AFP16 v Minister for Immigration
[2018] FCCA 1714
•4 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1714 |
| Catchwords: MIGRATION – Application for judicial review of a decision by the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the First Respondent refusing to grant the Applicant a Protection (Class XA) visa – Applicant claimed jurisdictional error and denial of procedural fairness – held no jurisdictional error – held Applicant accorded procedural fairness – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 |
| Cases cited: Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | AFP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 198 of 2016 |
| Judgment of: | Judge Jones |
| Hearing date: | 6 March 2018, 18 April 2018 |
| Date of Last Submission: | 18 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 July 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The Applicant’s application for judicial review filed on
4 February 2016 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 198 of 2016
| AFP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 19 January 2016, affirming the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), made on 8 December 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Tribunal's decision is at Court Book (“CB”) 235-256.
The material before the Court is as follows:
a)
the Applicant’s application for judicial review filed on
4 February 2016;
b)the affidavit of the Applicant filed on 26 March 2018;
c)the Applicant’s Outline of Submissions filed on 26 March 2018;
d)the Minister’s response filed on 5 April 2016;
e)the Minister’s Outline of Submissions filed on 19 February 2018;
f)the affidavit of Aaron Michael Day filed on 16 March 2018;
g)the Minister’s Outline of Submissions filed on 6 April 2018; and
h)a Court Book.
The Applicant was self-represented in these proceedings. At the final hearing of the Applicant’s application for judicial review held on
6 March 2018 (“the 6 March hearing”), the Applicant was assisted by an interpreter in the Farsi and English languages. It was evident at the commencement of the hearing that the Applicant had a good command of the English language and, therefore, after discussing with him his requirements for the assistance of the interpreter, the Applicant agreed that the proceedings would be conducted in English and that he would inform the Court whenever he required the assistance of the interpreter. I explained to the Applicant the nature of judicial review proceedings.
In his application for judicial review filed on 4 February 2016, the Applicant specified his grounds of judicial review as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
At the 6 March hearing, the Applicant agreed that his second ground of judicial review (“Ground Two”) was simply an explanation of steps he had taken to obtain legal representation. In response to the Court’s request that he explain his first ground of judicial review (“Ground One”), the Applicant presented to the Court three documents, which were tendered collectively as “Exhibit A1”. The first document was entitled “Court points”, the second document was entitled “Finil [sic] points” and the third document was entitled “Personal Statement”. The Applicant informed the Court that the “Court points” document was the document that contained all the points he wished to make about the mistakes in the Tribunal’s decision record. The Applicant conceded that the “Finil [sic] points” document simply contained extracts from the “Court points” document and did not need to be considered separately. The Applicant further explained that the “Personal Statement” document was his personal statement about the Tribunal’s decision as a whole. During the course of oral submissions, the Applicant made submissions which appeared to suggest that the Tribunal failed to consider evidence the Applicant gave at the Tribunal hearing(s) which was material or critical to his claims.
Given the Applicant was self-represented and in the absence of any transcripts of the Tribunal hearings held on 4 November 2015 (CB 182) and 4 December 2015 (CB 227), I explained to the Applicant that I would make orders that the Minister transcribe the Tribunal hearings and provide copies of the transcripts to the Applicant and the Court. I informed the Applicant that upon receipt of the transcripts from the Minister, the Court would require him to identify, by way of written submissions, the evidence he gave to the Tribunal which he alleges was not considered by the Tribunal in affirming the decision of a delegate of the Minister (“the Delegate”) to refuse to grant the Applicant the visa. I explained to the Applicant that in his submissions he would need to identify the relevant page(s) of the transcript(s) which contain the evidence he alleges the Tribunal had failed to consider, as well as explaining, by reference to the Tribunal decision, why he said this evidence was not considered by the Tribunal. I was satisfied that the Applicant understood what he was required to do.
On 6 March 2018, I made orders that the Minister file and serve a copy of the transcripts of the Tribunal hearings and that the Applicant file and serve written submissions together with an affidavit attaching a legible copy of the pages of the second and third passports contained in the Court Book. This latter order arose out of the Applicant’s submissions that the Tribunal had made wrong findings of fact regarding his entry and exit out of Iran. Both the Applicant and Counsel for the Minister agreed that the copies of various pages in the Court Book from the Applicant’s passports were not legible. The Applicant had submitted that he had legible copies of the relevant pages from his passports which he had shown the Tribunal at the hearing. Orders were also made that the Minister file and serve further written submissions in reply. The hearing was adjourned for part-heard final hearing on 18 April 2018.
On 16 March 2018, an affidavit affirmed by Aaron Michael Day of DLA Piper Australia was filed with the Court annexing the requisite transcripts, prepared by Auscript, of the Tribunal hearings held on
4 November 2015 and 4 December 2015. The Applicant complied with the orders filing written submissions and a supporting affidavit to which the Applicant annexed copies of his “original second passport pages” and “original third passport page[s]”[1] on 26 March 2018. The Minister filed further written submissions in reply on 6 April 2018.
[1] Affidavit filed by the Applicant on 26 March 2018.
Background and Applicant’s Claims
The Applicant is a male citizen of Iran (CB 8) and applied for the visa on 14 November 2012 (CB 3). The Applicant’s claims for protection are set out in a Statutory Declaration annexed to his application for the visa (CB 36-39). In summary, the Applicant’s claims are as follows:
a)the Applicant is of Persian ethnicity and does not have a religion. His parents and sister remain living in Iran;
b)the Applicant had a friend named “Mr H” who he knew since childhood. When the Applicant was studying in Ukraine, he and Mr H lived together in the school dormitory;
c)in 2009, there was a presidential election in Iran. Mr H was an active member of protests for Iranian rights. The Applicant assisted Mr H by designing graphics for the demonstrations in Ukraine;
d)in June 2009 and February 2010, the Applicant participated in two demonstrations with Mr H. In both instances the Applicant protested in front of the Iranian Embassy. There were people taking video recordings of the protest. The Applicant posted the protests on the internet;
e)in April 2011, the Applicant returned from Ukraine to Iran when his studies were completed and was arrested at the Imam Khomini Airport. The Applicant was interrogated about his involvement in the protests and the riots and was detained for 13 days, during which the Applicant was insulted and asked questions;
f)several months after arriving back in Iran, Mr H contacted the Applicant and requested that he go to his friend who had all the riots on footage in Iran and then pass the footage onto someone to pass back to Mr H. The Applicant refused to do any editing of the footage but stated that he would send the footage to his friend to send to Mr H. Mr H also asked if there was anyone else the Applicant knew in Iran who had any footage of the riots. The Applicant asked his uncle for the footage that he had and then sent that to Mr H. The Applicant had no knowledge of what Mr H’s intention was at the time;
g)approximately three months after this, Mr H informed the Applicant that he was coming to Iran. The Applicant warned Mr H that due to what happened, there was a high risk of Mr H being arrested. Mr H stated that he would be fine and that he was going to arrange for a smuggler from Turkey to bring him. Due to this, the Applicant was really afraid and destroyed all data he had relating to the protests. The Applicant expected Mr H to arrive in two days but had no news from him. The Applicant was then certain that Mr H might have been arrested and that was the reason he decided to flee the country;
h)the Applicant’s intention was never to seek asylum in any country. The Applicant thought if he went to Indonesia and waited for a period to see if everything settled down then he could return to Iran;
i)there is a law in Iran which is called “endangering national security” and because of the Applicant’s anti-government views he would be killed if he returned to Iran;
j)three days after the Applicant arrived in Indonesia, his family informed him that the authorities came to his house to search for any information in relation to the protests. The authorities took the Applicant’s computer case, hard drive, notebook and flash memory (USB stick). The Applicant is certain that Mr H has told the authorities everything and that they are looking for him; and
k)the Applicant fears that if he returns to Iran, the Iranian government will harm him because of his political involvement and footages of the protests that he was involved in.
The Applicant was assisted by a migration agent in lodging his application for the visa (CB 13). In the visa application, the Applicant relevantly said, with respect to his former habitual residence or transit before arrival in Australia, that he resided in Iran from 29 March 1986 to 15 December 2011 (CB 20) and that he resided in Ukraine from
1 September 2003 to 1 April 2011 for the purposes of study (CB 21). The Applicant also said that he visited Turkey from 1 June 2008 to
15 June 2008 and from 1 June 2009 to 1 July 2009, in both periods for the purposes of a holiday (CB 21). In the table requiring a visa applicant to set out his or her previous addresses, the Applicant specified that he lived in Iran from March 1986 to March 2004 and lived in Ukraine from March 2003 to April 2011 (CB 22).
In the standard Form 80, requiring personal particulars for assessment, the Applicant specifies that his travel outside his country of origin before his journey to Australia was to Ukraine from 1 September 2004 to 1 April 2011 for the purposes of study; and to Turkey from
1 June 2008 to 15 June 2008 as well as from 1 June 2009 to
1 July 2009, both periods for the purposes of a holiday (CB 49). The Applicant specified his previous addresses as Iran from March 1986 to March 2004 and Ukraine from March 2004 to April 2011 and Iran again from April 2011 to August 2012 (CB 51).
The Applicant attended two interviews with separate delegates. The first interview was held on 5 March 2013 and the second interview was held on 14 May 2014 (CB 139).
On 1 April 2014, the Applicant’s migration agent provided the Department of Immigration and Border Protection (“the Department”) with various documents, including a “[c]opy of all pages of the Applicant’s two expired Iranian passports” (CB 100-123).
On 8 December 2014, the delegate who conducted the second interview with the Applicant refused to grant the Applicant the visa (CB 136-147). The Delegate accepted the Applicant’s claims that he attended the demonstrations in front of the Iranian embassy in Kiev (CB 140). The Delegate also accepted the Applicant’s claims that he assisted his friend, Mr H, with videos of the demonstrations while in Ukraine and that, therefore, Mr H had knowledge of the Applicant’s actions that could be passed onto the Iranian authorities and be of interest to them (CB 141). However, the Delegate found that the Applicant had effectively concealed these actions. The Delegate did not find the Applicant’s claim relating to further video material being obtained and distributed by the Applicant’s uncle to be credible
(CB 141). The Delegate also did not find the Applicant’s claim relating to Mr H’s arrest and detention to be credible (CB 141).
On 15 December 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision (CB 149). On 8 October 2015, the Applicant was invited to attend a Tribunal hearing on 4 November 2015
(CB 173). On 20 October 2015, the Applicant’s migration agent informed the Tribunal that they no longer held instructions to act on behalf of the Applicant (CB 175).
At the Tribunal hearing, the Applicant submitted a Statutory Declaration dated 4 November 2015 (CB 186-191). At the hearing, the Applicant requested further time to provide evidence to the Tribunal that he did not return to Iran between June 2009, when the presidential elections took place, and April 2011. The Tribunal granted the Applicant this request and allowed the Applicant until 18 November 2015 to provide the relevant information. On 27 November 2015, after being granted an extension of time until 25 November 2015 (CB 196), the Applicant submitted further documents and requested another hearing (CB 198-221). The documents the Applicant provided included copies of extracts from the Applicant’s Iranian passports
(CB 201-219). When providing these documents, the Applicant did not identify which passports were copied and what the extracts from the passports were. It appears that the first passport included in the documents was that issued on 27 July 2006 and which expired on
27 July 2011 (CB 201). It then appears that there are extracts from a second passport issued on 6 August 2003 in Tehran and which expired 6 August 2008 (CB 211-221). The extracts from both passports appear to substantially comprise entry and exit stamps.
The Applicant’s request for a further hearing was granted by the Tribunal on 1 December 2015 (CB 224), which was then held on
4 December 2015 (CB 227).
On 19 January 2016, the Tribunal affirmed the Delegate’s decision to refuse to grant the Applicant the visa (CB 235-256).
Tribunal Decision
Under the heading “CONSIDERATION OF CLAIMS AND EVIDENCE” (CB 239), the Tribunal set out the Applicant’s evidence contained in his two Statutory Declarations, dated 22 October 2012 (CB 36-39) and 4 November 2015 (CB 186-191), and referred to the Applicant’s evidence given during the course of his interviews with delegates of the Department (CB 244 at [34]-[37[).
The Tribunal then proceeded to set out the Applicant’s evidence given at the Tribunal hearings. I will set out the extracts from the Tribunal’s outline of the Applicant’s evidence given at the hearing(s) insofar as they are relevant to the matters the Applicant has raised in his grounds of judicial review.
The Tribunal rejected all of the Applicant’s claims that pertain to past and future persecution, largely on the basis of its adverse credibility findings regarding the Applicant’s evidence. The relevant findings of the Tribunal regarding the Applicant’s claims to fear persecution if he were to return to Iran are as follows (CB 251 at [86]-[89]):
86. Having carefully considered the totality of the evidence, the Tribunal finds that the applicant is not a credible witness. The Tribunal finds that the applicant was never involved or suspected of involvement in any protests in Ukraine or in Iran and therefore he did not take photos or video footage of protest; he cannot be seen in any photos or video footage of protests; and his name does not appear in any photos or video footage of protests.
87. He never made, collected or sent videos or photos from Iran back to Ukraine for [Mr H] to use. While the Tribunal accepts that applicant knows a boy or a name called [Mr H], who was an Iranian living in Ukraine, the Tribunal does not accept that [Mr H] was an actual or imputed anti-government activist. Therefore, the Tribunal finds that the applicant is not of adverse interest to the Iranian authorities by virtue of his association with [Mr H].
88. The Tribunal finds that the applicant has never been, and at present is not, of any adverse interest to the authorities.
89. The Tribunal finds that the applicant has never been detained, interrogated or in any way suspected of or imputed with anti-government views in the past. His house was never raided. His uncle was never interrogated or asked any questions because of the applicant’s activities.
Although the Applicant did not claim specifically that he was at risk of harm in Iran because he applied for asylum in Australia or because he would be returning to Iran from Australia, the Tribunal nonetheless considered these claims. In doing so, the Tribunal considered country information and the Applicant’s evidence, including the Applicant’s claim that he was an atheist and whether this, together with the fact that the Applicant has a tattoo on the right-hand side of his body below his chest of the Charles Darwin “Tree of Life” (“the Charles Darwin tattoo”), would cause the Iranian authorities to have an adverse interest in the Applicant (CB 252-255 at [93]-[117]).
The Tribunal found that although the Applicant may be stopped and interviewed by Iranian authorities, in light of his profile as described above, such questioning or interrogation, without anything more, would not amount to serious harm (CB 254 at [109]). Furthermore, the Tribunal found as follows (CB 255 at [113]-[114]):
113. The Tribunal accepts that if the authorities were to strip the applicant’s shirt and if they were to identify the tree of life tattoo as something originally created by Charles Darwin, the applicant could be imputed with anti-religious or atheistic views, because Charles Darwin questioned the religious concept of creation. As the applicant pointed out at the hearing, the idea that the world was created by God is central not only to Christianity, but to Islam. However, on the evidence before it, the Tribunal finds that the tattoo will remain hidden from view given that it is on his chest. The applicant will not need to engage in any modification of his behaviour in order to hide the tattoo. The Tribunal finds that there is less than a real chance of persecution or real risk of significant harm as a result of the applicant having a tattoo on his chest.
114. In light of the Tribunal’s credibility findings and despite the fact that the applicant has a tattoo of Darwin’s tree of life, the Tribunal finds that the applicant is not an atheist, nor a person who has rejected Islam. As the applicant himself conceded, the fact that he is not practising Islam, without more, will not lead the authorities to impute him with anti-Islamic views nor to view him as an atheist or an apostate. In reaching this view, the Tribunal has taken into account the fact that the applicant lived in Ukraine – a predominantly Christian country – for several years and he was never accused of turning away from Islam on any of his trips back to Iran.
The Tribunal also said that it did not consider that the Applicant’s familial relationship to his uncle would cause the Applicant to be of any adverse interest to the authorities (CB 255 at [115]).
Having assessed the Applicant’s claims both individually and cumulatively, the Tribunal ultimately found that it was not satisfied that the Applicant met the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) (CB 255 at [116]) or that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act (CB 256 at [122]).
Judicial Review
The Applicant’s grounds of judicial review specified in his application for judicial review are set out at [4] above. At the 6 March hearing, the Applicant informed the Court that the “Court points” document (Exhibit A1) elaborated on Ground One, which alleges jurisdictional error and denial of procedural fairness. Consequently, I have decided to approach the Applicant’s grounds of judicial review by considering each of the points raised by the Applicant in his document entitled “Court points” (“the Applicant’s Court Points”). Some of the points are considered individually. Other points overlap in terms of the errors alleged by the Applicant and are considered together.
Point 1
Point 1 of the Applicant’s Court Points is as follows: [2]
[2] Exhibit A1, 1.
1- *page 246/51 & 52
· -had not been questioned about any documents or evidence of the circumstances of how I left Iran
· -My sister got me ticket to Indonesia, who worked in travel agency. She was first person I called.
· -I left work through the middle of my shift and called her
· -I asked work for a week of leave...I may be able to contact work about when I left and the rush I left in
At [51] and [52] of its decision record, the Tribunal said as follows
(CB 246 at [51]-[52]):
51. The applicant claimed that after collecting video footage in Iran, he agreed to send it to [Mr H], but he did not want to do it directly because he was concerned about “internet monitoring” by the Iranian authorities. The Tribunal asked the applicant how he was communicating with [Mr H]. He said by email, but he deleted all the emails when he was in Indonesia. When [Mr H] was arrested he deleted “everything”, including a Facebook profile, videos and pictures, and the computer passwords. He said he panicked and he thought that the authorities will find “all his passwords” and all the information is there. He did not think that he would be going to Australia and seeking asylum. He did not destroy the computer or the hard drive, because he was hoping to go back from Indonesia to Iran. The Tribunal suggested that it may not accept that he intended to go to Indonesia and stay there until things blow over and then he would return to Iran; rather, the Tribunal may find that he was on his way to Australia and Indonesia was a stop-over. The applicant said that the only option he thought he had at the time was to go to Indonesia, because he did not need a visa to go to Indonesia, unlike Ukraine, Turkey, Australia or Western Europe.
52. The applicant said he was communicating with [Mr H] and he told [Mr H] not to return to Iran. He said at one point [Mr H] stopped communicating and responding to the applicant’s emails. The applicant said that it was his uncle’s suggestion to go to Indonesia and the applicant simply accepted it. The applicant was asked when it was that he decided to go from Indonesia to Australia. He said a couple of days later when he heard from his parents that the authorities had visited his family home and his uncle’s home. The applicant said that at the time he did not know what his options were. He suggested to the uncle that they go to the UN in Indonesia and explain what happened. The uncle disagreed with that suggestion and pointed out that they had no proof of their claims. He was asked why when he was trying to decide if he should go to the UN or travel to Australia he did not keep the emails which show that he was connected to [Mr H]. He said that his instinct was to delete everything. The Tribunal suggested that as an educated man he would know that in order to prove his case it would be useful to have proof of his link to [Mr H]. He rejected that proposition; he insisted that at the time he had no idea about the asylum process.
The Applicant’s complaint is that he was not asked for evidence about how he left Iran. There are two points to be made about this.
Firstly, if the Applicant believes the matters he has recited in Point 1 were relevant to his claims, it was his responsibility to give this evidence to the Tribunal. In Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (“SZRTF”), Katzmann J said the following regarding the obligation on a Tribunal to inquire into certain matters (at [26]-[28]):
26. As the plurality emphasised in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (“SZIAI”) at [25], the tribunal’s duty is to review the Minister’s decision. To that end it may seek further information it considers relevant, including by inviting a person to give additional information (s 424). It may require the Secretary to arrange for an investigation or a medical examination (s 427). Generally speaking, however, it has no duty to do either: See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (“SZGUR”) at [22] (French CJ and Kiefel J).
27. In SZIAI the plurality went on to observe (at [25]):
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
(Footnote omitted.)
28. These somewhat cautious remarks indicate that the circumstances in which a duty will arise and jurisdictional error will result from a failure to discharge it, are likely to be “rare and exceptional” (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (“Le”) at [60] per Kenny J).
The matters raised by the Applicant in Point 1 could not be said to be matters which were, in the context of his claims to fear persecution, critical facts.
Secondly, and more importantly, a clear reading of [51] and [52] of the Tribunal’s decision record discloses that the Tribunal was not considering the circumstances under which the Applicant left Iran. Rather, the Tribunal’s focus was on whether the Applicant had any evidence of the emails he claimed to have sent to Mr H and other documents which were relevant to the Applicant’s claims. The Tribunal was, in these extracts, discussing the Applicant’s evidence that he destroyed those documents.
Consequently, I am not satisfied that Point 1 of the Applicant’s Court Points gives rises to any jurisdictional error.
Point 2
Point 2 of the Applicant’s Court Points is as follows:[3]
[3] Ibid.
2- *page 247/55
· -Tribunal statement of how my thought process was in a sarcastic manner, and made assumptions about how I was thinking, and made some statement about sitting with [Mr H] which not based on any information or fact provided by me, not sure where that statement came from !!
At [55] of its decision record, the Tribunal said as follows (CB 247 at [55]):
55. The Tribunal asked the applicant again how it was possible, given that he was not simply present at protests in Ukraine together with hundreds or thousands of protesters, but had in fact been actively supporting [Mr H] in his online activities, he did not think that on return to Iran in 2011 he may be detained and harmed. He said as he had told the Tribunal earlier, namely, that he thought nobody would come to know how he had helped [Mr H]:
When we sit together in this room there is no connection with the outside. Whatever we do here, we are protected. I’m helping you and I don’t know if you’re an active protester or not, but I’m helping you as a friend. And I never think, out of this room, they will be going out of this room. … I’m going [back] to my country and the same thing happens to you [Hamid] and you will tell them [what happened] in the room [where] we were sitting [alone]. … I did not know that [Mr H] will go back.
The discussion recorded by the Tribunal at [55] is taken from the transcript of the first Tribunal hearing held on 4 November 2015.[4] The concern the Tribunal Member was raising with the Applicant at the hearing, which is evident from the questions that followed,[5] was, given the Applicant’s claims regarding his involvement in the protests and other activities in Iran, why the Applicant was not concerned that he may be harmed or at risk of harm when he returned to Iran after completing his studies in Ukraine in 2011. There is nothing in the transcript of the hearing to suggest that the Tribunal Member was speaking sarcastically. As I read the transcript, the Tribunal Member was simply exploring an issue of concern to the Tribunal.
[4] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.52 l.5-47.
[5] Ibid p.53 l.1-p.54 l.14.
Consequently, I am not satisfied that Point 2 of the Applicant’s Court Points gives rise to any jurisdictional error.
Points 3, 5, 6 and 7
Points 3, 5, 6 and 7 of the Applicant’s Court Points are interconnected and revolve around the Applicant’s complaint that the Tribunal made erroneous findings of facts regarding the Applicant’s entry to and exit from Iran on the dates in the copies of the Applicant’s passports the Applicant had provided to the Department. The Applicant also submits that this misunderstanding led the Tribunal to make serious adverse credibility findings against him.
Points 3, 5, 6 and 7 of the Applicant’s Court Points are as follows:[6]
[6] Exhibit A1, 1-2.
Point 3- *Page 248/61-62
· -page 40 of passport. The date is not 6/6/1388 and instead is 26 or 16, stamp is not readable, and so the conversion is wrong (the question in hearing arose which applicant found out the night before of those dates. Didn’t have a chance to investigate this nor were he questions about it) and this explains why my education dates does not match with passports stamps
…
Point 5- *Page 248/65 ·
· Statement that tribunal pointed out that entry and exit stamps is wrong, I bought this matter to their attention, and tribunal was unaware and started writing down dates and asked the interpreter to translate them after I bought this to their attention, he asked me and interpreter to found out dates and translate (all these documents again and again had been scanned and provided to immigration in excellent quality scans and i always tried to cooperate and provide all information needed)
· the tribunal can not find against my credibility on this point as I have repeatedly tried to provide documents as evidence of my travels and I have not tried to hide anything.
· Also it was not denied by me, as i pointed it out, and i was simply unsure about those travel dates and was trying to find out more about that time, not trying to deny it.
Point 6- *Page 249/75
· statement the Tribunal made about the stamps in my passport are wrong, the correct dates are not 19/7/2009, but instead are 23/7/2009 and entry was not 28/8/2009; it actually was 7/9/2009 (based on documents that I have provided)
· Tribunal referred to an unknown date, which is actually known and is 14/6/10 on page 34; passport V series (based on documents that I have provided)
· Tribunal referred to Exit date 26,April,2010, this date is not exist in any of documents, Exit from Iran is unknown because the stamp is on the last passport, which was taken off me in Indonesia (based on documents that I have provided)
Point 7- *Page 250176
· The Tribunal made statement about me trying to hide truth about trips back to Ukraine, i voluntarily provided and made tribunal aware of documents showing my travel patterns, and those documents had been given to immigration when i first came to Australia
· The tribunal can not find against my credibility on this point as I have repeatedly tried to provide documents as evidence of my travels and I have not tried to hide anything.
(Emphasis in original)
The Tribunal’s recitation of the Applicant’s evidence in relation to his entry to and exit from Iran is as follows (CB 247-249 at [61]-[74]):
61. The Tribunal asked the applicant about his travels from Ukraine back to Iran between 2009 and 2011. He claimed that he travelled to Iran in 2009, but before the June 2009 presidential elections. The applicant confirmed that the elections were held in the first half of June 2009. The applicant said that he finished his undergraduate degree in June-July 2009. The Tribunal pointed out that the elections happened in the first half of June 2009 which would mean that the applicant was in Iran before his summer break. The applicant insisted that he had travelled to Iran in May 2009 and had not stayed there very long before going back to Ukraine.
62. The applicant showed the Tribunal page 40 of the passport he was using to travel during that period. According to a stamp on page 40 he exited Iran on 6/6/1388 in the Iranian calendar which he said converted to 28 August 2009 in the Gregorian calendar. According to another stamp on the same page, he re-entered Iran on 24/2/1389 in the Iranian calendar which converts to 26 April 2010 in the Gregorian calendar. He said that on another page there was another stamp showing that entered Iran on 7/5/1388 which converts to 29 July 2009. He said that he had no explanation for the stamps with these dates in his passport.
63. He said he had called his parents in the middle of the night the night before the hearing to ask them how this could have occurred. He was adamant that he was not in Iran between the time of the 2009 election and April 2011. He said he had photos from Turkey on his computer, from his trip in 2009 with his girlfriend. The Tribunal asked him to check on his laptop the date of one of the photos which he had in front of him. The applicant clicked on “properties” and advised the Tribunal that the date of the photograph was 20 September 2009. He said it did not make sense that he would have been in Turkey that late in the year, because the academic year would have started by then. He said that he travelled from Iran to Turkey and then by ferryboat – crossing the Black Sea – from Turkey to Odessa in Ukraine. He did not go to any other countries on the way back to Ukraine.
64. The Tribunal notes that according to the copy of the bachelor’s degree provided by the applicant to the Department of Immigration, he completed that degree on 27 July 2009, two days before the entry stamp from Tehran airport. He obtained a student card with validity from September 2009. None of the documents from Ukraine indicate that the applicant started the master degree earlier than September 2009.
65. The Tribunal pointed out at the hearing that the existence of the Iranian entry and exit stamps indicates that, contrary to his claims, the applicant travelled to Iran between the June 2009 presidential elections and April 2011 when he was allegedly arrested. He denied this was the case. He said that he was going to contact his parents again and he will provide evidence that he did not return to Iran during this period. The Tribunal gave the applicant until 18 November 2015 to provide whatever evidence he wishes in support of his claim that he remained in Ukraine between June 2009 and April 2011. On 18 November 2015, the applicant wrote to the Tribunal to seek an extension of time:
i have been asked to provide some documents and send them through this email address by 18 November ,
But unfortunately it took long time for my parents to find those documents and I need to ask a extra week time to provide them .
66. The Tribunal granted the extension of time, even though the email from the applicant did not explain what the documents were, nor the reason why his parents could not email scanned copies of these documents to ensure that the applicant receives them in time.
67. The applicant then requested a second hearing, because he could maybe explain more. The Tribunal invited the applicant to a second hearing on 4 December 2015. At that hearing the applicant acknowledged that he had travelled back to Iran in 2009 but after the presidential elections as well as in 2010. He further conceded that nothing had happened to him and he was neither stopped, nor questioned at any time during these trips.
68. The applicant said that in 2009 his father paid 5 million Toman so that the applicant did not have to go to perform military service. Later in the same year the applicant had to travel back to Iran in order to finalise the paperwork to be freed from military service obligations. He said it was in the end of summer in 2009, after the elections in Iran and after he had participated in protests in front of the Iranian embassy in Kiev.
69. Prior to the second hearing he provided a document to the Tribunal and at the hearing he explained that it was the document his father had obtained. The applicant said the date on it was 3/12/1387 in the Iranian calendar. He agreed that this would be approximately is 21 February 2009 in the Gregorian calendar. The Tribunal did not ask the applicant to translate the document because the applicant admitted that he travelled back to Iran in the (northern hemisphere) summer of 2009, after the presidential elections.
70. In relation to the 2010 trip, the applicant said he travelled to Iran in order to get a new passport. He admitted that he did not have any problem obtaining a passport in 2010.
71. When the Tribunal asked the applicant whether by the time he travelled to Iran in 2009 he had allegedly already participated in a demonstration in front of the embassy, he answered yes.
72. The applicant was asked how he could explain why he had not been arrested in 2009 or 2010 if he had already been filmed in front of the Iranian embassy in Kiev. He said he could not explain why; then he said that the only explanation he could offer was that a large number of students were returning to Iran in 2009 and 2010 and it is possible that he was not identified until after he left the country in 2010.
73. The Tribunal invited the applicant to explain how it was possible that he did not recall that he travelled back to Iran in after the elections in 2009 and in 2010. He replied that he had forgotten a lot of things during the traumatic journey from Iran to Australia. He also pointed out that it was now 2015. The Tribunal agreed that a long time has passed now, but reminded him that he first arrived in Australia in 2012 and it was surprising that at that time he had already forgotten about these trips. The Tribunal suggested that if the applicant had managed to escape unscathed in 2009 and 2010, but then arrested in 2011, he would have remembered that.
74. The Tribunal said that it had to consider his explanation that he did not remember that he travelled to Iran in 2009 and 2010 and he did not have any problems. The Tribunal noted that in 2010 the applicant also obtained a new passport and left Iran via Tehran airport unhindered.
(Footnotes omitted)
The Tribunal’s findings with respect to the Applicant’s evidence were as follows (CB 249-250 at [75]-[78]):
75. Based on the stamps in the applicant’s passport and the applicant’s admissions at the second hearing, the Tribunal finds that the applicant was in Iran from 29 July to 28 August 2009 and from an unknown date to 26 April 2010. The Iranian presidential elections took place in early June 2009 and the applicant claims that he took part in a protest in front of the Iranian embassy in Ukraine on 16 June 2009.
76. The Tribunal concludes that the reason why the applicant was denying and hiding the truth about his trips back to Ukraine was because, as he said at the second hearing, it makes his claims look “ridiculous”. The Tribunal considers that this is not a small matter. The two trips to Iran in the summer of 2009 and 2010 undermine one of the key “pillars” on which the applicant’s claims have been built, namely, that he protested in front of the Iranian embassy in Kiev in 2009-2010, that he was filmed from inside the embassy when doing so and that as a result he was arrested on his return to Iran in 2011.
77. Having carefully assessed the totality of the applicant’s claims, the Tribunal finds that the applicant has fabricated his claims to have been involved in protests or any activities that may be construed as being against the Iranian regime either in Ukraine or in Iran.
78. The Tribunal finds that initially he neglected to tell the Department of Immigration and the Tribunal the truth in relation to his travel from Ukraine back to Iran after the 2009 presidential elections. During the first hearing, when questioned about the 2009 and 2010 airport stamps in his passport, the applicant talked about photographs taken in Turkey in September 2009, after he had visited Iran and he was on his way back to Ukraine to commence the new academic year. The applicant continued to maintain that he had been in Iran earlier in 2009 and the fact that the Turkey photos were dated September 2009 “did not make sense”. The Tribunal finds that the applicant went beyond misleading silence on the subject; he deliberately lied and, until the second hearing, feigned an inability to remember what had happened.
The Applicant’s submission is that as he had provided to the Department all relevant copies of his passports which contained exit and entry stamps relating to his travel between Iran and Ukraine, the Tribunal ought to have known that the Applicant did travel from Ukraine to Iran, whilst he was studying, twice after the presidential elections in 2009 and before he returned to Iran in 2011 after completing his studies in Ukraine.
The Applicant maintains that he did not mislead the Department or the Tribunal and that he was transparent at all times regarding his travel between Iran and Ukraine. The Applicant submits that the Tribunal made findings of fact about his travel which were wrong and which did not reflect the entry and exit stamps in the Applicant’s passports. The Applicant submits that as the Tribunal’s adverse credibility findings about him, which were based on its erroneous findings regarding the Applicant’s travel, were critical to the Tribunal’s conclusion that the Applicant fabricated his claims to have been involved in protests in or around Ukraine, the Tribunal’s decision was wrong and should be set aside.
In his written submissions filed on 26 March 2018, the Applicant complains that [65] and [76] of the Tribunal’s decision record miss a lot of important parts of the relevant discussion contained in the transcript from the Tribunal hearing on 4 November 2015.[7] The Applicant does note, however, that the Tribunal did highlight that the Applicant was the one who pointed out the passport dates, not the Tribunal. In his oral submissions, the Applicant made it clear that his submission was that the Tribunal’s reasons for disputing his credibility were simply wrong.
[7] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.24 l.31 onwards.
It is difficult to determine precisely what copies of the Applicant’s passports relevant to the Applicant’s travel to Iran from Ukraine, after the presidential elections in early June 2009 and when the Applicant returned from Ukraine in April 2011, were provided to the Department. The Applicant’s submission is that he, through his migration agent at the time of the visa application, provided all relevant copies to the Department and that it was the Tribunal’s responsibility to correctly determine from those documents the dates of the Applicant’s travel.
The copies contained in the Court Book of the Applicant’s two expired Iranian passports, which were provided to the Department by the Applicant’s migration agent on 1 April 2014 (CB 102-123), are, so far as the pages containing the entry and exit stamps between Iran and Ukraine are concerned, illegible. The Applicant maintains, however, that the copies of the relevant passport pages provided to the Department were legible and of the same quality as those attached to the Applicant’s affidavit filed in these proceedings on 26 March 2018. Counsel for the Minister properly conceded that the poor quality of the passport pages contained in the Court Book may well reflect the scanning process in the compilation of the Court Book.
I note, however, that in the Delegate’s decision record, the Delegate identified documents provided to the Department relating to the Applicant’s identity, which included the following (CB 136):
·Colour, fair quality scan of passport – Iran No [omitted] issued 27/7/2006 at [omitted] Passport office, expired 27/7/2011.
·Within the same file, colour scan of older passport – Iran No [omitted] issued 6/8/2003 at [omitted] expired 6/3/2008. This document shows not only biodata but visas and evidence travel between Iran and Ukraine.
·Poor quality monochrome scan of latest passport Iran No [omitted] issued 17/7/2010 (expiry date 17/7/2015). This is the passport on which the applicant travelled to Indonesia, where it was seized by the people smuggler.
There is no indication in the Delegate’s decision record that the Delegate was aware that the Applicant travelled from Ukraine to Iran after the 2009 presidential elections and before the Applicant returned to Iran in 2011. On a fair reading of the Delegate’s decision record, based on the evidence before him, the Delegate formed the view that the Applicant resided in Ukraine from September 2003 to April 2011 for the purpose of study, although the Applicant travelled twice to Turkey for a holiday in 2008 and 2009.
Having read the transcript of the Tribunal hearing held on 4 November 2015, where the Tribunal Member asks the Applicant about his travel dates,[8] it is clear that the Applicant was referring to copies of the relevant pages from his passports which were on the screen of his laptop and which the Applicant relied on to provide answers about his travel dates. For instance, the Tribunal Member asked the Applicant what would be the explanation for all the stamps in the passports and whether the Applicant could read them from the screen in front of him.[9] The Applicant responded that he could read them. Having read the proceeding pages of transcript of the hearing on 4 November 2015, it is evident that the Applicant’s concern, having read the dates from the documents he had in front of him on the laptop screen, is that the dates did not support the Applicant’s earlier evidence that he did not travel from Ukraine to Iran during the time after the presidential elections and before April 2011.
[8] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.24-32.
[9] Ibid p.32 l.18-20.
It is apparent from the transcript of the hearing on 4 November 2015 that the Tribunal Member was having difficulty reading the visa stamps on the copies of the pages from the Applicant’s passports that the Tribunal Member had before him. In other words, the copies the Tribunal Member had were of a poor quality, preventing him from reading the dates of certain entry and exit visa stamps. The Tribunal Member, therefore, relied on the Applicant, who had copies of the passport pages and stamps in front of him on his laptop, to give evidence about his dates of travel.
The Applicant complains in his written submissions filed on
26 March 2018 that there was much more said at the Tribunal hearing on 4 November 2015 that was not recorded by the Tribunal in its decision record. I have read the transcript of that hearing myself and am of the opinion that it would be very difficult to record the evidence given by the Applicant at the hearing regarding his dates of travel in its entirety because the Applicant’s evidence was vague and difficult to understand at times. The following extract from the transcript of the Tribunal hearing on 4 November 2015 reveals the difficulties with the Applicant’s responses to the Tribunal Member’s questions:[10]
[10] Ibid p.24 l.31-p.25 l.34.
[TRIBUNAL MEMBER]: Did you go back to Iran in 2009 or ‘10?
[APPLICANT]: That’s why have a issue, because I haven’t been here on that one and a half years, so ..... in – in Morassa. One and a half years I haven’t been in Iran, because it wasn’t – I missed one summer and after Christmas I go back to Tehran. Yes.
[TRIBUNAL MEMBER]: Sorry. After Christmas. What is that in? 2010?
[APPLICANT]: Is it – is it – it’s – near the start of September. I ..... around September.
[TRIBUNAL MEMBER]: Yes.
[APPLICANT]: Yes. To May/September, yes, I been there.
[TRIBUNAL MEMBER]: Sorry.
[APPLICANT]: And then - - -
[TRIBUNAL MEMBER]: Sorry. Sorry. September of what year?
[APPLICANT]: September 2009 to September 2010 I been there, which are - - -
[TRIBUNAL MEMBER]: Yes.
[APPLICANT]: - - - I – I’m pretty sure I been there in Ukraine in summer time between ‘09 and ‘10 and then September ‘10 to 2011 of – of ..... 2011 I still live in Ukraine. I finish my degree, and I was waiting for my – get one of the degrees ..... to..... make it available.
[TRIBUNAL MEMBER]: So, as far as you remember, when was the last time that you were in Iran - - -
[APPLICANT]: Yes - - -
[TRIBUNAL MEMBER]: - - - before April 2011?
[APPLICANT]: Before it was – yes. No. No. It was before September 2009, but it was before election, because then I came back from Iran. When I came back in the ..... from the – ..... and ..... from the ship to ..... city of Ukraine, and then I meet my girlfriend there and then we’re ..... for a couple of days and then came back to Kiev.
Then couple of – I don’t know, weeks or time the start the election. I – I coming back - - -
[TRIBUNAL MEMBER]: They were in June.
[APPLICANT]: Yes. And - - -
[TRIBUNAL MEMBER]: The elections were in June.
[APPLICANT]: Yes. Election was in June, yes.
Furthermore, the transcript of the hearing on 4 November 2015 reveals the difficulties facing the Tribunal Member in ascertaining precisely which dates the Applicant was saying he entered Iran and/or exited Ukraine.[11] The Applicant’s evidence was vague about what dates the stamps indicated he had entered Iran and/or exited Ukraine.
[11] Ibid p.28-31.
Because of the clear difficulties the Applicant was having interpreting the documents he had before him on his laptop, which the Applicant now claims were the documents he had provided to the Department and the Tribunal, the Applicant was granted an extension of time by the Tribunal to enable him to contact his parents and provide relevant documents. The Applicant provided further copies of the relevant pages from his passports following the first Tribunal hearing on
27 November 2015 (CB 201-219). The entry and exit visa stamps on these copies are by and large illegible.
Having heard submissions from the Applicant at the resumed judicial review hearing in this Court on 18 April 2018 regarding the dates of the visa entry and exit stamps in the copies of his passports annexed to his affidavit filed on 26 March 2018, I am satisfied that it is more probable than not that the dates recorded in [62] and [75] of the Tribunal’s decision record regarding the Applicant’s entry and exit dates to and from Iran were incorrect. I accept the Applicant’s submissions that the correct dates were, respectively, 23 July 2009 and 7 September 2009. Further, the “unknown” date the Applicant was in Iran in 2010 (CB 249 at [75]) was in fact a date which could be ascertained from the clearer copies of the passport pages annexed to the Applicant’s affidavit filed on 26 March 2018. This date was 14 June 2010.[12]
[12] Affidavit of the Applicant filed on 26 March 2018, Annexure A5.
It must be said that these incorrect dates were dates given by the Applicant to the Tribunal Member at the hearing on 4 November 2015, where the Applicant informed the Tribunal that the exit visa stamp from Iran was dated 28 August 2009[13] and that the entry stamp was
26 April 2010.[14]
[13] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.30 l.1.
[14] Ibid p.30 l.5.
The question for this Court is whether these mistaken findings of fact give rise to jurisdictional error.
In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (“SZNPG”), the Full Court of the Federal Court of Australia said the following (at [28]):
28. However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
The evidence about whether and when the Applicant returned to Iran whilst studying in Ukraine after the presidential elections in 2009 until he claimed he returned to Iran in April 2011, when he claims he was arrested and interrogated was critically relevant to the Tribunal’s assessment about the Applicant’s claims he took video footage of the protests outside the Iranian embassy in Ukraine and assisted an active organiser named Mr H to upload these to the internet.
The Applicant claimed that in 2011 on return to Iran, because of this activity he was arrested by Iranian authorities. This claim was critical to the Applicant’s fear of persecution. The Tribunal reasoned that if the Applicant returned twice to Iran after the presidential elections in 2009 until he claimed he returned to Iran in April 2011 without difficulty, this undermined the Applicant’s claims to fear persecution.
It was not the precise dates the Applicant returned to Iran but the fact that he did twice after the presidential elections in 2009 until he claimed he returned to Iran in April 2011 that was critical to the Tribunal’s reasoning. As will be seen below, at the resumed Tribunal hearing on 4 December 2015, the Applicant gave evidence that he had returned twice to Iran after the presidential elections in 2009 until he claimed he returned to Iran in April 2011 without difficulty.
Accordingly, I am not satisfied that the mistaken findings of fact about the precise dates the Applicant travelled to Iran give rise to jurisdictional error.
The Applicant also complains about the Tribunal’s strong adverse credibility findings in relation to the evidence given by the Applicant about this travel to Iran after the presidential elections in 2009 until he claimed he returned to Iran in April 2011.
The Tribunal found that the Applicant had deliberately misled it about whether he returned to Iran after the presidential elections in 2009 until he claimed he returned to Iran in April 2011. The Tribunal concluded that, because of this, the Applicant fabricated his claims. I am satisfied that the Tribunal’s strong adverse credibility findings about the Applicant’s evidence were open to it for the following reasons.
First the Applicant, who was assisted by a migration agent, misled the Department and ultimately the Tribunal about his travels to Iran in the relevant period by his silence about this travel (see [10] and [11] above). The Applicant did not refer to his travel to Iran after the Presidential elections in 2009 until he claimed he returned to Iran in April 2011 in the Statutory Declaration he affirmed and provided with his visa application or the Statutory Declaration he provided to the Tribunal.
Second, the Applicant misled the Tribunal when giving evidence at the first Tribunal hearing on 4 November 2015. Having given evidence about the exit and entry visa stamps in his passports, which suggested that the Applicant had travelled to Iran in 2009 and 2010, the Applicant said the following:[15]
[15] Ibid p.32 l.5-17, p.32 l.26-36.
[TRIBUNAL MEMBER]: Are you saying these stamps are wrong?
[APPLICANT]: What I think – yes, I’m not sure about these dates. I’m – what I will tell you – I have to ..... me ..... as soon as possible, just a couple of .....
[TRIBUNAL MEMBER]: Yes.
[APPLICANT]: ..... passports here, and have a look at all the pages, what’s happening, because these dates ..... because I have not been in the – in Iran after the election, I remember. I never been after the election. I just ..... election ..... after 2011, I’ve been in Iran.
…
[TRIBUNAL MEMBER]: What about the 2010 entry stamp? Do you have no recollection of going in 2010?
[APPLICANT]: No, I have not, 100 per cent not ..... in 2010.
[TRIBUNAL MEMBER]: What is the explanation for these stamps? How would they – how would Tehran Airport stamps appear in your passport if you were not there?
[APPLICANT]: I’m not sure. I have ..... because I’m not – I’m pretty sure I have once, 2009 ..... to 2011, where I left Iran on holidays ..... Iran ..... September 2009 and ..... 2011.
In these extracts, the Applicant is denying, even in the face of the evidence he produced from his passport which suggested otherwise, that he travelled to Iran after the presidential elections in 2009 until he claimed he returned to Iran in April 2011.
At the second Tribunal hearing on 4 December 2015, the Tribunal Member reminded the Applicant that he had given evidence at the hearing on 4 November 2015 that he had left Iran before the 2009 presidential elections and had not returned to Iran until 2011. The Applicant was asked, having had the time to locate documents and talk with his parents about what was the Applicant’s evidence about his travel.[16] The Applicant then gave evidence that he travelled to Iran in 2009 after the presidential elections[17] and also in February or March in 2010.[18]
[16] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure B at p.3 l.27-32.
[17] Ibid p.5.
[18] Ibid p.6 l.13-30.
Contrary to the Applicant’s submission that the Tribunal’s errors regarding the entry and exit visa stamps affected the Tribunal Member’s judgment of the Applicant’s trustworthiness, it is evident from the Tribunal’s reasoning that it was the failure of the Applicant in his application for the visa and in his Statutory Declarations to disclose his travel to Iran in 2009 after the presidential elections and before he returned to Iran in 2011 together with the Applicant’s evidence given at the first Tribunal hearing that he did not travel to Iran in that period, notwithstanding the documentary evidence contained in the Applicant’s passport that he did so, which lead the Tribunal to find that the Applicant was hiding the truth. The Tribunal concluded that the motivation for this was that the evidence that the Applicant travelled to Iran in the relevant period undermined one of the key “pillars” on which the Applicant’s claims have been built; namely, that as a consequence of the protests the Applicant engaged in outside the Iranian embassy in Ukraine, he was arrested on his return to Iran in 2011. The Tribunal’s finding that the Applicant went beyond misleading silence on the subject and deliberately lied until a second hearing, feigning an inability to remember what had happened (CB 250 at [78]), was a finding that was open to the Tribunal.
Consequently, I am not satisfied that Points 3, 5, 6 and 7 of the Applicant’s Court Points give rise to any jurisdictional error.
Point 4
Point 4 of the Applicant’s Court Points is as follows:[19]
[19] Exhibit A1, 1.
Point 4- *Page 248/64
· Tribunals observed date on bachelor degrees completed date, and makes statement: it was completed on 271712009, which he assumed it did not match with passport dates
But as my bachelor degree shows I completed it on the 10/712009 and it matches with passport dates, these documents been provided to Department Of Immigration as original and also high quality scans.
· Passport series V, page 35: Ukrainian stamp shows I left Ukraine 171712009, 10 days after I finished my bachelor, and the tribunals statement is incorrect about leaving before study finished.
· Date on my student card is the university standard and pattern for the period of study to take place, and does not have a date of issue. Tribunal mistook the date to mean the date of issue (tribunal did not ask about dates of degrees, student cards, and made assumptions without knowing the meaning on those documents)
The paragraph of the Tribunal’s decision record impugned by the Applicant is as follows (CB 248 at [64]):
64. The Tribunal notes that according to the copy of the bachelor’s degree provided by the applicant to the Department of Immigration, he completed that degree on 27 July 2009, two days before the entry stamp from Tehran airport. He obtained a student card with validity from September 2009. None of the documents from Ukraine indicate that the applicant started the master degree earlier than September 2009.
(Footnotes omitted)
The Applicant’s submission in relation to Point 4 is the same as the complaints made by the Applicant in Points 3, 5, 6 and 7 of the Applicant’s Court Points. This is that the Tribunal made a mistake about the date the Applicant completed his Bachelor degree. The Tribunal found that the Applicant completed his degree on
27 July 2009 (CB 248 at [64]). The Applicant submits that the relevant document shows that the Applicant completed his degree on
10 July 2009 and that the Ukrainian stamp on the Applicant’s passport showed that he left Ukraine on 17 July 2009, ten days after he finished his Bachelor degree, and, consequently, the Tribunal was wrong to state at that the Applicant left Ukraine before he finished his study
(CB 248 at [64]).
The difficulty with the Applicant’s submission is that this is not what the Tribunal said at [64] of its decision record. All the Tribunal concluded from its findings as to the dates on the copy of the Applicant’s Bachelor degree was that, taking into account the Applicant’s student card, “[n]one of the documents from Ukraine indicate that the applicant started the master degree earlier than September 2009” (CB 248 at [64]).
The transcript of the Tribunal hearing on 4 November 2015 discloses that the Tribunal was looking at the date the Applicant completed his degree in the context of determining when the Applicant had returned to Iran and, in particular, whether the Applicant’s return to Iran in 2009 was before or after the presidential elections, which took place in June 2009.[20] As noted above at [67], the Applicant conceded at the second Tribunal hearing on 4 December 2015 that he returned to Iran after the 2009 elections twice before he returned to Iran in 2011. The Tribunal did not ultimately rely upon the date of the Bachelor degree in its findings and it was not the basis of any adverse credibility findings.
[20] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.24-26.
Therefore, even if I accept that the Tribunal made a mistaken finding of fact in relation to the completion date of the Applicant’s Bachelor degree, this does not give rise to jurisdictional error.
Consequently, I am not satisfied that Point 4 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 8
Point 8 of the Applicant’s Court Points is as follows:[21]
[21] Exhibit A1, 2.
8- Page 250/81
· -My claim about the reason for my arrest in Iran is not just because of my involvement in front of the Iranian embassy protests, and not just because of [Mr H] alone. Like i have said at every hearing, it was regarding several identities and information about people that were in front of the embassy, including an old man who was one of the organisers, and whose image in video i provided to immigration,
· As I disclaimed to the Tribunal, which is for some reason missing from the court documents of the Tribunal’s judgement, the Tribunal asked about reasons I have been arrested, I have explained and showed photos of certain people I had been questioned about during the interrogation. It was about Ayatollah Khatami, which was supporting overseas protesters, and also about people getting support from overseas. I showed the tribunal pictures of people in front of the embassy, which I was asked about during the interrogation following my arrest.
· As any smart man would do, [Mr H] never would use certain emails, and changed his email provider and email address regularly, as did myself and others in similar positions. As I mentioned to the Tribunal, this was to ensure it would be harder for emails and information to be tracked, however, as I had concerns about Iranian authorities having my laptop/hard drive, I deleted what I could remember of my passwords and emails, as they could have been saved on that laptop, and I was scared to risk not deleting them.
(Emphasis in original)
At [81] of its decision record, the Tribunal said as follows (CB 250 at [81]):
81. The applicant claimed that some of the footage that was taken in Ukraine was sent to international media organisations such as CNN. The applicant maintained that his friend [Mr H], who was a more prominent activist, used the applicant’s IT skills. However, the applicant did not have any evidence of any email exchanges with [Mr H]. He claimed that he deleted all the emails between himself and [Mr H]. When asked why he had done so, he said that the authorities could hack his password and read his emails. At the same time he acknowledged that during his alleged detention in 2011 he had been asked no questions at all about his email address.
The Applicant submits that the Tribunal focused on his claims to have assisted Mr H to the exclusion of his broader claims to have been involved with other people in the protests and to have been questioned or interrogated about all these matters when he was detained by the authorities upon his return to Iran in 2011. The Applicant also submits that the Tribunal twisted his words and changed the meaning of the reason for his arrest and that his conversation related to the businessman that he was questioned about during his arrest. The Applicant submits that the Tribunal focused on Mr H and not the entire situation which the Applicant says he tried his best to make the Tribunal Member of aware of.
In the Applicant’s Statutory Declaration dated 22 October 2012, the Applicant said the following about the protests outside the Iranian embassy in Ukraine (CB 36):
In June 2009 and in February 2010 I participated in two demonstrations with [Mr H]. In both instances I protested in front of the Iranian embassy and there were people taking record of the protests by video…
The Applicant did not make claims about other protesters in that Statutory Declaration. In his Statutory Declaration dated
4 November 2015, provided to the Tribunal at the first hearing, the Applicant provided more details regarding Mr H and his political activities in Ukraine (CB 186 at [3]-[7]). Under the heading “How everything put me through to be protest [sic] and against government and I helped [Mr H]” (CB 187), the Applicant deposed to the beginning of Mr H’s political activities after the 2009 presidential elections in Iran (CB 187-188 at [18]). At [19] of the Statutory Declaration, the Applicant said the following (CB 188 at [19]):
19. [Mr H] and his friends organised a demonstration in front of Iranian Embassy in Ukraine which they got permission from Ukrainian Government for stand in front of Iranian Embassy and Ukrainian Police promised to support it , and when said to me we organised this demonstration , I was so happy at least we can be seen and heard like other people in Iran and show them our supports, it was happening in lots of other countries, we got there and I was also taking picture to make a video later , so many of students and other resident people who were living in Ukraine been there , people were covering face to do not get recognized ,[Mr H] also organised a mini bus from our University to bring us there and waited for us to bring us back.
The Applicant then deposed to Mr H’s increasing political activities and the assistance he provided Mr H (CB 188 at [21]-[23]). At [24] of the Applicant’s Statutory Declaration dated 4 November 2015, the Applicant said as follows (CB 188 at [24]):
24. Then [Mr H] and his Friends organised second demonstration in front of Iranian Embassy in February 2010, my uncle contact me a few days after that and was asking about what I’m doing there and why he got arrested and questioned about me and was worrying and I would not think it could have any connection to [Mr H] and helping him because [Mr H] always were making sure no one knew about his activities , and I would never think anyone would assume that I am doing anything serious by helping [Mr H] as be part of some co-optation.
The Applicant then deposed in his Statutory Declaration dated
4 November 2015 to his detention and interrogation by the Iranian authorities after he returned to Iran in 2011 (CB 189-190 at [28]-[34]). At [31] of the Statutory Declaration, the Applicant describes in relation to a photograph of a demonstration, being interrogated about the people involved, why they had been there and who organised it (CB 189 at [31]). At [32] of the Statutory Declaration, the Applicant deposed that he said to the authorities that he did not know these people and was then interrogated by another person who kept asking the Applicant about Mr H, where he gets support from and who works with him
(CB 189 at [32]). The Applicant deposed that he told the authorities that he did not really know who was working with Mr H. The Applicant then deposed that he was released from detention (CB 190 at [34]).
The Applicant then deposed in his Statutory Declaration to his discussions with Mr H and Mr H’s request that the Applicant pass on to a friend of theirs, “Mr O”, copies of “good” videos of the demonstrations (CB 190-191 at [37]-[38]).
At the Tribunal hearing on 4 November 2015, the Applicant gave evidence about being questioned about a businessman who was in a photograph taken of one of the protests. The Applicant gave evidence that he did not know the businessman’s name.[22] The Applicant’s evidence about these broader claims continues,[23] however, it is very difficult to understand. The clearest extract from the Applicant’s evidence is as follows:[24]
[22] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.35-36.
[23] Ibid p.36-41.
[24] Ibid p.39 l.45-p.40 l.19.
[APPLICANT]: The picture they are showing me, [Mr H] was there. That guy was there. Other people, I didn’t know. But when I got out of that – that jail ..... and I ..... supporting ..... it was in ..... Ukraine ..... something else ..... question in Iran about the ..... in other countries, and ..... and if some people ..... in the pictures and who he been supporting, if some pictures ..... because I knew – I seen them in a – in that 30 days in Iran questioning me.
[TRIBUNAL MEMBER]: How was Hatami supporting these people?
[APPLICANT]: I don’t really know, no. Financially?
[TRIBUNAL MEMBER]: Well, how do you know that he was supporting these people?
[APPLICANT]: I don’t know. I don’t know. It’s just – it was .....
[TRIBUNAL MEMBER]: Why do you think that he was supporting these people?
[APPLICANT]: Because he was – because the pictures in that – in that ..... the people who were connecting with Hatami in other countries, that was for me, very familiar, the pictures they were showing me inside ..... questioning me ..... about [Mr H], they were questioning about all ..... and they were questioning about other people who I don’t know, I didn’t even know who they are.
Later in the hearing, the Tribunal Member sought the following clarification regarding the photographs the Applicant said he was shown in detention:[25]
[25] Ibid p.41 l.6-15.
[TRIBUNAL MEMBER]: So they’re not people you knew from Ukraine.
[APPLICANT]: No.
[TRIBUNAL MEMBER]: They were people whose photograph you were shown while you were in detention?
[APPLICANT]: Yes, yes, it was ..... it was ..... maybe .....
When asked by the Tribunal Member whether the Applicant was on his way to seek asylum on the basis of his connection with Mr H, the Applicant responded “Yes”.[26]
[26] Ibid p.46 l.46.
On the face of the evidence given by the Applicant during the visa application process and during the Tribunal proceedings, the key person with whom the Applicant had a connection and with whom the Applicant claimed was engaged in political activities was Mr H. I am satisfied that the Tribunal correctly summarised the Applicant’s evidence regarding the interrogation by the Iranian authorities about the protests. At [47] to [48] of its decision record, the Tribunal summarised the Applicant’s evidence as follows (CB 245-246 at [47]-[48]):
47. The applicant said even though the videos he had shown the Tribunal did not show him clearly, the embassy staff in Kiev had taken their own footage of protesters. When the applicant was arrested in 2011 he was shown clear footage of himself and others.
48. He was asked why the authorities had to interrogate him for 13 days if they had “clear footage” of him. He said that what he had done was not that serious, because he was not a leader. They asked about [Mr H] and about the “old guy” who was visible in the first “video”. They had also shown him photographs of other people in the protests in Kiev and asked him what he knew about these people. At the time he had no idea why he was being asked about these other people. Later on he realised what had happened. Ayatollah Khatami had been accused of supporting anti-Ahmadinejad protesters abroad and the authorities (people in government who belonged to more conservative political factions and wanted to discredit Ayatollah Khatami) were looking for the connection between Khatami and protesters abroad. The applicant said that after he was released from detention, he saw online some photos of people he had been shown in detention and according to the article these people were connected to Khatami. He did not have a copy of the article available at the time of the hearing.
I am satisfied that it was the Applicant’s claimed connection with Mr H and the claimed support the Applicant gave Mr H, both in Ukraine during the protests and subsequently when the Applicant claimed he provided a person called Mr O with video footage to give to Mr H, which formed the basis for the Applicant’s claim to fear persecution if he were to return to Iran.
In those circumstances, it was reasonable for the Tribunal to explore with the Applicant whether he had retained any documentary evidence to support his claim, such as emails with Mr H.
In any event, the Tribunal’s findings in relation to the Applicant’s claims were not simply limited to the Applicant’s connection with Mr H. At [77] of the its decision record, the Tribunal said the following (CB 250 at [77]):
77. Having carefully assessed the totality of the applicant’s claims, the Tribunal finds that the applicant has fabricated his claims to have been involved in protests or any activities that may be construed as being against the Iranian regime either in Ukraine or in Iran.
Consequently, I am not satisfied that Point 8 of the Applicant’s Court Points gives rise to any jurisdictional error.
Points 9 and 11
Points 9 and 11 of the Applicant’s Court Points are interrelated and concern the Tribunal’s findings regarding the failure of the Applicant to retain copies of emails and video footage on a USB device and the Applicant’s lack of corroborative evidence regarding his involvement in the protests in Ukraine.
Points 9 and 11 of the Applicant’s Court Points are as follows:[27]
Point 9- Page 250/83
· The tribunal made statement about not backing files up to a USB, and why I deleted emails and documents instead of changing my password. That is an assumption he made, as well as assuming about my state of mind and behaviour at the time. The situation in Indonesia after i found out [Mr H] and found a smuggler, as is the same as any other refugee in Indonesia, my passport, phone etc were confiscated and I was taken to an isolated location, where they limited everyone ability to go into public. On rare times i could get access to an internet cafe, it was for an extremely small amount of time, expensive, screen in a public view, in an isolated city. On top of that, i managed to keep some photos in my iPhone 2; i got this phone back on Christmas island. When I left Iran i had two bags with belongings, when i got to the island i had a shirt, jeans, and one pair of shorts, and the iPhone i kept safe from water. I provided my phone to authorities on Christmas island, and when i got it back from them, all the files and photos had been erased from it (i had pictured of smugglers on it, places i had been taken and kept, photos of me in Iran, and possibly more info there but was not able to charge and use the phone much)
[27] Exhibit A1, 3.
…
Point 11- Page 251/85
· Tribunal finds that I never had email correspondence with [Mr H], without any factual evidence, documents or proof to make that statement from,
At [83] and [85] of its decision record, the Tribunal said as follows
(CB 250-251 at [83], [85]):
83. The applicant claimed that the applicant was thinking about approaching the UN in Indonesia, and even suggested that course of action to the uncle, but his uncle persuaded him not to do so, because they had no proof. The Tribunal considers that any person with even rudimentary IT skills – and the applicant claimed to possess a level of IT expertise – could have changed his or her gmail and Facebook passwords or taken files down from the internet but saved them (e.g. on a USB stick).
…
85. The Tribunal finds that the applicant never entered into email correspondence with [Mr H] about political activities. That is, in the Tribunal’s opinion, the true reason why he cannot produce any emails. The Tribunal finds that the applicant never posted anti-government comments or files online.
Points 9 and 11 of the Applicant’s Court Points are simply argumentative submissions regarding the findings of the Tribunal with respect to the Applicant’s evidence. Point 9 seeks to introduce evidence not before the Tribunal about the difficulty of access to the internet and seeks impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Point 11 misunderstands that the Tribunal’s finding at [85] of its decision record was arrived at based on the Tribunal’s reasoning that the Applicant’s evidence was implausible (CB 250-251 at [82]-[84]). Paragraph [83] of the Tribunal’s decision record is set out above at [95]. At [82] and [84] of its decision record, the Tribunal said as follows (CB 250 at [82], 251 at [84]):
82. The Tribunal finds it implausible that the applicant would have deleted his correspondence with [Mr H] and his Facebook account in Indonesia, that is, after escaping from Iran, whereas he kept the emails throughout 2009, 2010 and most of 2011, even after his alleged arrest in Iran. On the one hand he claimed that the authorities could not hack, or penetrate, an encrypted website such as gmail; on the other hand he insisted that he had to delete all the emails and his entire Facebook profile, because he thought it was possible the authorities could find his passwords when they came to his house.
…
84. The Tribunal finds it implausible that the applicant would not only have deleted all emails, documents, videos, photographs and social media posts that link him to the protests in Ukraine, but that he was unable to get in touch with friends and associates with whom he studied in Ukraine who could give him fresh copies of emails, documents, videos, photographs and social media posts that link him to the protests, or such a person or persons could write a letter of support setting out the applicant’s past activities.
Consequently, I am not satisfied that Points 9 and 11 of the Applicant’s Court Points give rise to any jurisdictional error.
Point 10
Point 10 of the Applicant’s Court Points raises a question as to whether the Applicant was accorded procedural fairness in the sense of being provided with a meaningful opportunity to give evidence at the Tribunal hearing(s) in accordance with s.425 of the Act.
Point 10 of the Applicant’s Court Points is as follows:[28]
[28] Ibid.
Point 10- Page 251/84
· The Tribunal said they found it implausible that I didn’t keep any copies of emails, documents, etc, and also that I couldn’t get in touch with other people that could verify my involvement at protests, despite me suggesting a friend who now lives in New Zealand being able to make a statement at the Embassy, that supports my involvement and activities with protests and [Mr H], however the Tribunal said they would not accept it as viable information. Myself and other people who were sending photos/videos and info regarding the protests, would have a string of temporary emails, that were only used for short periods once or twice, then new ones would be created and used. These email addresses were to send info to other news sources who send that info on, and eventually posted by a third or fourth party to social media, so as you can see, tracking down these things would be very hard for me to do, especially after so much time has passed
· for instance, for this court hearing, I asked people including my family, to send me articles of the current situation in Iran. Any articles that they could send, they immediately tried to erase any trace of them having viewed them or sent them to anyone else, as Iran has made it illegal to share news, even screenshots, and the people I asked to do this, were terrified of any repercussions for sending these sites and screenshots.
(Emphasis in original)
At [84] of the Tribunal’s decision record (extracted in full at [96] above), the Tribunal found that it was implausible that (CB 251 at [84]):
a)not only did the Applicant delete all documentary evidence that linked him to the protests in Ukraine, but that the Applicant was unable to get in touch with friends and associates who might provide him with such documentary evidence; and
b)the Applicant was unable to get in touch with a person or persons who could write a letter of support setting out the Applicant’s past activities.
In Point 10 of the Applicant’s Court Points, the Applicant makes two submissions. The first submission addresses the Tribunal’s finding that it was implausible that the Applicant was unable to contact any friends to provide documentary evidence, including electronic evidence, about the Applicant’s involvement in the protests in Ukraine. In that submission, the Applicant describes the difficulties of tracking down evidence such as photos, videos and emails, and the (unsuccessful) efforts he went to obtain such documentation for the purpose of the Tribunal hearings. To the extent that this is new evidence before the Tribunal or is a submission disagreeing with the Tribunal’s views about the ability of the Applicant to obtain such evidence, the Applicant is simply seeking impermissible merits review.
The second submission made by the Applicant in Point 10 addresses the Tribunal’s finding that it was implausible that the Applicant was unable to find a friend who could provide a letter of support regarding his claimed involvement in protests in Ukraine. The Applicant submits that he informed the Tribunal that he had a friend in New Zealand who would be able to provide evidence or make a statement in support of the Applicant’s claimed activities whilst in Ukraine. In this submission, the Applicant states that the Tribunal foreclosed any opportunity the Applicant had to provide this evidence by stating it would not be viable. In his written submissions filed on
26 March 2018, the Applicant says that the transcript at the Tribunal hearing on 4 November 2015 shows the Applicant’s willingness to cooperate and gain further evidence. The Applicant submits that the Tribunal Member “… then went on to say [that this] was not an option he would accept or consider…”.[29] The Applicant submits that in reaching his decision, the Tribunal Member “…made an error, and was unfair to ignore my willingness to cooperate as best I could, and disputed credibility by saying I was uncooperative.”[30]
[29] Outline of Submissions filed by the Applicant on 26 March 2018, 1.
[30] Ibid.
The evidence given by the Applicant at the Tribunal hearing on
4 November 2015 in relation to his ability to contact friends to provide documentary evidence in relation to his involvement in protests in Ukraine commences as follows:[31]
[31] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.61 l.44-p.63 l.22.
[TRIBUNAL MEMBER]: Isn’t there somebody else who – for example, the guy who is in New Zealand or the guy who is still in Ukraine, who still has email exchanges with [Mr H] and with you or just with you or just with [Mr H] but that mention your name or emails that talk about the - - -
[APPLICANT]: It was – it was …..
[TRIBUNAL MEMBER]: About the fact that [Mr H] was a big organiser and about the fact that [Mr H] has now disappeared?
[APPLICANT]: …..if he’s – I can ask couple of my friends in Ukraine because Australia don’t ….. .We know he has got an email - - -
[TRIBUNAL MEMBER]: The problem is that I have now asked you where you have that evidence and so I am not going to be - - -
[APPLICANT]: Because there’s no - - -
[TRIBUNAL MEMBER]: - - - able to put much weight on - - -
[APPLICANT]: ….. - - -
[TRIBUNAL MEMBER]: Why not? Why not?
[APPLICANT]: Because he’s a friend. And if he’s ….. email for the – it was [Mr H]. And [Mr H] not been known ….. that much. He was doing it when he was working in Israel.
[TRIBUNAL MEMBER]: Okay. Now, the other question I wanted to ask - - -
[APPLICANT]: So I - - -
[TRIBUNAL MEMBER]: I’m not going to ask you to go and get letters of support because I will not be able to put much weight on them because what you will – you may do is ring up your friends and say such and such, you are my friend, please help me get asylum in Australia. And a good friend will write anything you ask them to.
[APPLICANT]: I know but I already – all – in all situations every ….. you can say ….. you know, we can do letter to that. Even have proof of …. .. Who knows.
…
[TRIBUNAL MEMBER]: But if you had emails – if you had emails in your account that you could show me today - - -
[APPLICANT]: Yes.
[TRIBUNAL MEMBER]: - - - and you could read them and the interpreter could interpret them - - -
[APPLICANT]: Yes.
[TRIBUNAL MEMBER]: - - - that will be - - -
[APPLICANT]: Okay.
[TRIBUNAL MEMBER]: - - - strong evidence.
[APPLICANT]: I’m not saying ….. - - -
[TRIBUNAL MEMBER]: If you leave the hearing now and tonight and in the coming days you contact your friends and you ask them to provide you with a letter of support, I will not be able to give it much weight because it’s something that you have - - -
[APPLICANT]: I know.
[TRIBUNAL MEMBER]: - - - produced after I raised that there’s an issue.
[APPLICANT]: Yes, I understand.
The relevant transcript extracts above reveal that the exchange between the Tribunal Member and the Applicant commenced with the Tribunal Member exploring with the Applicant whether the Applicant could obtain evidence in the form of emails to substantiate his claim that he supported Mr H in Mr H’s political activities. It was in this context that the Tribunal Member referred to the Applicant’s friend who was in New Zealand or his friend who was still in Ukraine who might have email exchanges between Mr H and the Applicant. Clearly the Tribunal was concerned with the Applicant’s assertion that he had deleted all email exchanges which could support his claims.
There are parts of the evidence given by the Applicant at the Tribunal hearing on 4 November 2015 which could not be transcribed, for example, the evidence of the Applicant to which the Tribunal Member responded “Why not? Why not?”.[32] In context, it appears that this was in relation to the Applicant’s explanation about his inability to obtain emails, however, there is no certainty about this.
[32] Ibid p.62 l.16-18.
The Tribunal Member then returned to discuss the type of evidence that would support the Applicant’s claims, which he made clear to the Applicant would be the best evidence; namely, copies of emails in the Applicant’s account. The Tribunal Member said that that would be “strong evidence”.[33]
[33] Ibid p.63 l.10.
The Tribunal Member again referred to the issue of the Applicant providing letters of support from his friend subsequent to the Tribunal hearing. The Tribunal Member explained that he would not be able to give much weight to those and the reasons for that. The Applicant responded that he understood. The Tribunal Member then proceeded to ask questions about other matters relating to the Applicant’s claims.
Contrary to the Applicant’s submission, the Tribunal Member did not say to the Applicant that it was not an option for him to provide letters of support or that the Tribunal Member would not accept or consider letters of support provided subsequent to the Tribunal hearing on
4 November 2015. In my opinion, the Tribunal Member properly explained to the Applicant, who was self-represented, the reasons why any letters of support provided after the hearing would be given limited weight by the Tribunal in considering the evidence. At the same time, the Tribunal Member clarified with the Applicant the type of evidence that would be considered “strong evidence”; namely, copies of email exchanges between the Applicant and Mr H. As I understand the evidence given by the Applicant, in response to the Tribunal Member’s questions about whether the Applicant could provide probative evidence regarding his connection with Mr H, it was that the Applicant was unable to do so.
Accordingly, I am not satisfied that the Tribunal Member informed the Applicant that the Tribunal would not accept any supporting evidence from the Applicant after the hearing on 4 November 2015. The Tribunal Member in fact encouraged the Applicant to provide evidence that would be probative, such as email exchanges between the Applicant and Mr H. The Tribunal Member did not inform the Applicant that the Tribunal would not accept letters of support from friends of the Applicant. Rather, the Tribunal Member explained the reasons why that material would not be given “much” weight by the Tribunal.
One month later, at the resumed Tribunal hearing on 4 December 2015, the Applicant had not provided any evidence of email exchanges between himself and Mr H and did not provide to the Tribunal any letters of support from his friends who had knowledge of his claimed relationship with Mr H and claimed involvement in the protests in Ukraine. There was no discussion at the resumed hearing about evidence which might support the Applicant’s claim.
Accordingly, I am not satisfied that the Applicant was denied the opportunity to give evidence and make submissions at the two Tribunal hearings.
Consequently, I am not satisfied that Point 10 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 12
Point 12 of the Applicant’s Court Points is as follows:[34]
[34] Exhibit A1, 3-4.
Point 12- Page 251/86
· The tribunal based their decision of a lack of photo and video evidence, despite me having provided footage of me, same clothe and hair cut in the footage of me at the protest in front of the embassy taking photos, with my backpack on. I showed the Tribunal a photo of my backpack, a photo of me with the same haircut as I had at the protest, and I told the Tribunal that if they needed my parents could find that same shirt in my belongings in Iran, however, they said this was not necessary, and disregards this evidence that I was attempting to provide, and finds that I am not a credible witness.
· The tribunal can not find against my credibility on this point as I have repeatedly tried to provide documents as evidence of my identity and involvement at the protest and I have not been given fair judgement about this evidence
(Emphasis in original)
At [86] of its decision record, the Tribunal said the following (CB 251 at [86]):
86. Having carefully considered the totality of the evidence, the Tribunal finds that the applicant is not a credible witness. The Tribunal finds that the applicant was never involved or suspected of involvement in any protests in Ukraine or in Iran and therefore he did not take photos or video footage of protest; he cannot be seen in any photos or video footage of protests; and his name does not appear in any photos or video footage of protests.
The Applicant submits that the Tribunal was wrong as the Applicant did provide the requisite evidence in the form of three videos to the Tribunal and photographs, one of which shows the Applicant from the back standing next to Mr H. The Applicant claims he had a back pack and the same haircut shown on his passport.
The transcript of the first Tribunal hearing on 4 November 2015 recorded that the Applicant showed three videos to the Tribunal in support of his claim to have been present at protests in Ukraine.[35] There is an exchange between the Applicant and the Tribunal Member where the Tribunal Member asked the Applicant whether there were any videos that showed the Applicant more clearly. The Applicant responded that a video that did so was not one of the three videos given to the Tribunal but said that he would try to find that video.[36] The Court Book does not indicate that the Applicant subsequently provided a copy of this video to the Tribunal following the hearing on
4 November 2015, nor is there any evidence that the video was provided at the second Tribunal hearing held on 4 December 2015.
[35] Affidavit of Aaron Michael Day filed on 16 March 2018, Annexure A at p.33-37.
[36] Ibid p.37 l.10-22.
The Applicant’s submission that he showed the Tribunal a photograph of himself with a backpack and the same haircut as that in his passport photo is not evident from the transcript of the Tribunal hearing on
4 November 2015. There is only the following exchange:[37]
[37] Ibid p.38 l.1-26.
[TRIBUNAL MEMBER]: How do I know that it’s you? Especially the one where it’s showing you from behind. How do I know that it’s you?
[APPLICANT]: Yes, yes. I’m trying to – I’m going to try to find a clearer one, firstly, if you give me just a couple of days. And the other thing, I will try if I can ..... Ukrainian people in ..... pictures, some pictures maybe ..... and you can see ..... the same clothes, and you can see the same ..... I will try to find it. I think .....
[TRIBUNAL MEMBER]: Look, I - - -
[APPLICANT]: Yes, yes.
[TRIBUNAL MEMBER]: I don’t want you to be looking right now. I’m happy to give you - - -
[APPLICANT]: ..... give me a couple of .....
[TRIBUNAL MEMBER]: I will be happy to give you more than two days, because it’s very important.
[APPLICANT]: Yes, yes ..... yes.
[TRIBUNAL MEMBER]: But it – especially if there’s no explanation for your trips – for the stamps in your passport in 2000 and 2010, and there are no videos where you can actually be identified, whether they were on YouTube or anywhere else online – I may find that you attended protests, but the Iranian authorities either didn’t identify you, or didn’t care that much - - -
In the above exchange, the Applicant referred to the possibility of obtaining photographs that showed him wearing the same clothes, but it is plain from the Applicant’s response that he did not actually have these and had not yet provided them to the Tribunal. The Court Book discloses that the Applicant did not provide any such photographs to the Tribunal after the hearing on 4 November 2015, and there is no record in the transcript of the Applicant showing such photograph(s) to the Tribunal at the hearing on 4 December 2015.
In its decision record, the Tribunal set out the Applicant’s evidence in relation to the three videos he provided to the Tribunal as follows
(CB 245 at [42]-[47]):
42. At the first Tribunal hearing the applicant was asked how many protests he had participated in Ukraine. He said that he participated in two demonstrations – one about a week after the election in June 2009 and one about February 2010. He said that he made a video of the 2009 protest. He uploaded it on Facebook soon after making the video. He then took it down when he went back to Iran in 2011. He showed the Tribunal a “video” (about 1 minute and 45 seconds long) which was a compilation of still images. The Tribunal accepts that they are from Ukraine, because the video starts with a photograph of the sign of the Iranian embassy in Ukraine. Many of the people in the photographs hold signs in English “where is my vote”, but there are also some who hold signs in Russian and Ukrainian with the words “Where is my vote?”.
43. The applicant told the Tribunal that he was not in the photographs, because he was the one taking them. The “video” ends with the date 16 June 2009. The applicant said that when he returned to Iran he was questioned about a man who can clearly be seen in the “video” – he appears to be in his 50s or 60s with grey hair and a beard. He is a businessman and opponent of the government. The Tribunal notes that there is nothing in this “video” to indicate that it is the applicant who took the photos.
44. The applicant then showed the tribunal an actual video file. He claimed that he can be seen in the video from behind. The camera is only a few metres away from the person who the applicant says is he, but the person has his back to the camera and it is impossible to say if indeed it is the applicant.
45. The applicant showed the Tribunal a third video where a person can be seen in profile for only about a second. Once again, the Tribunal was unable to confirm that it is the applicant.
46. He said that about two and a half years ago he provided links to the above three videos which had been uploaded on Youtube to his then representatives Steven O’Dor. He showed the Tribunal the email and the Tribunal accepts that it is a genuine email. The applicant said he realised that the links were not forwarded by Mr O’Dor to the Department of Immigration. The applicant said that at the time he provided links to four videos but the fourth link no longer works. The video has been removed from Youtube.
47. The applicant said even though the videos he had shown the Tribunal did not show him clearly, the embassy staff in Kiev had taken their own footage of protesters. When the applicant was arrested in 2011 he was shown clear footage of himself and others.
It is apparent from both the transcript of the Tribunal hearing on
4 November 2015 and the above extracts from the Tribunal’s decision record that the Applicant conceded that the videos he provided to the Tribunal did not depict him clearly and that, in any event, the Tribunal was not satisfied that the videos depicted the Applicant. At [79] of its decision record, the Tribunal concluded as follows (CB 250 at [79]):
79. The Tribunal has seen the videos which purport to show the applicant in front of the Iranian embassy. The Tribunal has been unable to recognise the applicant in the video footage…
This finding was clearly open to the Tribunal on the evidence before it.
Consequently, I am not satisfied that Point 12 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 13
Point 13 of the Applicant’s Court Points is as follows:[38]
[38] Exhibit A1, 4.
Point 13- Page 251/87
· Based on what fact can tribunal assume that something or someone ([Mr H]) didn’t exist and that I never had correspondence with them
At [87] of its decision record, the Tribunal said as follows (CB 251 at [87]):
87. He never made, collected or sent videos or photos from Iran back to Ukraine for [Mr H] to use. While the Tribunal accepts that applicant knows a boy or a name called [Mr H], who was an Iranian living in Ukraine, the Tribunal does not accept that [Mr H] was an actual or imputed anti-government activist. Therefore, the Tribunal finds that the applicant is not of adverse interest to the Iranian authorities by virtue of his association with [Mr H].
The Tribunal found that the Applicant knew a person called Mr H but did not accept that Mr H was an anti-government activist (CB 250-251 at [81]-[86]). Point 13 of the Applicant’s Court Points is, in reality, no more than a disagreement with a finding of the Tribunal based on its consideration of the evidence before it.
Consequently, I am not satisfied that Point 13 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 14
Point 14 of the Applicant’s Court Points is as follows:[39]
[39] Ibid.
Point 14- Page 251/88/89/90
· Tribunal is not an Iranian authority so how can he make a factual statement that I am not of interest to Iranian authorities? How can he find this out, and what is his source of information to make such a statement? See point 8
The impugned paragraphs of the Tribunal’s decision record are as follows (CB 251 at [88]-[90]):
88. The Tribunal finds that the applicant has never been, and at present is not, of any adverse interest to the authorities.
89. The Tribunal finds that the applicant has never been detained, interrogated or in any way suspected of or imputed with anti-government views in the past. His house was never raided. His uncle was never interrogated or asked any questions because of the applicant’s activities.
90. Because of the Tribunal’s significant credibility concerns set out above, the Tribunal further rejects the applicant’s claims made at the second hearing, namely, that his father went to the authorities to obtain a record of the applicant’s movements in and out of Iran; that his father was told by the authorities that they knew that the applicant was an asylum seeker in Australia; and that the applicant’s sister’s travel agency business was recently closed down because some of her customers had been engaged in anti-government activities while on trips organised by the sister’s business.
Point 14 of the Applicant’s Court Points is also no more than a disagreement with a finding of the Tribunal based on its consideration of the evidence before it. The Applicant is merely seeking impermissible merits review.
Consequently, I am not satisfied that Point 14 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 15
Point 15 of the Applicant’s Court Points is as follows:[40]
[40] Ibid.
Point 15- Page 251/91
· The Tribunal was not satisfied about the lawyer connected to my uncle. I could provide more info and documents which show my uncle giving money to pay for the same lawyer as him, and persistence that I use that lawyer. Now I do not safe at all if the Tribunal used any of the info I gave against my uncle, in my uncles hearings. I do not trust my uncle or feel safe from him and worry that he would take actions upon me, or my family in Iran if he knows i spoke against him in any way. This is a very serious fear of mine, and having the same lawyer as him, hired by him, and who was a friend of his, places me in a fearful position
At [91] of its decision record, the Tribunal said as follows (CB 251 at [91]):
91. The Tribunal notes that the applicant claimed to have decided not to use the services of a migration agent in part because the same agent represented the applicant’s uncle (see at paragraph 4 above). On the evidence before it, the Tribunal is not satisfied that the applicant’s former agent will disclose any information about the applicant’s case to anyone outside of the Tribunal.
The Tribunal’s lack of satisfaction that the Applicant’s former migration agent would disclose any information about the Applicant to anyone outside the Tribunal is a finding that had no bearing on the Tribunal’s consideration of the Applicant’s claims to fear persecution. This paragraph merely dealt with a claim made by the Applicant which is not relevant to the Tribunal’s statutory task of deciding whether or not it was satisfied that the Applicant met the criterion in s.36 of the Act.
Consequently, I am not satisfied that Point 15 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 16
Point 16 of the Applicant’s Court Points is as follows:[41]
[41] Ibid.
Point 16- Page 251/92
· -What source can either myself or the tribunal say without a doubt, that i would be safe if i went home after seeking asylum i Australia, when Iranian policy towards any asylum seeker from Iran who went internationally, constantly changes, and depends on current situation in Iran. Currently, in the last few months, numerous Iranians without political involvement have been arrested after travelling back to Iran and were jailed, disappeared , or found dead
(ARTICLES BEEN ATTACHED AT END OF DOCUMENT)
At [92] of its decision record, the Tribunal said as follows (CB 251 at [92]):
92. The applicant did not claim specifically that he is at risk of harm because he has applied for asylum in Australia or because he will be a returnee from Australia. The Tribunal has nonetheless considered these claims which arise squarely on the facts before it.
Point 16 of the Applicant’s Court Points is difficult to understand as all the Tribunal states in [92] of its decision record is that although the Applicant did not specifically claim he is at risk of harm because he has applied for asylum in Australia or because he will be returning to Iran from a Western country, the Tribunal nonetheless considered these claims on the basis that they arose squarely on the facts before it.
The Applicant appears to misunderstand that the Tribunal must reach a state of satisfaction about these matters in deciding whether the criterion in s.36 of the Act has or has not been met by a visa applicant. This is a statutory task which is given to the Tribunal on review of a decision concerning an applicant seeking a protection visa.
Consequently, I am not satisfied that Point 16 of the Applicant’s Court Points does not give rise to any jurisdictional error.
Points 17 to 20
Points 17 to 20 of the Applicant’s Court Points are interrelated as they all concern the Tribunal’s consideration of country information.
Points 17 to 20 of the Applicant’s Court Points are as follows:[42]
[42] Ibid 4-5.
Point 17- Page 252/94
· -article provided by tribunal
· “Three million dollars have been spent to send these vulnerable asylum seekers back to their country of origin, despite the real threat many of them face to their safety”
· Article goes on to highlight Australia’s treatment of asylum seekers was so poor that they felt pressured or forced to return to their home country, and were labelled as voluntary returnees, even though they were in danger if they returned
· This article that the tribunal used as part of their evidence of the safety of asylum seekers returning home, only shows to back up my fears of going home, and that safety is not discussed
18 - Page 252/96; footnote 12
· Website does not exist
19 - Page 252/100; footnote 5.24
· Statement of DFAT is an opinion not a fact, or result of investigation and should not be used as factual evidence against someone’s life
20- Page 254/106
· Statement of Dr Corlett’s took place in 2004, which was before any political issues were in place that I was involved in, and is not current information or events that should be affecting any current Iranian refugees: only current events and circumstances should be taken into account when making decisions about asylum seekers situations, rather than outdated events from 14 years ago
At [94] of its decision record, the Tribunal said as follows (CB 252 at [94]):
94. The Tribunal further noted at the hearing that as of August 2014 it was reported that a total of 773 Iranian asylum seekers had returned from Australia, Manus Island and Nauru to Iran in less than a year, that is, in the period September 2013 to July 2014. There have been no reports of any harm inflicted on any of these returnees. The applicant said that when he was in Indonesia he was in terrible conditions and at one point the Iranians were asked if they wanted to return to Iran. He said that 90% of those people went back. He said only he and his uncle stayed, which showed that they were genuine. When asked again if he may be at risk for seeking asylum in Australia and being outside of Iran for 3 years, he said he was not sure. He said he did not know.
(Footnote omitted)
The Applicant’s complaint in Point 17 about what the article relied on by the Tribunal said is seeking impermissible merits review. It is apparent from [94] that the Tribunal gave weight to the information in the article that there were no reports of any harm inflicted on any of the returnees. The Tribunal also noted that when the Applicant was asked whether he would be at risk of harm in Iran by reason of him seeking asylum in Australia and being outside of Iran, the Applicant said that he was not sure.
Consequently, I am not satisfied that Point 17 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 18 of the Applicant’s Court Points simply asserts that the footnote referred to at [96] of the Tribunal’s decision record does not exist
(CB 252 at [96]). In any event, it is clear from [100] to [102] of the Tribunal’s decision record that the Tribunal considered other country information; that is, a Department of Foreign Affairs and Trade (“DFAT”) Country Report on Iran dated 29 November 2013 (CB 252-253 at [100]-[101]) and a Refugee Review Tribunal Issues Paper dated December 2014 (CB 253 at [102]).
Consequently, I am not satisfied that Point 18 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 19 of the Applicant’s Court Points misunderstands that the Tribunal is entitled to consider information relevant to the review before it, including country information.
Consequently, I am not satisfied that Point 19 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 20 of the Applicant’s Court Points, which concerns [106] of the Tribunal’s decision record (CB 254 at [106]), is misconceived. It is apparent from the next paragraph that the Tribunal in fact gives weight to what it says is the “most recent DFAT advice”, which is said to be consistent with a February 2011 United Kingdom Upper Tribunal (Immigration and Asylum Chamber) decision (CB 254 at [107]).
Consequently, I am not satisfied that Point 20 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 21
Point 21 of the Applicant’s Court Points is as follows:[43]
[43] Ibid 5.
21- Page 255/Il4
· Tribunal found that I am apparently not an atheist, nor a person who has rejected Islam...based on what...how does the tribunal have the ability to decide my religious beliefs against my will or personal belief system?! How?! This is against my rights as a human, and only I have the ability and authority to choose my beliefs, or lack of belief. I was thinking Iran was one of the last countries to try and impose belief systems upon people, until i saw this ridiculous statement.
· The tribunal says they took into account the fact that i studied in a non-Muslim country without having issue of haying turned away from religion. Based on the story of Iran, many government people (such as ayatollah Khomeini) also studied in nonMuslim countries and is not a stand alone fact leading to being seen as non-Muslim believers. What does suggest turning away from the faith, is people, such as myself, who do not follow it, or practice religion rituals, appearance, behaviours, or being reported to the government.
(Emphasis in original)
In Point 21 of the Applicant’s Court Points, the Applicant complains about the Tribunal’s finding that the Applicant is not an atheist. The relevant finding is as follows (CB 255 at [114]):
114. In light of the Tribunal’s credibility findings and despite the fact that the applicant has a tattoo of Darwin’s tree of life, the Tribunal finds that the applicant is not an atheist, nor a person who has rejected Islam. As the applicant himself conceded, the fact that he is not practising Islam, without more, will not lead the authorities to impute him with anti-Islamic views nor to view him as an atheist or an apostate. In reaching this view, the Tribunal has taken into account the fact that the applicant lived in Ukraine – a predominantly Christian country – for several years and he was never accused of turning away from Islam on any of his trips back to Iran.
In his oral submissions at the judicial review hearing on 6 March 2018, the Applicant complained that the Tribunal failed to make further inquiries of him regarding his claim to be an atheist and his beliefs.
The Tribunal’s record of the Applicant’s evidence in relation to this claim is as follows (CB 244-245 at [40]-[41]):
40. He was asked about his current religion. He said that he did not have a religion. He was an atheist. He was religious up until the age of 16, but he was not interested afterwards. He said he had not had any problems in the past, before he came to Australia, because he never told anyone, not even his parents.
41. He said that if he goes back and as long as he does not do anything that is considered against Islam – e.g. play loud music during Moharam when most people in Iran are sad – he would be fine. He said that he considers himself “100% atheist”. The applicant said that he has a tattoo of the tree of life and he showed it to the Tribunal, on the right hand side of his body, below the chest – sticks with the words “I think” and the letters A, B, C, D. He said it was the drawing that Darwin made in his diary. He said that he was not sure if the Iranian authorities would identify the tattoo as a drawing by Charles Darwin. He said that he had the tattoo done in a place that would not be immediately seen. Even his uncle, who is in Australia, does not know about it.
(Footnotes omitted)
The Tribunal invited the Applicant to give evidence about his current religion. It was not the responsibility of the Tribunal to ask the Applicant further questions about his religion. It was the responsibility of the Applicant to provide the evidence about his claim that he was an atheist to the Tribunal. The Applicant’s complaints set out under Point 21 are, in reality, another disagreement with a finding of the Tribunal based on its consideration of the evidence given by the Applicant. The Applicant’s complaints set out under Point 21 again seek impermissible merits review.
In my opinion, it was open to the Tribunal to find that the Applicant was not an atheist on the grounds that the Tribunal specified; namely, it’s adverse credibility findings; the Applicant’s concession; and the absence of repercussions experienced by the Applicant who had spent many years in a predominantly Christian country.
Consequently, I am not satisfied that Point 21 of the Applicant’s Court Points gives rise to any jurisdictional error.
Point 22
Point 22 of the Applicant’s Court Points is as follows:[44]
[44] Ibid.
22- Page 255/115
· My uncles lack of issues when travelling to and from Iran is his situation, not mine. Aside from his life and mine being separate sets of circumstances, and as i know, he last went to Iran over ten years ago, and a lot of things politically have changed since then. The facts of his travel are not relevant to my current situation, nor do they reflect on what would happen to me if I returned to Iran any more than they would reflect your experience if you were to travel to Iran.
In relation to the Applicant’s evidence about his relationship with his uncle, the Tribunal found as follows (CB 255 at [115]):
115. The Tribunal acknowledges that the applicant’s uncle in the past sought asylum in the US and was successful. However, the successful outcome of the protection application occurred in 2001 and in 2005 he returned to Iran where he did not face any problems. The Tribunal is not satisfied on the evidence before it that the Iranian authorities are aware that the applicant’s uncle was successful in his application for asylum in the US. Some 10 years have passed since he returned to Iran and he did not face any problems on return. The Tribunal does not consider that the applicant’s familial relationship to his uncle will cause him to be of any adverse interest to the authorities either individually or cumulatively taken together with the applicant’s other circumstances.
I do not understand the Applicant’s complaint in Point 22 as it seems to me that the Tribunal likewise found that the Applicant’s uncle’s travels were not of any relevance to the Applicant’s claim as it found that the Applicant’s familial relationship to his uncle would not cause the Applicant to be of any adverse interest to the authorities.
Consequently, I am not satisfied that Point 22 of the Applicant’s Court Points gives rise to any jurisdictional error.
Error of Law
I have considered each of the Applicant’s Court Points. For completeness, I have considered the Tribunal’s decision record in detail and can discern no error of law arising out of the Tribunal’s reasoning. The Tribunal considered each of the Applicant’s claims and/or integers of claims and made findings which were open to it on the evidence before it. The Tribunal’s reasons disclose no illogicality or irrationality.
Procedural Fairness
Furthermore, I am satisfied that the Applicant was not denied procedural fairness by the Tribunal. The Applicant was invited to attend a Tribunal hearing to give evidence and make submissions. At that hearing, the Tribunal brought to the Applicant’s attention that the dispositive issue was whether the Applicant’s claims for protection were credible. This was apparent from the Tribunal’s questioning during the hearings. The Applicant requested and was granted time after the hearing on 4 November 2015 to obtain further evidence. The Applicant also requested and was granted a second hearing to provide further evidence and make submissions.
Conclusion
For the reasons set out in this judgment orders will be made dismissing the Applicant’s application for judicial review filed on
4 February 2016. The Applicant will be ordered to pay the costs of the First Respondent in a fixed amount.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 4 July 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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