ASK18 v Minister for Home Affairs

[2019] FCCA 1134

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASK18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1134

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision not to grant temporary protection visa – whether findings Authority made were reasonably open to it – whether representatives of applicant failed though inadvertence or deceit to provide information to the Authority – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AA,36(2A), 36(2)(aa), 473DC, 473DD, 477

Cases cited:

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29

Applicant: ASK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3620 of 2018

Judgment of: Judge Manousaridis

Hearing date: 3 April 2019

Date of Last Submission: 23 March 2019, documents submitted by applicant

Delivered at: Sydney

Delivered on: 2 May 2019

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr L Leerdam of DLA Piper

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3620 of 2018

ASK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Iran, seeks judicial review of a decision of the second respondent (Authority) made on 19 November 2018 affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection (class XD-785) visa (TPV).

Background

1. The applicant travelled to Australia by boat, reaching Christmas Island on 27 May 2013.[1] The applicant, therefore, is an “unauthorised maritime arrival” as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Act).

   [1] CB14

2. The applicant applied for a TPV on 9 October 2015. In a letter dated 30 September 2015 that accompanied his application,[2] the applicant stated he was unwilling to return to his home country because of a personal risk of serious harm, but, because of his limited English, and his inability to access an interpretation or translation of the application form, he was unable to read all the questions in the form or write his answers in English, and, for these reasons, he did not sign the application form.

   [2] CB40

3. The applicant was invited to attend an interview before the delegate on 16 December 2015,[3] and the applicant attended an interview on that day (TPV interview).[4] By letter dated 19 April 2016 the delegate requested the applicant provide further documents, including a “fully completed” Part B and Part C of the TPV application form. [5] By 27 June 2016 the applicant secured the assistance of “The Humanitarian Group”.[6] On that day the delegate sent to the Humanitarian Group an audio recording of the TPV interview.[7]

   [3] CB94

   [4] A copy of the audio recording of the interview was provided to the applicant’s representative by letter 27 June 2016 – see CB117

   [5] CB108

   [6] CB116

   [7] CB117

4. Before 1 August 2016 the applicant informed the delegate he had converted to Christianity.[8] By letter dated 1 August 2016 the delegate requested information in relation to the applicant’s having been baptised on 31 July 2016.[9] On 29 August 2016 the applicant’s representative provided to the delegate further material including a statutory declaration made by the applicant on 26 August 2016 (Statutory Declaration).[10]

   [8] CB119

   [9] CB121

   [10] CB167. The Statutory Declaration is at CB175-178

5. On 14 September 2016 the delegate decided to refuse to grant the applicant a TPV. On 16 September 2016 the delegate’s decision was referred to the Authority. On 20 March 2017 the Authority affirmed the delegate’s decision not to grant the applicant a TPV (first Authority decision).[11]

   [11] CB241

6. On 16 February 2018 the applicant applied to this Court for judicial review of the first Authority decision. Because he made the application outside the 35-day period prescribed by s.477(1) of the Act, the applicant was required first to obtain an order under s.477(2) of the Act extending the 35-day period.

7. On 28 June 2018 Judge Cameron ordered that the time for the commencement of the proceeding be extended on 16 February 2018 (Judge Cameron Judgment).[12] His Honour also ordered that the hearing of the application be listed for hearing.[13] On 18 October 2018 this Court quashed the first Authority decision, and the matter was remitted to the Authority for reconsideration. The Court quashed the first Authority decision because it accepted the Minister’s concession that the Authority made a jurisdictional error by failing to consider a claim that the applicant would face significant harm because of his use of drugs.

   [12] ASK18 v Minister for Immigration & Anor [2018] FCCA 1584

   [13] MFI7

8. The Authority informed the applicant that his case had been remitted to the Authority by letter dated 26 October 2018.[14] By 6 November 2018 the applicant had secured the assistance of the Refugee Advice and Casework Service (RACS) and of Legal Aid. On that day RACS provided to the Authority submissions (Further Submissions) and additional documents.

   [14] CB260

Claims for protection

1. As stated by the Authority, the applicant made the following claims:[15]

   a)The Iranian government and police mistreated the applicant because he was Muslim. The applicant stopped believing in Islam and no longer practises the faith.

   b)The applicant converted to Christianity and was baptised on 31 July 2016.

   c)The applicant started using illegal drugs in Iran in 1994 and went back to using illegal drugs when he was in the Australian community.

   d)The applicant has posted his religious views on Facebook.

   e)The applicant was arrested on a number of occasions; once for smoking during Ramadan, and another time for drinking alcohol. On another occasion the police arrested the applicant for possession of drugs, but he was able to pay bribes for his release.

   f)The applicant’s name was published in the data breach inadvertently committed by the Department of Immigration and Border Protection (Department).[16]

   g)The applicant is a failed asylum seeker returning from a western country.

   [15] CB327, [17]

   [16] The nature of the data breach is sufficiently described in the judgment of the High Court in Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 at [3]-[16]

2. The applicant stated his claims based on converting to Christianity in the Statutory Declaration, and may be summarised as follows:[17]

   a)The applicant became interested in the Christian religion when he was in Curtin Detention Centre (CDC). A visiting Jehovah’s Witness gave the applicant a Bible written in Farsi. For about four to five months after the visit, the applicant attended church sermons at CDC until he was granted the bridging visa on 9 June 2016.

   b)After the applicant started living in the community a friend of the applicant spoke to him about Christianity. After their discussion, the applicant decided he wanted to convert to Christianity.

   c)The applicant began to attend a particular church, his first visit occurring on about 12 June 2016. He regularly attended “all three sermons each week”.[18]

   d)In addition to attending church, the applicant practised Christianity by reading books and pamphlets at home that he was given after the sermons.

[17] CB175

[18] CB176, [6]

Authority’s reasons

1. The Authority first identified the information that was before it, which of that information was “new information” within the meaning of s.473DC(1) of the Act, and, to the extent there was “new information” before it, whether the requirements of s.473DD of the Act were met in relation to the new information.

New information

1. The Authority considered that, to the extent the Further Submissions discussed the findings of and other matters before the delegate, they did not constitute new information pursuant to s.473DC(1) of the Act.[19] The Authority then identified the following as “new information”.

   [19] CB324, [5]

2. First, a claim that the applicant continues to strengthen his faith and continues to practice Christianity, and that the applicant continues to read the Bible and pray, supported by a photo of the applicant’s Bible written in Farsi. The Authority was not satisfied there were exceptional circumstances to justify considering this new information pursuant to s.473DD(a) of the Act.[20] The Authority found the information is only an assertion accompanied by a photo, which did not indicate that the applicant reads the Bible.

   [20] CB324, [6]

3. Second, information intended to show that numerous people in the Iranian community in Australia and in Iran are likely to know that the applicant converted to Christianity; and that it is likely the applicant has been identified as a member of the church given that the church has a high Iranian congregation; that the applicant’s baptism was attended by a number of people; and that the baptism was filmed and could have been shared including with the Iranian authorities. The Authority was not satisfied that there were exceptional circumstances to justify considering this new information under s.473DD(a) of the Act. It found the information has very limited probative value in assessing the applicant’s claims; and it appeared highly speculative that the Iranian authorities became aware of this information.[21]

   [21] CB324, [7]

4. Third, excerpts from a range of country information sources that post-dated the delegate’s decision relating to the treatment of Christian converts, house churches, apostates, drug users, and prison conditions. This new information included the latest Country Information Report on Iran issued by the Department of Foreign Affairs and Trade (DFAT) which the Authority noted contained “authoritative and up to date information on the situation for apostates, drug users in Iran and also for returnees”. The Authority was satisfied there were exceptional circumstances to justify considering this new information under s.473DD(a) of the Act because the information was not, and could not have been, provided to the delegate before she made the decision, and that s.473DD(b)(i) was met. [22]

   [22] CB325, [8]

5. Fourth, a claim that the applicant is now a participant in a methadone program, and that he has sought copies of his medical records from detention. The Authority was satisfied there were exceptional circumstances to justify considering this new information under s.473DD(a) of the Act and that the information was not, and could not have been, provided to the delegate before she made her decision, and that s.473DD(b)(i) is met. The Authority, however, noted that these records had not been provided to it.[23] The Authority decided not to seek such information under s.473DC(1) of the Act because it accepted the applicant is on a methadone program, and there were privacy constraints to the Authority accessing the medical records of applicant.[24]

   [23] CB325, [9]

   [24] CB325, [10]

6. Fifth, there were:

   a)      a number of Facebook posts made by the applicant said to date from 2013 to 2018 that are critical of the Iranian regime, in particular the regime’s use of hanging, posts relating to Christianity, and a post depicting the applicant with alcohol;

   b)      screenshots of four public political Facebook groups of which the applicants claims he is a member;[25] and

   c)      information regarding examples of organisations liked by the applicant on his public Facebook profile, and country information in relation to these organisations.

   [25] CB325, [11]

7. The Authority was not satisfied there are exceptional circumstances to justify considering this new information. It found this new information lacked probative value in assessing the applicant’s claims: a number of the Facebook posts do not specify the year in which they were posted; no translations of the Facebook discussion groups were provided to the Authority; most of the Facebook posts consisted of the applicant’s sharing the posts of others, rather than original material by the applicant, thus suggesting very minor activity by the applicant; there was nothing before the Authority to indicate Iranian authorities became aware of the postings and the liking of the organisations, and the claims the Iranian authorities did become aware of them appeared highly speculative. Further, the Authority referred to country information that indicated that most people whom Iranian authorities arrested for their online activities were identified because of their offline activities, and there was no probative evidence to suggest that the applicant had been identified in such manner.[26]

   [26] CB326, [14]

8. Sixth, there was the following email the applicant sent to the Authority on 3 November 2018 (errors in original):

   Hello I told my lawyer that say to you important matter about my data bridge Iranian news paper article (Hamshari) that I gave to TPV team and they lost it so I gave to judge in federal court again but I think is is important that I mention to you and I must mention it that I am sure that we are just 3 of Iranian asylum seekers that have this article so that two of us accepted their cases and my cause is still open and continue so if my case reject by you again I ll publish this important document to whole Iranian asylum seeker groups and anyone involved to data bridge you know.

9. The Authority noted that the Further Submissions did not refer to this email, and the applicant had not provided the newspaper article referred to in the email. The Authority found that the new information contained in the email lacked probative value in assessing the applicant’s claims for protection and was, therefore, not satisfied that there existed exceptional circumstances to justify considering this new information under s.473DD(a) of the Act.

10. Having identified the new information and considered whether it would have regard to it, the Authority turned to the applicant’s particular claims.

Christian conversion

1. The Authority did not accept the applicant has genuinely converted to Christianity, or that he had been regularly attending church sermons while in detention. Nor did the Authority accept that the applicant would continue to practice Christianity on his return to Iran. Although the Authority took into consideration country information regarding the treatment of converts to Christianity, the Authority did not accept the applicant fell within this category. The Authority was not satisfied the applicant’s religious conduct in Australia was engaged in otherwise than for the purpose of strengthening his claims for protection.

2. The Authority principally relied on what the applicant said during the TPV interview, namely, that members of Jehovah’s Witnesses had attended the detention centre and religion was discussed; the applicant researched Christianity but was not interested; and there were aspects of the Bible that were not acceptable to the applicant, and he did not further engage with the Jehovah’s Witnesses.[27] The Authority also relied on the applicant’s representative’s submissions of 22 July 2016 not mentioning his interest in Christianity or his attending churches, and the “suddenness with which he purported to embrace Christianity and become baptised”.[28]

   [27] CB328, [23]

   [28] CB328, [24]

3. The Authority, therefore, found that the applicant does not face a real chance of harm because of his claimed Christian conversion.[29]

   [29] CB328, [25]

Non-practice of and views on Islam

1. Although the applicant, in his hand written answers in the TPV application, stated he was persecuted because of his religion as a Muslim, the Authority considered the applicant did not claim he feared harm because he is a Muslim.[30]

   [30] CB329, [27]

2. The Authority accepted the applicant had pretended to practice Islam over a considerable period; that the applicant stopped practising Islam 5-6 months before he departed Iran and he disclosed this to his family; the applicant had separated from his wife in 2010 because he had insulted the religion; the applicant’s sister refused to let the applicant enter her house after the applicant stated he was not practising Islam; and the applicant has different religious beliefs to his brother. The Authority found, however, that, other than some comments from his sister, the applicant did not experience any repercussions from his ceasing to practice Islam.[31] Nor did the applicant suffer any repercussions from having insulted Islam in 2010, the Authority noting there was nothing to indicate he insulted Islam publicly.[32]

   [31] CB330, [32]

   [32] CB330, [32]

3. The Authority did not accept the applicant faces a real chance of harm because of any past or future social media posts.[33] Although the applicant claimed at the TPV interview that he had publicly posted on Facebook his views on Islam, the Authority noted that the applicant did not submit any evidence of his posts to the delegate other than providing his name on Facebook. The information before the delegate was that Facebook account settings restricted public access to the information it contains. The Authority referred to country information that Iranian authorities have stopped Iranian citizens arriving at the airport and forced them to log into their social media accounts and in some cases delete controversial information. The Authority, however, referred to more recent country information that authorities may not have capacity to conduct widespread online surveillance and it is more the case that individuals’ offline, non-digital activities attract the attention of authorities to a person’s social media contributions. The Authority accepted that the applicant’s Facebook friends would have been able to share his posts and inform others of his social media activity. The Authority found, however, there was nothing before it to indicate this had occurred, or that the applicant has an activist or dissident profile to the extent that any of the applicant’s offline activities would have or will come to the attention of Iranian authorities.[34]

   [33] CB332, [31]

   [34] CB330, [31]

Alcohol and drug use

1. The Authority accepted the applicant was arrested for drug possession in the past but succeeded in paying for his release; that the applicant was arrested in approximately 2008 or 2009 because he was smoking in public during Ramadan; and that in 2011 the applicant was caught smelling of alcohol in public and was jailed and lashed. The Authority, however, noted that the applicant was either released or punished in each circumstance and he did not claim to have been of adverse interest to Iranian authorities when he left Iran in 2013. The Authority, therefore, found the applicant does not face a real chance of harm because of these incidents and his past alcohol use.[35]

   [35] CB331, [36]

2. While the Authority accepted the applicant was previously arrested and punished for alcohol use, it gave far greater weight to more recent country information regarding the widespread use of alcohol across Iran, the change in the approach of Iranian authorities in viewing alcohol as a medical issue rather than a religious problem, and that media reports of prosecutions for alcohol consumption exist, but are not common.[36] The Authority, therefore, concluded that the chance of the applicant being harmed on his return in relation to his past or future alcohol use is remote and not real.[37]

   [36] CB332, [41]

   [37] CB333, [47]

3. The Authority accepted the applicant is currently undergoing a methadone program in detention and that, given the applicant’s history of drug addiction and the need for ongoing treatment, the applicant may use drugs on his return to Iran, including marijuana, oxycodone, crystal meth, and heroin. The Authority, however, accepted country information to the effect that police do not generally victimise or harass drug addicts, though they may occasionally round them up; and that, although there are few services available outside Tehran to assist drug users, the applicant is from Tehran. For these reasons, the Authority concluded that the chance of the applicant being harmed on his return in relation to his past or future drug use is remote and not real.[38]

   [38] CB333, [47]

Failed asylum seeker

1. The Authority accepted the applicant may be seen as a failed asylum seeker from a western country. Relying on a report issued by DFAT that Iranian authorities pay little attention to failed asylum seekers on their return to Iran, the Authority was not satisfied the applicant faced a real risk of persecution because he would be an asylum seeker from a western country.[39] Consistent with the findings it had already made that the applicant was not of any adverse interest to the Iranian authorities when he departed, the Authority was satisfied there was no evidence before it that suggested the applicant had been involved in activities in Australia that would have brought him to the adverse attention of Iranian authorities.[40]

   [39] CB334, [49]

   [40] CB333, [48]

2. The Authority noted the applicant was no longer in possession of his passport and would require a temporary travel document issued by Iranian diplomatic representatives if he were to return. While the Authority referred to country information which shows that Iran has historically refused to issue such travel documents to allow for the voluntary returns of its citizens from abroad, the Authority noted that on 19 March 2018 Iran and Australia signed a memorandum which included an agreement that Iran facilitate the return of its nationals who arrived after this date who have no legal right to stay in Australia.[41] The Authority, therefore, found that if the applicant were to return to Iran it would be voluntarily.

   [41] CB334, [52]

Data breach

1. The Authority accepted that in February 2014 certain information concerning persons in detention, including the applicant, was inadvertently published on the Department’s website (data breach). The information consisted of each person’s name, date of birth, nationality, the fact the person was an irregular maritime arrival, and the person’s detention status. The Authority noted that although there is nothing to suggest the Iranian authorities were aware of the data breach, that possibility cannot be discounted.

2. The Authority referred to the applicant’s claim that he had read an article in an Iranian newspaper which stated that the information of 10,000 asylum seekers had been published, and that in relation to 30% of that 10,000 the authorities had accessed interview recordings and disclosures made by asylum seekers. The Authority noted, however, that the applicant did not provide a copy of the article, and found there was no evidence the data breach revealed interview recordings or claims the applicants had made. The Authority, therefore, did not accept the applicant had read any such newspaper article.[42]

   [42] CB335, [54]

3. The Authority also referred to the applicant’s claim that his position was different from other applicants whose details had been disclosed in the data breach. Here the applicant relied on his having been a soldier who had fought in the Iran/Iraq war in 1982-1983. The applicant also relied on his having been approached by government officials during the 2009 protests with instructions that he attend the protests and shoot at the protesters, and the applicant refusing to follow those instructions. The applicant claimed he got into trouble; that those who did participate received benefits, like free petrol and extra loans from the government; and the government had viewed the applicant’s participation in the war as supporting the government, and they would be interested and concerned about what information the applicant had disclosed in his claims for protection in Australia. The Authority did not accept these claims.

Conclusion

1. The Authority concluded that, having considered the applicant’s claims separately and cumulatively, it was not satisfied that the problems the applicant raised, and the reasons he gave for not being removed to Iran, involves a chance of “significant harm” for the purposes of s.36(2A) of the Act. Further, relying on findings it had previously made, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The Authority, therefore, found that the applicant does not meet the complementary protection criteria provided for by s.36(2)(aa) of the Act.

Grounds of application

1. The applicant’s grounds of application are detailed, but they are not separated into paragraphs. It appears, however, that the grounds, at least for the most part, are directed to particular paragraphs of the Authority’s reasons. It would therefore assist in my consideration of the grounds on which the applicant relies to reproduce the grounds in full but divide them by number, each number identifying either the particular paragraph of the Authority’s reasons to which the ground is directed or, where the grounds do not identify any particular paragraph of the Authority’s reasons, identifying what may reasonably be considered to be a single subject.

2. The grounds are follows (errors in original):

   [1] At first I must to say I did mistake about it at the first of my TPV interview I told to that lady that although I knew false cases but I decided to tell true of my life and my case to you but unfortunately now I must say that I did mistake and I must listen to my friends advises that told me tell to Immigration department false cases and if I did that now I was successful like many others people that took acceptance with falsehood and deception.

   [2] Other matter is I told some important matters to my ex lawyers that to say them to court or IAA but unfortunately they did not mention them and I think maybe it effected to court or IAA decisions so for this reason I decided to go to Federal court alone that at least I to be sure that I mention my words.so other matter is when a lawyer from Racs company started to talk to me about to fix my case for send to IAA I told her I am afraid to give more information to Immigration department because they did it before (data bridge) and maybe again it happen and they make serious problems for me and they just to say we are sorry about that and please mention it to IAA but she did not do that.

   [3] other matter is TPV team or IAA in the most part of their refusal letters mentioned it that my goal about my religion change to Christianity was just for accepting of them and I am a deception and alier and  now my question is How did they come to this conclusion? And how can they prove this claim? What are their mandates and what are they for? Does anyone accept a claim without logical reasoning that is unacceptable? Is this a deception can not pose a risk to me? If one of the people filmed at the Day of my baptism was the regime’s agent and he or she sent that film to Iranian authority when I back to Iran and asking me why you did that and I say to them sorry that was just display they will accept? Or if I insult to Islam or regime or supporting Christianity and Iranian authority or even extreme Muslims to Informed that they will accepting me if I ll tell them sorry it was just display? Contrary to what you think, I would say it was my wish that I was not afraid of returning to my country so there was never some problems like the Data Bridge that now I am really afraid especially about data bridge.

   [4] Now I mention some my answer to some of sections of IAA refusal letter in section 31 – they mentioned that I did not prove any thing that show to you that I publishes my comment against Islam but I do not know why you said it because I sent screen shot of many of my posts or of my comment against Islam to my lawyer that you send to you although the most of them are in Farsi language and maybe you did not translate them or did not have enough time to do it even I sent a picture of a woman police in Iran that is behind the about 100 smart phone by many different account and searching for find anyone that publish commented or posted against Islam and Iranian regime too.

   [5] In section.in section 34- I told you before that my second biggest reason to come to Australia has been narcotics, and I’ve just talked about you briefly about this, and if I want to say it completely, it will be a huge case so that I intend to publish a book about it in future t, which I am sure for others, especially young people will be useful and if you or anyone else only get one item of them hurt your feeling. Have you ever thought that I am a human being? Why, although I can go back to my country, but I stay in detention, I endure so much trouble with my family, especially away from the only my daughter who always is in my mind and is in my heart? Is my speech showing madness in it? One of my goals was that I did not using any drugs, and I tried, although I had some mistakes in 2013, but when I returned to Sydney in 2016, I contacted with NA group and started to painting and everything went well, and even I told me my case worker that I want to get tax number but after few days suddenly and unfortunately I received a news about my rejection case from Immigration Office by phone so I started using drugs again. In fact, if I use narcotics, I have done my own work, and if I do not use it I did a great job so Without any doubts if I was in Iran and continued to use drugs now I was not alive so you must thinking that I’m not foolish that I’m still here, because I have an Important goal.

   [6] In section 51- they mentioned about my document that said 3 of Iranian refugees arrested by regime you said two of them was political refugees and for this reason regime arrested them that I must mention what is my activities name? Am I comedian person? Of course that my activities are political even more dangerous of them and also I doing activities against Islam and supporting Christianity too.

   [7] In section 53 that you said that you can not deport me by force and I must mention it to remember that in the first court about data bridge court sad no one can deport any one from this list by force too and in fact by considering whole items about myself I told this comment at the end of my TPV interview that It does not threaten me at all. If I return to Iran, but I do not want to live in Iran any more and in fact if Iran rules were different with now or my name was not on the data bridge list or you can deport me by force I never mention this comment to you.

   [8] In section 54- they mentioned that I did not give to them Iranian article news paper (Hamshahri about data bridge) and I just read that I must mention it I think that they forgotten or to display to forgotten that in federal court hearing I showed this article to judge Cameron so I said to judge Cameron asked me may I have this article and translate it? And I said why not and I have this article to him and in next federal court session judge Cameron translated that and attached to my case and it was one of the most important reason judge Cameron sent my case to IAA for again considering although I can guess why they do not like and do not want to accept some facts that wrote inside the this article that showed that Immigration depatrment said lie to everyone about data bridge because why they lost this article and other my document about data bridge that inside that article Senior lawyers from Immigration department mentioned that 16 countries including Iran and Russia and Malaysia got this information but unfortunately I did not find that article again so TPV team lost this article and Iranian news paper article but I can found just Iranian article again so I must mention it that one of the Iranian my friend (Mr MH) that his name was in data bridge took accepted and Immigration department wrote inside the his acceptation letter that we accepted you because your name is on the data bridge list so What is the different between me and he because his name like me was on the data bridge list? And judge told me too that if you have any more documents you can give them to IAA but you did not give to me enough times that I can translating my them so I do not know why you were in harry? Also I must mention it I have many problem here and my situation is completely different with other one that are free for example for translate my document I must find someone outside that helping me or formal translating need to about $2000 dollars that I did not have this much and I am unable for do somethings because I am in detention so I must mention it that I remembered while during the federal court sessions I needed 10 days more times and I sent an email to court and court sent to me two email addresses that you must send your request to them than I sent an email to both addresses but even they did not answered but later TPV team forced me to accepting 3 months more times and I said no I am not agree with that so why I must give to you 3 months more opportunity but you did not give to me even 10 days more? But I was forced with my lawyer that if you did not accepting 3 months maybe next court to be 5 or 6 months later and then I accepts it is that fair? Of course for you 3 months is nothing because you are free but for me meaning is 3 more months stay in Immigration detention.

   [9] In section 11- they mentioned that the dates of my Facebook activities are new that I must explain it that when I was outside my activities were limited because I do not access to computer and I used by phone but inside the detention we have computer and I can make post and do more and better activities so other matter is I was member in many groups that for many reasons I leaved them and I became member in new groups and some of these group recently made like Farashgerd about 3 months ago also I commented below the important politic and Islamic Farsi pages in youtube since about 5 years ago so about 1 years ago when I was threatened by someone for my safety and my security I changed my name to [MN] and this is hard to find my comments that I released under the pages and take time but if you need I can find them.

   [10] In section 14- I may say it that the main reason is that I did not have lawyer so interview did not said to me any thing about them or did not want me to do anything or bring any thing about my case or about my Facebook activities.

   [11] In section 16 I can not understand how they ignore this important piece of information such as the article published by the Iranian daily newspaper about data bridge and how should I not fear that my name might be in one-third?

   [12] In section 21- they said I just one week before my Baptism I went to church that how is it funny? Because I went to this church since 2013 and also to Iranian church inside the parramatta park or in a church behind the parramatta Municipality building or in 2014 inside the Villawood IDC that Iranian Christian came every week in visit location for about 4 months after that in detention in curtien and It lasted for 8 months from my TPV interview is it wise and believable that after eight months of doing this, I am going to do something that would be your deception? Please remove those pessimistic glasses and do not see everyone with one eye.

   [13] In section 22- I do not know why you think I display about my Christianity? I must say it I had this Bible since 2015 and also I had it inside my TPV interview I told you before I want to tear this book and others and anything that showed that I am a Christian and just I will only keep my faith In my heart, and I want to clear this issue of Christianity from case contrary to my inner will, just because of your please, but I must answering to whole parts of your laugh comments.

   [14] In section 25 I do not know how you let to yourself to call me that I am a swindler and my goal for my religion change was just for acceptation by you how you are rude?

   [15] In section 6, they have said that the photo I have downloaded from Bible book and sent to them does not indicate that I pursue this religion in a meaningful way, so what I must do that show to them that I am really a Christian?

   [16] In section 7 they said again that I did not give these information in TPV interview that I must say it is clear that I did not have any lawyer or anyone else that help me or tell to me what I must do and after that in my TPV interview I has some blasts about Christianity and also I told to that lady maybe in future I to be interest and to become a Christian and after about 8 months I became a Christian after finished my investigations so I did not know in that time that they want to rejected my case Otherwise, I would have prepared all the information I already knew I needed, and even that interviewer did not tell me anything about it, and I thought that they did not need them.

   [17] In section 9 they again said that I did not give them new information while I never mention any things about Methadone or hat was the my reason that I used drugs again because in 2016 after I got bringing visa when I went to Sydney I started to painting and I was in NA group even after 4 months I told to my case worker that I want to get Tax number but unfortunately after few days someone from Immigration department called me by phone and told me your case rejected and I started using drugs  again Are these not a new information? At the end of these I must to say i have answer to whole parts of their refusal letter that showed their answer were not facts and i do not know these are legal objection or not but I explained at the first of my words about it .

3. At the hearing before me the applicant, who is not legally represented, tendered documents, and made submissions. To a significant extent, what the applicant said overlapped with the matters stated in the grounds of application. I therefore propose, first, to consider each of the submissions the applicant made during the hearing and, as I do, also identify the grounds stated in the grounds of application that are related to the submissions the applicant made before me. I will then consider those parts of the grounds of application the applicant did not address at the hearing before me.

Unreasonable reliance on period between grant of bridging visa and conversion to Christianity and related grounds

1. The first matter the applicant addressed related to the Authority’s reliance on the time by which, after he obtained a bridging visa, the applicant converted to Christianity. The applicant submitted it was unreasonable for the Authority to rely on that matter as a ground for not accepting the applicant’s claim that he had converted to Christianity. The applicant referred to two documents in the bundle of documents I marked “MFI1”.[43] These documents are also included in the Court Book. The applicant submitted the documents show that before he converted to Christianity he had displayed an interest in Christianity.

   [43] I paginated by hand MFI1. The two documents are pages 1 and 2.

2. Whether or not the Authority acted unreasonably in relying on what it found to be a short period between the applicant’s obtaining a bridging visa and his converting to Christianity must be assessed by reference to all of the matters on which the Authority relied. As I have already noted, the Authority particularly relied on what the applicant said during the TPV interview, namely, that members of Jehovah’s Witnesses had attended the detention centre and religion was discussed; the applicant researched Christianity but was not interested; and there were aspects of the Bible that were not acceptable to the applicant, and he did not further engage with the Jehovah’s Witnesses.[44] That indicates the Authority was aware the applicant claimed that he had shown an interest in Christianity before he converted. It was reasonably open to the Authority, however, also to rely on the evidence the applicant gave at the TPV interview that, after he researched Christianity, he was not interested, together with the “suddenness with which he purported to embrace Christianity and become baptised”, to conclude it was not satisfied the applicant had converted to Christianity.[45]

   [44] CB328, [23]

   [45] CB328, [24]

1. The submission the applicant made at the hearing overlaps with what is claimed and stated in grounds [3], [12], [13], [14], [15], [16] of the grounds of application. Ground [3] appears to claim that it was irrational for the Authority to accept the applicant underwent a baptism and yet not be satisfied that the applicant had converted to Christianity because by undergoing a public ceremony of baptism, the applicant exposed himself to the risk of Iranian authorities becoming aware of that fact and, for that reason, exposed himself to the risk of harm. I do not accept that claim. The Authority’s finding about the applicant’s not having converted to Christianity must be viewed with the other findings it made. These include the Authority’s not accepting that the applicant would wish to practice Christianity on his return to Iran,[46] or that the applicant, on his return to Iran, will publicly renounce Islam,[47] or that there was evidence to support the Iranian authorities are aware of the data breach, or that there was evidence that the data breach revealed details of interview recordings or the claims applicants made.

   [46] CB328, [24]

   [47] CB330, [32]

2. Ground [12] is directed to paragraph 21 of the Authority’s reasons, where the Authority refers to its having taken into account the applicant’s baptism certificate dated 31 July 2016, a letter of support from the pastor dated 14 August 2016, a copy of a photo of the applicant with the pastor, evidence of the applicant’s completion of Bible study subjects, church lessons, a workbook, and where the Authority says it gives the pastor’s letter limited weight because of the short period the pastor had known the applicant. The applicant asserts he went to “this church” since 2013, and also to an Iranian church inside Parramatta Park, or in a church behind the Parramatta Municipality building or in 2014 inside the Villawood Immigration Detention Centre (Villawood IDC), and then submits that in those circumstances he would not seek to deceive. The difficulty with his submission is that the ground does not identify whether he made these assertions in any document he provided in support of his application for a TPV, or during the TPV interview. Ground [12], therefore, is not capable of giving rise to any jurisdictional error because it refers to assertions of fact for which there is no evidence to suggest the applicant made in the course of his application for a TPV.

3. Ground [13] is directed to paragraph 22 of the Authority’s reasons where the Authority states that it has taken into account the Statutory Declaration, and summarises its contents. It is difficult to understand the contents of this ground. It appears to assert that whether or not the applicant is a Christian is a matter of faith, not of external manifestation. In any event, ground [13] does not disclose any jurisdictional error.

4. Ground [14] is directed to paragraph 25 of the Authority’s reasons which contains the Authority’s conclusions in relation to the applicant’s claims based on his having converted to Christianity. I take this ground to go no further than registering strong disagreement with the Authority’s conclusions. That, however, does not disclose any jurisdictional error.

5. Ground [15] is directed to paragraph 6 of the Authority’s reasons which refers to the Authority’s consideration of the “new information” consisting of the claim the applicant continued to strengthen his faith and continues to practice Christianity, and that the applicant continues to read the Bible and pray, supported by a photo of the applicant’s Bible written in Farsi. The applicant claims, in effect, that the Authority is unreasonable or irrational in finding there was some other way to show the applicant is a Christian. If that is the intent of the ground, I do not accept it. It was reasonably open to the Authority to find that a photograph of a Bible claimed to be owned by the applicant is not probative of the applicant’s being a Christian.

6. Ground [16] is directed to paragraph 7 of the Authority’s reasons where the Authority deals with the second item of “new information” to which I have already referred. The applicant claims that he did not have the benefit of a lawyer at the TPV interview, that the applicant told the delegate that the applicant might in the future be interested in Christianity, and that, had he known an adverse decision would have been made against him the applicant would have provided the information. That does not disclose any jurisdictional error. Further, whether or not the applicant would have provided the information, the Authority found it had limited probative value.

7. This part of the applicant’s case, therefore, discloses no jurisdictional error.

Unreasonably failing to find risk of harm on the basis of Facebook posts and related grounds

1. The second submission the applicant made at the hearing before me is that the Authority acted unreasonably to the extent it found the applicant did not face the risk of harm because of the Facebook posts. The applicant referred to the documents contained in pages 3-43 of MFI1. He said he provided these documents to RACS and they provided 17 of them to the Authority, and he was unsure which of the documents he gave to RACS were provided to the Authority. I did not understand the applicant to submit, however, that RACS acted wrongly by providing only 17 of the documents to the Authority. The applicant’s submission was that it was unreasonable for the Authority not to find the applicant faced a real risk of harm, given the material that was provided to it.

2. The Authority considered the applicant’s claims based on harm because of the Facebook posts he made, and gave reasons why it was not satisfied the applicant became exposed to a real risk of harm because of the Facebook posts he made. It was reasonably open to the Authority not to be satisfied, and for the reasons it gave. This part of the applicant’s case, therefore, also discloses no jurisdictional error.

3. The second submission overlaps with grounds [4], [9] and [10] of the grounds of application. Ground [4] is directed to paragraph 31 of the Authority’s reasons where the Authority concludes, and gives reasons for concluding, that it does not accept that the applicant faces a real chance of any harm as a result of any past or future social media activities. The applicant characterises the Authority as having found the applicant did not prove anything, and refers to his having sent screenshots of his posts to his lawyers, and “maybe you did not translate them”. The Authority was under no obligation to translate the documents the applicant provided to it. That was recognised by RACS in the Further Submissions where it was said that the applicant “is currently seeking translations of the attached screenshots however this is difficult due to his lack of finances due to the significant time he has been in detention”.[48] At any rate, ground [4] goes no further that asserting the applicant provided proof that he faced a real risk of harm because of his social media activities. At most it seeks to gainsay the Authority’s findings and, therefore, goes no further than appealing to the merits of the claims for protection he made.

   [48] CB275, at 292

4. Ground [9] is directed to paragraph 11 of the Authority’s reasons which describes the fifth class of “new information” to which I have already referred, namely, the applicant’s Facebook activities. Here the applicant appears to do no more than explain the reasons for the variation in the frequency of the applicant’s use of Facebook, and the nature of his activities. It does not disclose any jurisdictional error.

5. Ground [10] is directed to paragraph 14 of the Authority’s reasons which contains the Authority’s findings that it was not satisfied there are exceptional circumstances to justify considering what I have identified above as the fifth class of “new information”. The applicant appears to claim that he did not have a lawyer to advise him that he should have brought information about his Facebook activities. That does not disclose any jurisdictional error.

Applicant’s being Janbaz

1. The third submission the applicant made at the hearing before me arises from his being a veteran of the Iran/Iraq war. The applicant said such veterans were given the name of “Janbaz”. The effect of the applicant’s submission is that because he is a Janbaz the risk of the Iranian authorities looking into his activities is greater than for other members of Iranian society. This reflects, at least in broad terms, the claim the Authority considered, namely, that because the applicant had fought in the Iran/Iraq war Iranian authorities would be interested and concerned about what information the applicant had disclosed.[49] The Authority did not accept this claim.

   [49] CB335, [55]

2. The third submission discloses no jurisdictional error. It goes no further than making a claim that is only relevant to the merits of the applicant’s claim that he is entitled to Australia’s protection.

Claim based on refusal to shoot protesters

1. The fourth submission the applicant made is that the Authority ought to have accepted the applicant’s claims that the Iranian authorities instructed the applicant to shoot at protesters. This submission seeks merits review and, for that reason, discloses no jurisdictional error. The Authority did not accept the applicant’s claim that he was instructed to shoot protesters because there was nothing before it that indicated that former soldiers were recruited to attack protesters in 2009.[50]

   [50] CB335, [56]

Asserted claim based on Muslim extremists and brother’s connections

1. The fifth submission the applicant made is that his major fear is the extremist Muslims. He also said he had feared his family, and in particular his brother. The applicant said these were issues he emphasised to the RACS lawyer to advise the Authority. The applicant said he told the RACS lawyer that he feared his brother because he is very powerful and is a wealthy person in Iran, that when his brother wore police uniform the applicant knew he was a policeman, but when his brother “starting wearing civilian clothing, he wouldn’t say what he was doing, but it was obvious what he was doing”. The applicant further said that “from the missions that he would mention, “I’m going on a mission”, I would understand”.[51] The applicant said that RACS informed him they did not find these issues important to mention to the Authority.

   [51] T31.35

2. These matters do not raise any jurisdictional error by the Authority. First, there is nothing to suggest there reasonably arose from the material before the Authority a claim that the applicant feared Muslim extremists, as opposed to Iranian authorities. Second, that the applicant may have requested his representative to put forward matters to the Authority but the representative advised that the matters were not important cannot by itself raise any reasonable case that the Authority made any jurisdictional error, or that the applicant’s representative gave negligent or dishonest advice.

Audio recording

1. The sixth submission the applicant made at the hearing before me is that the audio recording of the TVP interview with which he was provided was incomplete. The applicant said he had listened to the audio recording that was provided to him. I asked the applicant whether he could tell me in what way the audio recording he listened to was incomplete. The applicant said he recalls towards the end of the hearing the delegate said to him that she did not think the applicant’s life was in danger, to which the applicant said he responded that he had spent this much time in Australia that that was enough; he did not want to return to Iran. The only other matter on which the applicant relies for stating the audio recording was incomplete is that during the second day of the interview the delegate did not mention the time the hearing started as the delegate should have. I asked the applicant whether he could tell me if there was anything that occurred during the second day of the hearing before the delegate that the applicant recalled was said but not recorded. The applicant said he would have to “go and look into my records and papers”, and he has to check his emails with a “Ms Annay”. That, I think, is intended to be a reference to Ms Anne Himmelreich, a lawyer from Legal Aid, who assisted the applicant after the first Authority decision was set aside. At the end of the hearing I granted the applicant leave to provide to the Court by 17 April 2019 a copy of all communications to and from the applicant which: (a) state that the audio recording of the applicant’s interview by the delegate is incomplete; or (b) refer or relate to the audio recording of the applicant’s interview by the delegate being incomplete.

2. The applicant provided to the Court by facsimile two sets of documents, one set on 16 April 2019, and the other set on 23 April 2019. I have marked these two sets of documents in chambers “MFI8” and “MFI9” respectively. I have paginated the set of documents that comprise MFI8. At pages 9-11 of MFI8 there are emails between the applicant and Ms Himmelreich. At page 13 there is what appears to be an unsworn affidavit by the applicant prepared in connection with the proceeding that was before Judge Cameron. Paragraph 2 states:

   The interview with the TPV went for 7 hours over 2 days. The tapes for the interview, which I have listened to, are much less than that.

3. The material before me shows nothing more than that the applicant believed that the audio recording of the TPV interview he listened to is incomplete. There is no suggestion that the applicant’s belief was brought to the attention of the Authority; and there is nothing to suggest that this was the product of some oversight by those representing the applicant. The inference that is available to be drawn, and which I draw, is that although the applicant may have believed the recording was incomplete, there is no evidence the applicant identified to those representing him the matters that occurred during the TPV interview that were not included in the audio recording.

4. Also relevant is exhibit MFI3. That is an email sent on 7 September 2018 from a barrister to Ms Himmelreich in which the barrister confirmed he listened to three audio files of the TPV interview.[52] It appears the barrister undertook this task to determine from the audio recording whether the applicant referred to three documents the applicant claimed he provided to the delegate in support of his claim. Nevertheless, the barrister did not appear to suspect that the audio recordings were incomplete.

   [52] These communications attract legal professional privilege. I informed the applicant that communications between him and his lawyers are privileged, but that he had the right to waive that privilege (T45). In my opinion, given what I understood the claim for which the applicant wanted to rely on these communication, it was appropriate for the applicant to waive privilege. The applicant said he would do what is necessary to defend himself.

5. This part of the applicant’s claims also fails.

Newspaper article on data breach

1. The seventh submission the applicant made at the hearing before me relates to three documents the applicant claims he provided to the delegate, but which the Authority did not refer to. The submission the applicant made before me is in substance the same submission the applicant made before Judge Cameron as recorded in the Judge Cameron Judgment:[53]

   The applicant gave evidence at the hearing that he had provided three documents to the delegate at the end of his interview in December 2015, two of which had not been reproduced in the Court Book or referred to by the delegate in her decision record.  One of those documents was said to have been an article published in the Iranian press about the Department’s data breach.  The other document was said to have been an article apparently referring to comments made by a senior immigration lawyer that sixteen countries, including Iran, were aware of the data breach.  At the hearing the applicant tendered what he said was a copy of the first article (exhibit A1).  The document was not in English and the court interpreter confirmed that it was written in Persian. The applicant said that he had been unable to find a copy of the other document.

   [53] ASK18 v Minister for Immigration & Anor [2018] FCCA 1584, at [18]

2. Overlapping with this submission are grounds [8] and [11]. Ground [8] is directed to paragraph 54 of the Authority’s reasons which deals with the applicant’s claims based on the data breach, and his reliance on an article which the applicant claims states that 10,000 asylum seekers had been published in the data breach and “that 30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers”. Ground [8] sets out what the applicant said before Judge Cameron and what Judge Cameron said to the applicant. It also claims that the applicant was not given sufficient time to translate documents, given he did not have money to pay for a translation. Ground [11] is directed to paragraph 16 of the Authority’s reasons which refers to the applicant’s claim that he had read a newspaper article concerning the data breach in his interview with the delegate.

3. Mr Leerdam, who appeared for the Minister, informed me that the applicant had provided two documents to the Department in support of his application for a TPV, but which were not provided to the Authority before the first Authority decision was made. These two documents are at pages 255-258 of the Court Book, and they were sent by email to the Department on 4 January 2016.[54] The first document is a statement by the applicant; and the second document is a document headed “Mr . . . 3 Iranian who had returned to the country arrested”. Mr Leerdam informed me that it was because the first of these two documents had not found their way to the Authority that grounded the Minister’s concession that the first Authority decision did not consider the applicant’s claim based on drug use.

   [54] CB254 One document was  a statement by

4. There is additional evidence about whether the applicant had provided the three documents he claimed he provided; and that is contained in MFI3 to which I have already referred. The barrister noted in his email to Ms Himmelreich that there was no mention in the audio recording of the three documents.

5. The third document the applicant believes he provided to the delegate requires separate consideration. It is the document referred to in the passage from the Judge Cameron Judgment I reproduced above which is identified as exhibit A1. A copy of that document was before me, and I marked it as “MFI6”. The applicant tendered what is accepted to be a translation of MFI6, and I marked the translation “MFI2”. The applicant submitted that the translation was undertaken by, or at the request of, this Court. I do not accept that. There is nothing to suggest the Court took steps to have the document translated.

6. There is other evidence concerning the third document, and that is contained in the following passage from the delegate’s decision:[55]

   The applicant stated that he had read an article in an Iranian newspaper (Hameshar) regarding the data breach. According to the applicant the article stated that the information of 10,000 asylum seekers had been published and further that 30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers.

   [55] CB210

7. From this passage it is apparent that the applicant did not provide any newspaper article to the delegate but instead stated what he claimed was the effect of an article from an Iranian newspaper, “Hameshar” (Hameshar article).

8. On the evidence that was before me at the time of the hearing (I refer at the end of the reasons to information the applicant provided after the hearing), it appears that the Hameshar article was translated by no earlier than 8 November 2018, because that is the date that appears on the translation (being MFI2) after the words “Date Seen”. There is no evidence before me that the applicant instructed RACS to provide MFI2 to the Authority, although I understand the applicant to be claiming that he instructed or expected that RACS would do so and, to the extent this did not occur, he was tricked into believing that it had been provided to the Authority.

1. I am prepared to infer that the applicant’s representatives were aware of the existence of the translation. I am also prepared to infer that the applicant’s representatives possessed the original or a copy of MFI2, but they did not send the document to the Authority. I am not prepared to infer, however, that the applicant’s representatives did so through some inadvertence, or through some intention to deceive or trick the applicant. The more likely explanation MFI2 was not provided to the Authority is that it could not have improved the applicant’s case, and there was a real risk that it would have harmed the applicant’s case. That is so because, contrary to what the applicant told the delegate the Hameshar article stated, MFI2 does not state “that 30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers”. In other words, MFI2 does not fully support what the applicant told the delegate the Hameshar article stated.

2. I find on the basis of the material before me, therefore, that the three documents I have identified are the three documents the applicant believes he provided at the TPV interview; that none of the documents was provided to the delegate at the TPV interview; that the first two of the three documents were provided to the Department by email sent on 4 January 2016, but they did not find their way to the Authority and, therefore, were not considered in the first Authority decision; the applicant stated to the delegate what he claimed to be the effect of the Hameshar article; and what the applicant claimed to the Authority was the effect of the Hameshar article did not reflect the Hameshar article to the extent the applicant stated “that 30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers”.

3. This part of the applicant’s case, therefore, also fails.

Failure to consider matters relating to drug usage

1. The eighth submission the applicant made at the hearing before me is that the Authority did not consider the matters set out in the statement the applicant made that was provided to the Department on 4 January 2016 (this being the first of the three documents I have already referred to which the applicant believed he provided to the delegate during the TPV interview).[56] The applicant submitted that the statement referred to the reasons he used drugs in Iran, and the reason for which he used drugs in Australia. I do not accept the submission that the Authority did not consider the statement. The Authority considered the applicant had made a claim based on his drug usage; and the Authority referred to the fact that the applicant had suffered harm from the authorities in Iran because of his drug use, and that he used drugs in Australia. It is true the Authority did not refer to the reasons why the applicant claimed he began to use drugs in Australia, but that cannot reasonably have been considered to be relevant to any of the applicant’s claims for protection. This submission discloses no jurisdictional error by the Authority.

   [56] CB255

2. This submission overlaps with ground [5], which is directed to paragraph 34 of the Authority’s reasons. In that paragraph the Authority considered the applicant’s claims based on his drug use. Ground [5] goes no further than expressing disagreement with the Authority’s findings, and setting out matters which relate to the merits of the claims for protection he made based on his drug use. It discloses no jurisdictional error.

Medical records

1. The ninth submission the applicant made at the hearing before me relates to a document I marked “MFI4”. That is an email RACS sent to the applicant on 7 November 2018 attaching a consent to release medical information. The applicant submitted that complete medical information in relation to his condition had not been provided to the Authority.

2. This discloses no jurisdictional error. At paragraph 10 of its reasons the Authority referred to the applicant’s representative having submitted that medical records would be provided as soon as possible, and noted they had not been provided. The Authority, however, said that it accepted the applicant was on a methadone program.

Other grounds stated in grounds of application

1. There remains for me to consider those grounds in the application that I have not addressed or addressed in full, these being grounds [1], [2], [6], [7], [8], [10], [11], and [17]

2. Ground [1] is a statement to the effect that although he was aware that other claimants had put forward false claims, the applicant decided to put forward the true facts of his life. That by itself is an appeal to the credibility of the applicant’s claims for protection. The credibility of the applicant’s claims for protection, however, was for the Authority to determine. This does not identify jurisdictional error by the Authority.

3. Ground [2] is a general statement that the applicant instructed his former lawyers to put forward matters to the Authority but they failed to do so, and it was for this reason the applicant decided to go to the Federal Circuit Court alone. The applicant also states he is afraid to give information to the Department because of the data breach. The applicant does not in this part of his grounds of application identify the matters he instructed his lawyers to provide to the Authority but which they failed to provide. For that reason, it does not identify any jurisdictional error by the Authority.

4. Ground [6] is directed to paragraph 51 of the Authority’s reasons which refers to the applicant’s having submitted an article about the arrest of three Iranian nationals. The Authority gave the document no weight, one of the reasons being that the three persons appeared to be activists, and the document did not indicate they were failed asylum seekers. Ground [6] appears to claim that the characterisation the Authority gave to the three persons, namely, they were political activities, applied to the applicant. That claim is an appeal to the merits, and, therefore, discloses no jurisdictional error by the Authority.

5. Ground [7] is directed to paragraph 53 of the Authority’s reasons. That paragraph identifies the classes of information that had been disclosed in the data breach. It is difficult to understand what the applicant intends to claim in ground [7]. Perhaps it is intended to be directed to the Authority’s finding in paragraph 52 of the Authority’s reasons. The point of ground [7] appears to be that the Authority concluded that if the applicant were to return to Iran it would be voluntarily, but the applicant says that he informed the delegate he did not want to return to Iran. It is unclear in what sense the Authority used the expression “voluntarily” in the context of the applicant’s being required to return to Iran. Whether or not, however, the applicant’s return to Iran can properly be characterised as “voluntary” is not a matter that gives rise to any jurisdictional error, because it could not reasonably have given rise to any independent claim for protection. The deportation of the applicant to his country of nationality would be the necessary consequence of the applicant’s not being granted a protection or any other visa.

6. I have already referred to ground [8] in the context of Hameshar article. Ground [8] makes an additional claim. It refers to a friend, Mr H, having been granted protection because of the data breach, and the applicant asks why his case is different. Whether or not the assertion that Mr H was granted protection because of the data breach is true, it does not disclose any jurisdictional error.

7. Finally, there is ground [17]. This ground is directed to paragraph 9 of the Authority’s reasons which refers to the fourth item of “new information” to which I have already referred. The ground asserts that the applicant returned to using drugs after his application for a TPV was refused. That does not disclose any jurisdictional error. The Authority accepted the applicant was on a methadone program. Further, as I have already noted, it is true the Authority did not refer to the reasons why the applicant claimed he began to use drugs in Australia, but that does not appear to have been relevant to any claim for protection.

Other matters

1. For completeness I should refer to the other documents that comprise MFI8, and to MFI9. MFI8 contains an email from the applicant addressed to me.[57] What the applicant there states goes beyond the leave I granted the applicant to provide documents in relation to the audio recording. I have, nevertheless, read the email, and can say it raises nothing that the applicant had not in substance raised in his grounds of application, or in the submissions he made to me at the hearing.

   [57] MFI8, pages 3-6

2. MFI8 also contains an affidavit made by the applicant on 11 July 2018 for the purposes of the proceeding before Judge Cameron.[58] There is annexed to the affidavit what the affidavit describes as “a newspaper article referring to the DATA Breach”, and is said to be a copy of the document referred to in paragraph 18 of the Judge Cameron Judgment. I take this to be a copy of the text that is MFI6, that is, the Hameshar article. The affidavit states there is also annexed an interpretation of that article. That is a reference to an interpretation dated 9 July 2018. I have compared the translation that is annexed to the affidavit with MFI2. Although there are differences, they are not of substance. I take it, therefore, also to be a translation of the Hameshar article. The translation of the Hameshar article that is annexed to the affidavit, like the translation that is MFI2, does not contain a statement to the effect that “30% of that 10,000, the authorities had accessed interview recordings and disclosures made by asylum seekers”. This translation of the Hameshar article, therefore, does not cause me to have any doubts about the findings I have made earlier in these reasons.

   [58] MFI8, pages 19-23

3. The balance of the documents in MFI8 consists of downloads from the Internet about matters that appear to relate only to the grounds on which the applicant claimed protection, together with commentary added by the applicant. There is nothing in these documents that cause me to doubt anything that I have already determined in these reasons in relation to the applicant’s claims before me.

4. Lastly, I turn to MFI9 which consists of two documents. One is an email addressed to me that refers to the welfare officers not providing to the applicant the names of the Iranian Christian group that are said to have visited the applicant in 2014 at Villawood IDC. I have already noted that in ground [12] the applicant referred to, among other things, an Iranian church inside the Villawood IDC, and I have found that ground [12] does not identify whether he made these assertions during the TPV interview or in any document he provided in support of his application for a TPV and, for that reason, could give rise to no jurisdictional error. The second document is an article from the Internet together with commentary by the applicant that can only be relevant to the merits of the applicant’s claims for protection. The document does not cause me to doubt anything I have determined in these reasons for judgment.

Conclusions and disposition

1. The applicant has not demonstrated the Authority made any jurisdictional error. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 2 May 2019