authorities who had arrived at the applicant’s house with the purpose of arresting him would take no steps to secure other exits to the house. It was reasonably open to the Tribunal to rely on a generalisation that Iranian authorities intent on arresting a person would take reasonable steps to fulfil their intention, and one such reasonable step would be to secure obvious points of escape by the person they intend to arrest. That is what the Tribunal put to the applicant at the hearing, and with which the applicant agreed:
TRIBUNAL: And where did you escape? How did you escape from your house?
THE INTERPRETER: The houses in Tehran were very- like, connected to each other and it was easy to jump from our backyard, go up to the next house, onto the roof of the next house.
TRIBUNAL: All right. So didn't you- wouldn't the security forces also know that and have people posted out the back, just to stop people running out the back? I know it's kind of a basic thing when you go to arrest somebody, you make sure that all the exits are covered, so that you just don't knock on the front door and somebody runs out the back.
THE INTERPRETER: Yes. I understand, but the way those houses are, I mean, they might come and, you know, watch our house, but they don't go to next door's neighbour and check their roof.
36	Paragraph (b) also claims the Tribunal did not consider the applicant's evidence that the houses in Tehran were connected to each other and it was easy to jump onto the roof of the next house. I do not accept that. The Tribunal considered and rejected the applicant’s evidence as implausible, as it was reasonably open to the Tribunal to do so.
37	This part of ground 2 also fails.
Forfeiture of applicant’s father’s deed
38	Paragraph (c) of the particulars to ground 2 is directed to paragraph 71 of the Tribunal’s reasons:
If guilty the father's title deed would have been forfeited. I do not accept that the applicant didn't like to remain in contact with Iran and didn't care about the trial. Given his family's house may well have been sold from under them because of this charge, his lack of any interest in the trial would also represent a complete lack of any interest in the welfare of his family. Instead, I find that his lack of interest and knowledge is because such he was never charged and no such trial was, or will be held.
39	This paragraph is in part based on the claims the Tribunal identified in paragraph 32 of its reasons:
He had been arrested for carrying narcotics and was charged but his father was able to get him on a bond. He was detained for one night then released on his father's title deed. Asked if he had a trial, he claimed he left before the hearing. He was still waiting to hear about the court case but they still came to his house looking for him because of insulting Islam. It was put to him that he could be tried in absentia and it had been four years since he left. He claimed the trial may have occurred but he didn't know. It was put to him if the trial had occurred his father's house would have been seized or the deed returned.
40	Paragraph (c) claims the Tribunal groundlessly assumed that if the applicant were found guilty the applicant’s father’s title deed would have been forfeited. I am not prepared to accept the Tribunal assumed such fact. At paragraph 70 of its reasons the Tribunal referred to country information about trials in absentia. I am not prepared to find that the country information to which the Tribunal referred is silent on the law and practice of the posting of bonds in Iran, and that the country information does not support the Tribunal’s view that the applicant’s father deed would be forfeited if the applicant were to be found guilty of the narcotics charge.
41	In any event, even if I assume the Tribunal’s assumption is groundless, it would not be material to the Tribunal’s decision. The Tribunal did not accept the applicant had been arrested on a narcotics charge because he had not made that claim before the Tribunal hearing; country information showed that judgments are issued in absentia; it is reasonable to believe that, if the applicant had been charged, a judgment would have been issued and served on the applicant’s last known address; and the applicant was unable to say whether the narcotics charge had been heard.
42	This part of ground 2, therefore, fails.
Ground 3
43	Ground 3 is as follows:
The unwarranted assumptions and irrational reasoning of the Tribunal as to matters in Ground 1 & 2 above, has caused the Tribunal to disbelieve and disregard a claim merely based on credibility without any intellectual engagement with the evidence or submissions.
Particulars
a. 	Disbelief of the Applicant on his religious claims and on his claim to be of interest to the authorities for other alleged offences infected the Tribunal's disbelief of the . . .  Applicant being arrested and tortured for being an atheist. At [69] the Tribunal provides no independent basis for rejecting the claim other than a lack of credibility, and fails to consider the claim by engaging in an active intellectual process directed at the evidence and submission.
44	This ground appears to rely on the applicant having succeeded on grounds 1 and 2. I have found that grounds 1 and 2 fail and, for that reason, ground 3 must also fail.
45	The particulars, however, appear to be directed to the Tribunal’s findings in paragraph 69 of its reasons:
I also do not accept that the applicant was knocked down by the Basij in a park in Tehran for being an atheist, held for a few hours and tortured. I also do not accept that he was with a group in south Tehran that was arrested shortly after he left them. Both claims are based solely on the applicant's evidence, which I have found to lack credibility.
46	Specifically, paragraph (a) is directed to the Tribunal’s rejecting the applicant’s claims because it relies only on the applicant’s testimony, and because the Tribunal has found the applicant’s evidence to lack credibility. I therefore take ground 3 to claim it was not reasonably open to the Tribunal to find the applicant’s evidence to lack credibility, and to rely on that finding to reject claims that relied entirely on the applicant’s evidence. So stated, however, I do not accept the claim. 
47	It is apparent from the Tribunal’s reasons, and in particular its recitation of the evidence the applicant gave to the Tribunal, and the Tribunal’s observations and findings of the applicant’s evidence, that there were sufficient instances of evidence which the Tribunal did not accept that rendered it reasonably open to it to find the applicant was not a witness on whose uncorroborated evidence the Tribunal could rely. These included findings that the applicant had made claims at the Tribunal hearing he had not made before he applied to the Tribunal for review; improbabilities based on country information to which the Tribunal referred; and evidence the Tribunal found internally inconsistent and implausible.
48	Ground 3, therefore, also fails.
disposition and costs
49	I propose to dismiss the application.
50	The Minister applies for costs, and an order that those costs be set in the amount of $5,600. The applicant submitted he does not have money with which to meet any costs order. I accept the applicant does not have money to meet a costs order. That, however, is not a reason that weighs against my applying the usual rule that an unsuccessful party, the applicant in this case should pay the costs of the successful party, the Minister in this case. I am therefore satisfied that it is appropriate to order the applicant pay the Minister’s costs. I am also satisfied that $5,600 reflects a fair indemnity of the costs the Minister has incurred in successfully resisting the application, and I propose to order that the applicant pay the Minister’s costs set in the amount of $5,600.
51	I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) does not constitute or continue any court by the name of the “Federal Circuit and Family Court of Australia”.

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

Associate:

Dated:	29 October 2021