BBQ16 v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBQ16 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2656

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – section 438 certificate – application of Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.438.

Cases cited:

Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3

Applicant:

BBQ16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 948 of 2016

Judgment of:

Judge Mercuri

Hearing date:

28 June 2018 and 16 September 2019

Date of Last Submission:

16 September 2019

Delivered at:

Dandenong

Delivered on:

11 October 2019

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the respondents:

Mr Yuile

Solicitors for the respondents:

Australian Government Solicitor

ORDERS

The applicant’s application filed 9 May 2016 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 948 of 2016

BBQ16

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) affirming a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse the applicant a protection visa.
The matter first came before me on 28 June 2018. It was adjourned on that day, pending the hearing and determination by the High Court of Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 (“SZMTA”).
The High Court handed down its decision in SZMTA on 3 February 2019 and this matter was subsequently relisted before me on 16 September 2019.
The applicant appeared in person with the assistance of a Farsi interpreter. The applicant had a relatively good command of the English language and at times made submissions on his own behalf and at other times, utilised the services of the interpreter.
At the commencement of the hearing, the applicant confirmed that he had not filed any written submissions in support of his application, however, indicated that he had some material he wished to provide to the court, which is addressed in greater detail below.
The applicant’s application identifies eight grounds of review. However, those grounds are not particularised in any meaningful way.
The applicant was asked to explain to the court what he meant by each ground. His explanations, where given, are set out in detail below. However, the applicant indicated that he did not have anything he wished to add in relation to many of the grounds.
In addition to the eight grounds identified by the applicant, the Minister, as a model litigant, identified that a certificate had been issued under section 438 of the Migration Act 1958 (Cth) (“section 438”).[1] The certificate identified certain documents from the file of the Department of Immigration and Border Protection (“the Department”) which were not to be disclosed because they were said to contain information relating to “an internal working document and business affairs”.[2]
[1] Minister’s outline of submissions filed 14 June 2018 at pages 7 to 9.
[2] Court book page 329.
It was conceded by the Minister that the certificate was invalid. It was also accepted that the applicant did not have an opportunity to make submissions about the certificate.[3] The question therefore arose as to whether these factors gave rise to a jurisdictional error.
[3] Minister’s outline of submissions filed 14 June 2018, page 1 at paragraph [3].

Background

The applicant is an Iranian citizen. He arrived in Australia by boat on 2 June 2012 and made an application for a protection visa on 17 September 2012.
A delegate of the Minister refused the applicant’s application on 29 July 2013.[4] The applicant sought a review of the delegate’s decision by way of an application filed on 2 August 2013.[5]
[4] Court book pages 208 to 227.
[5] Court book pages 228 to 234
The applicant attended a hearing before the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 8 July 2015[6] at which time he was represented by a registered migration agent.
[6] Court book pages 299 to 301.
His representative also filed a detailed pre-hearing written submission in support of the applicant’s application to the tribunal on 21 March 2014.[7] That submission included a translation of a recording of a conversation between the applicant’s father and Mr Kashani. The translation of the recording was produced by a law clerk from the applicant’s representative’s office.[8]
[7] Court book pages 239 to 281.
[8] Court book pages 280 and 281.
After the tribunal hearing on 8 July 2015, the applicant’s representative requested a copy of all documents relating to the loss of his laptop. On 31 July 2015, the applicant’s representative advised the tribunal that the applicant had made a request under the Freedom of Information Act 1982 (Cth) (“FOI Act”) to enable them to properly respond to the tribunal’s concerns on behalf of the applicant. The applicant also sought further time to respond to allow him to obtain the documents sought under the FOI Act.[9]
[9] Court book pages 320 and 321.
The applicant’s representative made further submissions on behalf of the applicant in writing by letter dated 7 August 2015.[10] In this correspondence, the applicant maintained that he was still awaiting the production of further documentation by the Department and requested that a decision be deferred until such time as the documents were provided.
[10] Court book pages 326 to 328.
Although the court book does not disclose any response to this correspondence, it appears that the tribunal did not make a decision for some months.
On 23 February 2016, the tribunal wrote to the applicant in the following terms:
I am writing to advise that the Presiding Member will shortly be making a decision in the above matter. The Member notes that you have previously requested further time to provide documents but do not appear to have done so.
If you or the applicant, wish any other documents to be taken into account they should be received by no later than midday this Friday 26 February 2016. After considering anything submitted the Tribunal will make a decision after this time.[11]
[11] Court book pages 330 to 331.
The applicant’s representative made further written submissions by letter dated 26 February 2016.[12]
[12] Court book pages 332 to 335.
The tribunal affirmed the delegate’s decision on 7 April 2016.
The applicant filed his application for review on 9 May 2016.

The applicant’s claims

The applicant claimed to fear harm in Iran because of his political opinion or imputed political opinion.[13]
[13] Court book page 112.
The applicant claimed that after finishing university where he studied Metallurgy Engineering, he was employed as an IT supervisor with the government in Lali where his stepfather was the governor.[14]
[14] Court book page 112 at paragraph [4].
The applicant further claimed that he came to the attention of the authorities as a result of a video that he had made at an event for “Book Week”.[15] The applicant said that the video showed some of the officials kissing the hand of the representative of the supreme leader’s office. He explained that kissing the hand in that way was a practice in the Shah’s regime and one that was mocked by the current regime. The applicant claimed that the fact that the current regime was engaging in this practice demonstrated the hypocrisy of the current regime.[16]
[15] Court book page 113 at paragraph [8].
[16] Court book page 113 at paragraph [8].
The applicant claimed that he shared the video with friends and told them that he thought it revealed the hypocrisy of the current regime.[17]
[17] Court book page 113 at paragraph [9].
The applicant also stated that he made other videos which imputed him with a political opinion against the current regime and discussed them with friends.[18]
[18] Court book page 113 at paragraph [10].
The applicant claimed that his stepfather, who held an influential position, told him in mid-April 2012 that he was wanted for questioning by Herasat. He claimed that his stepfather told him it was possible that Etelaat would interview him and that he had come to the attention of the authorities as a result of the video he had made.[19] He said that after receiving this warning, he left as soon as he submitted a report that he was working on for fear of being killed, tortured or seriously harmed.[20]
[19] Court book pages 112 to 113 at paragraph [7].
[20] Court book page 113 at paragraph [10].
The applicant further claimed that:
a)when he was in Indonesia, he gave his laptop to someone from Iran who “appeared nice”;[21]
b)he gave it to this person because people smugglers said that he could not take it on the boat;
c)this person gave the laptop to his son in law who is working with Sepah and so consequently he is also “at risk from SEPAH”;[22] and
d)when the laptop was returned to his family, three security codes were gone which meant that Sepah was able to access all of his files.[23]
[21] Court book page 114 at paragraph [15].
[22] Court book page 114 at paragraph [15].
[23] Court book page 114 at paragraph [15].
The applicant claimed that he cannot return to Iran due to his imputed political opinion and he faces serious risk of harm if he were to return, including serious risk of being tortured, seriously harmed or killed by Herasat, or other departments operating at the request of Herasat.[24]
[24] Court book page 114 at paragraph [18].

The tribunal’s reasons

The tribunal discussed the applicant’s claims at paragraphs [12] to [30] of its reasons.[25]
[25] Court book pages 341 to 345.
Relevantly, the tribunal member stated that he had viewed the video that the applicant had made and noted that it did not show anyone kissing the hand of the Ayatollah.[26] The tribunal member put to the applicant its concerns about what the video actually showed and indicated that he may not believe that the Iranian authorities would be concerned about him having the video.[27]
[26] Court book page 344 at paragraph [23].
[27] Court book page 344 at paragraph [23].
The tribunal member also noted that there were numerous people in the audience also videoing what had occurred, including a television broadcaster. The applicant stated that the TV broadcast would not show this aspect of what occurred.[28]
[28] Court book page 342 at paragraph [14].
The tribunal member also raised the following matters with the applicant:
a)why he did not leave for India as soon as his stepfather told him in mid-April that Herasat were likely to interview him;[29]
b)what happened when he arrived in Indonesia and the circumstances surrounding him giving the laptop to Kashani;[30]
c)why the applicant did not delete the files from his laptop if they were as concerning as he said they were;[31]
d)apparent inconsistencies between the applicant’s claim that he gave the laptop to Kashani in Indonesia yet appeared to have told his case worker in the detention centre that he lost it;[32]
e)the translation of the recording which the applicant claimed was a conversation between the applicant’s father and Kashani, and the member’s concerns that the recording does not indicate that Kashani had given the laptop to Sepah;[33]
f)a number of other concerns that the tribunal member had about the applicant’s claim, including that he was not sure that anything which the applicant had presented indicated that he faced any risk on return to Iran, and therefore, that even if Sepah had accessed his laptop, that they would be concerned by anything there;[34]
g)concerns that the tribunal member had about what the applicant said the video showed and what it actually did show;[35]
h)concerns that, on the basis of the available country information, the tribunal member was not convinced that he would face a chance of harm as a result of being detained in Australia and returning as a failed asylum seeker;[36]
i)whether the applicant had done anything in Australia to express a political opinion;[37] and
j)concerns that the tribunal member had about the claim first made by the applicant in submissions dated 21 March 2014 that his stepfather was approached regarding an opinion that the applicant had expressed about Ahmadinejad and Moosavi whilst he was in charge of computers during the 2009 election.[38]
[29] Court book pages 342 and 343 at paragraph [18].
[30] Court book page 343 at paragraph [19].
[31] Court book page 343 at paragraph [19].
[32] Court book page 343 at paragraphs [19] and [20].
[33] Court book page 343 at paragraph [21].
[34] Court book page 344 at paragraph [22].
[35] Court book page 344 at paragraphs [23] and [24].
[36] Court book page 345 at paragraph [25].
[37] Court book page 345 at paragraph [27].
[38] Court book page 345 at paragraph [28].
The applicant was given an opportunity to respond to each of these matters during the hearing.
The tribunal accepted that the applicant had been employed as the IT supervisor in the governor’s office in the Lali township and, as part of his work, he filmed and took photographs of various events.[39]
[39] Court book page 346 at paragraph [32].
However, the tribunal member did not accept much else about the applicant’s claims. In particular, the tribunal member:
a)had a fundamental concern as to whether the applicant faced any risk upon return to Iran, based on the evidence presented by the applicant;[40]
[40] Court book page 346 at paragraph [35].
b)viewed the video which the applicant claimed showed someone kissing the hand of the representative of the supreme leader and found that it in fact did not “demonstrate what he said it did in any way, the most that I can discern is an individual inclining his head slightly”;[41]
[41] Court book page 346 at paragraph [36].
c)concluded that:
when confronted with the fact that the video did not show what he had claimed it did he attempted to shift his claims and evidence to address this, and attempted to shift the focus of his claims from what, demonstrably in his statutory declaration appears to be the central issue being the filming and then sharing and commentary on the video, to his more general claimed comments and observations about the regime;[42]
[42] Court book page 346 at paragraph [36].
d)considered the photographs provided by the applicant but did not think that they were controversial in any respect;[43]
[43] Court book page 346 at paragraph [36].
e)considered the new claim regarding his role in the 2009 election, but did not accept this claim because he had raised it so late in the process even though he had had various opportunities to raise it earlier, including at the protection visa interview;[44]
[44] Court book pages 346 and 347 at paragraph [36].
f)accepted that the applicant attended and filmed the book event which the tribunal member described as “an entirely unremarkable ceremony”;[45]
[45] Court book page 347 at paragraph [36].
g)did not accept that the book event or discussions at a funeral or photographs taken by the applicant could be considered to be controversial;[46]
[46] Court book page 347 at paragraph [36].
h)gave weight to the applicant’s evidence that he had not been involved in political activity in Australia;[47]
i)concluded that he did not accept that the applicant:
shared videos, photographs, or any other materials with colleagues or friends or anyone else, and made comments disparaging or criticising the regime or particular people and I find that he has completely invented the claim that he criticised Ahmadinejad in the debate in front of a cleric or anyone else and then his step-father was warned about the applicant being a pro-Moosavi supporter;[48]
j)expressed significant concerns about the applicant’s story in relation to the laptop, in particular in relation to giving his laptop to Kashani, who he barely knew, and queried whether he had invented the claim about Kashani;[49]
k)was “willing to give him the benefit of the doubt and accept that he gave his laptop to someone called Kashani in Indonesia”;[50]
l)did not accept that there was, or was likely to be, any material on the applicant’s laptop which “would be considered to be controversial or would lead to the applicant being imputed with a political opinion of any kind”;[51]
m)did not accept that there was any evidence that the laptop made its way into the hands of Sepah or any other authority in Iran;[52]
n)did not accept that Sepah had ‘”… become aware of, copied or had access to the applicant’s laptop”; and
o)went on to say:
Even in the remote and far-fetched situation in which they did, as I have found above, there is no evidence that the information on the laptop is anything but mundane and uncontroversial, as I have found the selection of materials he has provided are.[53]
[47] Court book page 347 at paragraph [37].
[48] Court book page 347 at paragraph [38].
[49] Court book page 347 at paragraph [40].
[50] Court book page 347 at paragraph [40].
[51] Court book page 347 at paragraph [40].
[52] Court book page 347 at paragraph [40].
[53] Court book page 348 at paragraph [40].
On the basis of these findings, the tribunal member concluded that the applicant would not be at risk of harm because of any actual or imputed political profile. The tribunal member also did not accept that the applicant would be at real risk of harm upon returning to Iran as a failed asylum seeker.[54]
[54] Court book page 348.
Having regard to his factual findings discussed above, the tribunal member concluded that there is no real risk that the applicant would suffer significant harm for the purposes of complementary protection.[55]
[55] Court book page 348.

Grounds of review

The applicant raised the following eight grounds of review:
The decision by the second respondent involved an error of law, whether or not the error appears on the record of the decision.
…
The second respondent either misinterpreted, misunderstood or misapplied the applicable law, or has otherwise failed to ask itself the correct question.
…
There was no evidence or other material to justify the making of the decision by the second respondent or the second respondent relied on evidence which did not exist.
…
The second respondent failed to take into account a relevant consideration in the exercise of power.
…
The second respondent took into account an irrelevant consideration in the exercise of power.
…
The second respondent exercised a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
…
The second respondent exercise power in a manner that is so unreasonable that no reasonable person could have so exercised the power.
…
The second respondent exercised power in such a way that the result of the exercise of power is uncertain.[56]
[56] Applicant’s application filed 9 May 2016.
As noted by the Minister, no particulars have been provided in respect of any of these grounds.
The Minister’s written submissions largely took issue with the fact that the grounds of review were not particularised, and argued that as such, without further submissions or further explanation they are essentially meaningless. Moreover, it was submitted that even at their highest, the grounds of review did not disclose any jurisdictional error.

At the hearing, the applicant was invited to provide further particulars or to expand upon these grounds of review.
The applicant indicated that he had nothing to add in relation to grounds 3, 5, 6 and 7. In the absence of proper particulars, these grounds do not disclose any identifiable jurisdictional error and are not made out. At best, they invite impermissible merits review.
I will deal with the remaining grounds 1, 2, 4 and 8 in turn.

Ground one

When asked to explain what alleged error of law the applicant was referring to in ground one, the applicant sought to hand up a transcript of the conversation his father had with Mr Koshani.[57]
[57] Exhibit A.
There was no objection taken to this course of action because, although the tribunal expressed concerns about the applicant’s evidence in relation to this issue, it ultimately accepted that the applicant had given the laptop to Mr Koshani.[58]
[58] Transcript page 8 at lines 3 to 26.
In his statutory declaration made on 10 September 2012, the applicant claimed:
In mid April my step father told me that he had heard, by virtue of his government contacts, that HERASAT which is a powerful department in charge of intelligence and surveillance wanted me for questioning in relation to a video I made.[59]
[59] Court book pages 112 and 113 at paragraph [7].
He then set out the nature of video recording,[60] the fact that he had shared the video with friends and commented on the hypocrisy in the video,[61] and then stated that he made many videos that impute him with a political opinion.[62] He then stated that as soon as he heard this he left immediately.[63]
[60] Court book page 113 at paragraph [8].
[61] Court book page 113 at paragraph [9].
[62] Court book page 113 at paragraph [10].
[63] Court book page 113 at paragraph [12].
As stated above, the applicant’s representative filed a written submission with the tribunal on his behalf setting out his claims together with supporting documentation. This included reference to an audio file which the applicant had provided during his protection visa interview. In particular, the letter said:
[the applicant] also presented an audio file during his protection visa interview. It was a recording his father made between his father and Mr Kashani (please find attached a translated copy of this recording) (emphasis added).[64]
[64] Court book page 240.
At paragraph [36] of the applicant’s written submission to the tribunal, the applicant’s representative further states:
The delegate did not place any weight on the audio recording provided by [the applicant] for the reasons mentioned above (7b). [The applicant] claims it is an authentic record of the conversation had between his father and Mr Kashani. [the applicant] is also willing to give the tribunal his father’s phone number, so that he can be contacted and the authenticity of the recording can be verified.[65]
[65] Court book page 247 at paragraph [36].
Attached to the written submission was a statutory declaration from a law clerk employed with the applicant’s representative and a translation of the telephone call between the applicant’s father and Kashani.[66]
[66] Court book pages 279 to 281.
The applicant submitted that this recording was not a complete and accurate translation.[67]
[67] Transcript page 6 at lines 9 to 17.
In particular, the applicant submitted that the person who made the first translation missed the most important aspect of this conversation. The applicant mentioned the fact that the original translation was not accurate at the time but the tribunal member did not believe him.[68]
[68] Transcript page 6 at lines 9 to 17.
The tribunal discussed the recording and the translation at paragraph [21] of the tribunal’s decision record.[69] It is evident from that paragraph that the tribunal identified an inconsistency between what the applicant had claimed and what appeared in the translation provided by the applicant’s representative.
[69] Court book page 343 at paragraph [21].
The applicant sought to tender a word for word translation of this conversation.[70]
[70] Exhibit A.
Leaving aside whether the translation provided by the applicant’s representative was accurate and complete, it is evident from the tribunal’s reasons that it ultimately accepted that the applicant did in fact give his laptop to Kashani, notwithstanding its reservations about those claims.[71]
[71] Court book page 347.
Similarly, the applicant alleged that the inaccuracy of the translation did not make it clear that Kashani had given the laptop to someone who in turn provided it to the security services in Iran.[72]
[72] Transcript page 6 at lines 9 to 17.
In this regard, although the tribunal indicated that it was not satisfied on the evidence before it that the laptop found its way to Sepah or any other authority in Iran, it went on to say that even if the applicant’s claims were accepted and the laptop did make its way into the hands of Sepah or some other security organisation within Iran, “there is no evidence that the information on the laptop is anything but mundane and uncontroversial, as I have found the selection of materials he has provided are.”[73]
[73] Court book page 348 at paragraph [40].
In the course of the hearing before me, the applicant seemed to suggest that as a consequence of his employment, all information contained on the computer system he worked with was sensitive information not to be distributed to anyone. Therefore, even if the tribunal’s view was correct and the information on the laptop was not inherently significant, the fact that he had disclosed it would still be a security breach.[74]
[74] Transcript page 7 at lines 1 to 6.
It was submitted for the Minister that this was not a claim which has previously been raised and not a matter which was properly raised in the context of an application for judicial review.[75]
[75] Transcript page 23 at lines 26 to 45.
In any event, even if it were, the tribunal made a factual finding which was reasonably open to it that the nature of the information on the applicant’s laptop was not of the kind which would expose the applicant to a risk of harm if he were to return to Iran. This finding was reasonably open on the evidence.
The applicant’s complaint about this aspect of the tribunal’s decision in essence invites the court to engage in impermissible merits review.
For each of these reasons, ground one has not been made out.

Ground two

In relation to ground two, the applicant said that the tribunal referred to his lack of political activities in Australia as a basis for its findings. He said that when he arrived in Australia he did not have support and it was difficult for him to understand what political issues were around. He said that he was active on Facebook but because he did not know many people, he was unable to start on his political activities. The applicant claimed that the tribunal’s findings in this regard were unreasonable.[76]
[76] Transcript page 10 at lines 30 to 36.
The tribunal dealt with this issue when it said:
I note and give considerable weight to the fact that the applicant conceded he had not been politically active or expressed his claimed opinion against the Iranian regime in Australia.[77]
[77] Court book page 347 at paragraph [37].
Importantly, it went on to say:
Whilst not determinative, I find that such lack of engagement, when combined with my other concerns, indicates that the applicant is not, and was not, politically engaged or desirous of expressing a political opinion in Iran, nor that he would do so in future (emphasis added).[78]
[78] Court book page 347.
This finding of fact was reasonably open to the tribunal on the basis of the evidence before it.
It does not support the applicant’s submission that the tribunal misinterpreted, misunderstood or misapplied the applicable law, otherwise failed to ask itself the correct question or that it was otherwise legally unreasonable. Rather, this ground is seeking impermissible merits review.
For these reasons, ground two is not made out.

Ground four

By ground four, the applicant claims that the tribunal failed to take into account a relevant consideration.
When asked to explain what he meant by this ground, the applicant said the tribunal did not consider the video clip of the kissing of the hand incident. When asked whether his submission was that the tribunal did not consider it or whether it was that the tribunal did not believe him, the applicant said it was the latter.[79]
[79] Transcript page 12 at line 32.
The tribunal dealt with the issue of the video clip at paragraphs [13] to [15] of the decision record. Relevantly, the tribunal member noted that:
I noted … that I had viewed the video that this still was taken from and I did not see anyone kissing his hand … I noted that I was concerned that the video he had provided as proof of this happening did not appear to show what he said it does, and I may not believe that the Iranian authorities be concerned about him having it.[80]
[80] Court book page 341 at paragraph [14].
The tribunal member discussed who the applicant discussed the film with.[81]
[81] Court book page 342 at paragraph [15].
The tribunal went on to consider the claims made by the applicant about the video.[82]
[82] Court book page 346 at paragraph [36].
It is evident from a fair reading of the tribunal’s reasons that the tribunal member not only viewed the video, but actively considered it as well as the applicant’s claims in relation to the video.[83]
[83] Court book page 346.
For these reasons, ground four is not made out.

Ground eight

By ground eight, the applicant asserted that the tribunal exercised its power in such a way that the result of the exercise is uncertain.
When asked to explain what he meant by this, the applicant said that he reported the laptop issue to Serco, the security company at the detention centre, but they did not make a note of his report on his file.[84]
[84] Transcript page 14 at lines 14 to 16.
In addition, the applicant said that during the hearing, the tribunal put the applicant under a lot of pressure and only gave him 15 minutes to respond.[85]
[85] Transcript page 14 at lines 29 to 46.
In summary, the applicant explained the tribunal’s error as follows:
…they did not accept my laptop issue, and they did not accept the fact that my laptop was actually handed to the intelligence service of the Revolutionary Guard for the reason that the particular issue was not interpreted by the interpreter properly…[86]
[86] Transcript page 15 at lines 5 to 8.
The applicant also complained that the tribunal relied upon the initial interpretation of the audio recording in concluding that there was no evidence in that translation of Kashani providing the laptop to the Sepah.[87]
[87] Transcript page 15 at line 17.
In addition, the applicant said that the tribunal did not believe that his stepfather was asked about the video clip he recorded of the kissing of the hand incident.[88]
[88] Transcript page 15 at lines 21 to 27.
For the reasons set out above, the tribunal did ultimately accept that the applicant had given his laptop to Kashani, although it did not accept that the laptop had made its way into the hands of Sepah or any other government agency in Iran. In any case, the tribunal concluded that even if it had, this would not lead to the applicant being at risk, given its conclusions about the nature of the information on the applicant’s laptop.[89]
[89] Court book pages 347 and 348.
For each of these reasons, ground eight is not made out.

Section 438 and SZMTA

As stated, the Minister raised the section 438 certificate as an issue in its capacity as a model litigant.[90] It was submitted by the Minister that the reference to internal working documents in the certificate was invalid and that the applicant was not provided with the opportunity to make submissions about the certificate.[91]
[90] Minister’s outline of submissions filed 14 June 2018, page 7 at paragraph [31].
[91] Minister’s outline of submissions filed 14 June 2018, page 7 at paragraph [32].
The Minister relied on the affidavit of Ms Ngo sworn 14 June 2018 which annexed the documents referred to in the section 438 certificate at Exhibit MN-1 (“MN-1”). It was submitted by the Minister that:
a)the applicant received a majority of those documents on 10 August 2015 as a result of his freedom of information request and had the documents for a “significant time” prior to the tribunal handing down its decision on 7 April 2016;[92] and
b)the applicant “did not lose any chance at a successful outcome” by not receiving the remaining documents.[93]
[92] Minister’s outline of submissions filed 14 June 2018, pages 7 and 8 at paragraphs [34] and [35].
[93] Minister’s outline of submissions filed 14 June 2018, page 9 at paragraph [41].
In SZMTA, the High Court dealt with three appeals concerning the effect of a review by the tribunal of a notification to the tribunal under section 438.
Section 438 of the Migration Act 1958 (Cth) relevantly provides:
1)This section applies to a document or information if:
(a)     the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b)     the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
2)If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a)     must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b)     may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
3)If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a)     may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b)     may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
4)If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.
The statutory context and effect of section 438 was summarised by Bell, Gageler and Keane JJ in SZMTA at [15] – [26]. I will not repeat that analysis here.
The High Court confirmed that the issuing of a notice under section 438 triggers an obligation of procedural fairness on the part of the tribunal to disclose the fact of notification to the applicant for review. The reason for this is that:
procedural fairness ordinarily requires that an applicant for an exercise of administrative power have an opportunity to tailor the presentation of evidence and the making of submissions to the procedure to be adopted by the decision-maker.[94]
[94] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [29].
However, Bell, Gageler and Keane JJ went on to say:
The Secretary’s provision of an incorrect, and therefore invalid, notification that s 438 applies in relation to a document or information amounts, without more, to an unauthorised act in breach of a limitation within the statutory procedures which condition the performance of the overarching duty of the Tribunal to conduct a review. Applying the principle of construction recently explaining in Hossain v Minister for Immigration and Border Protection, however, the Act is not to be interpreted to deny legal force to a decision made on a review in the conduct of which there has been a breach of that limitation unless that breach is material.[95]
[95] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [39].
Moreover:
where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.[96]
[96] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [46].
Bell, Gageler and Keane JJ went on to say that the provision of a certificate without notifying the applicant is itself a breach of the procedural fairness rules which would otherwise apply, because it deprives the applicant of the right to make submissions in respect of the tribunal’s discretion to release the documents to the applicant.[97]
[97] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [31], [38].
As noted above, in the case before this court, it is accepted that the certificate which was issued pursuant to section 438 was invalid.
Bell, Gageler and Keane JJ added that a breach of procedural fairness by virtue of the issuing of an invalid certificate is material “only if compliance could have realistically resulted in a different decision”.[98] The onus of establishing this is on the applicant.
[98] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [45].
Bell, Gageler and Keane JJ further said:
…the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account.[99]
[99] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [48].
Therefore, the question for this court is whether any of the documents at MN-1 could have resulted in a different outcome if given to the applicant so that the applicant had the opportunity to make submissions in respect of them.
It was submitted on behalf of the Minister that the answer to this question is ‘no’.
The applicant made a freedom of information request and was provided with many, albeit not all of the documents the subject of the certificate. Therefore, the applicant could have made submissions in respect of those documents within his possession.
The only documents that were not provided under the freedom of information application were certain internal department emails, which the Minister submitted would not have been of any assistance to the applicant.
Leaving aside the question of whether the applicant had access to some of the documents under the FOI Act, I have had regard to the nature and content of the documents in MN-1 and am satisfied that each of the documents would not have made a difference to the outcome in this case.[100]
[100] Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3 at [70]-[71].
The first document is a cover sheet and a checklist from an interview, which are administrative documents of no substance to the application.
Internal emails at folios 150 to 157 largely relate to the applicant’s laptop including inquiries and searches he made for the laptop whilst the applicant was in detention.
As noted above, the issue of the applicant’s laptop and whether his story about it being stolen was a matter before the tribunal. In his submissions, the applicant suggested that these emails said that he lost the laptop, whereas he says he told his case manager that it had been stolen. Despite there being some confusion about whether he had lost it or whether it had been taken, ultimately, as stated above, the tribunal accepted that the applicant gave it to Kashani in Indonesia.
The document at folios 161 to 180 shows a copy of the applicant’s Irregular Maritime Arrival Entry Interview. This records basic details the applicant gave on his arrival at Christmas Island, his claims for protection in summary form and how he arrived in Australia.

There is nothing new in this document; rather, it contains a reiteration of his claim elsewhere determined. That claim failed because the tribunal did not accept that the content of the videos and photos were likely to lead to a risk of harm. In any case, these documents are consistent with other aspects of the applicant’s claim and would not realistically have resulted in a different outcome.
The document at folios 192 to 197 entitled ‘Case Assessment Interview’ is a further record of an interview with the applicant dated 19 June 2012. Again, this document contains some basic information about the applicant but does not contain any additional information which could realistically have resulted in a different outcome.
The final document at folio 227 is a disclosure decision checklist, which is an internal department document and does not contain any information which could realistically have impacted upon the decision made.
Having considered the documents which were the subject of the invalid section 438 certificate, I am satisfied that the applicant did not lose the opportunity for a successful outcome by not having these documents.
For each of these reasons, the invalidity of the section 438 notice, whilst a breach of procedural fairness, does not rise to the level of jurisdictional error as compliance would not have realistically resulted in a different decision.

Summary and conclusion

As noted by counsel for the Minister, putting the applicant’s case at its highest, the applicant claimed that:
a)he made a video in Iran with representatives of the Supreme Leader;
b)this video highlighted the hypocrisy of the current regime; and
c)this video, together with his discussions, established that he had a political profile, which put him at risk.[101]
[101] Transcript page 16 at lines 1 to 5.
The tribunal accepted most of the facts as claimed by the applicant. It accepted that evidence had been provided to support the applicant’s claims that he had been employed by the governor’s office and had filmed and photographed certain things as part of his work.[102]
[102] Court book page 346.
However, the tribunal’s reasons highlighted concerns about the applicant’s “attempts to tailor and shift his evidence”.[103] For instance, the tribunal viewed the video and other files provided by the applicant but did not consider there was anything in the footage which was likely to lead to persecution in Iran.[104] When this was put to the applicant, he shifted the focus from the video, which was claimed to be of central significance in his statutory declaration, to the comments and observations that he had made about the regime.[105]
[103] Court book page 346 at paragraph [36].
[104] Court book page 346 at paragraph [36].
[105] Court book page 346 at paragraph [36].
Despite these concerns, the tribunal accepted that the applicant gave the laptop to someone in Indonesia. However, as mentioned, it ultimately concluded that the material on the laptop was uncontroversial and was not something which would lead to harm in any case.[106]
[106] Court book page 347 at paragraph [40].
Additionally, the tribunal member did not accept the applicant’s claims regarding an incident at a political debate in 2009. The tribunal considered it unlikely that this incident would not have been raised at an earlier stage in the proceedings, notwithstanding the traumatic circumstances the applicant allegedly experienced.[107]
[107] Court book pages 346 to 347 at paragraph [36].
Although the tribunal’s reasons state that the applicant’s lack of political engagement in Australia was not determinative, when considered in conjunction with other factors, including the tribunal’s reservations about the inconsistencies in the applicant’s evidence, it concluded that the applicant was not politically engaged against the Iranian regime.[108]
[108] Court book page 347 at paragraph [37].
Ultimately, the applicant’s complaint was that the tribunal did not accept the factual matters that underpinned his claims as giving a proper basis for his claim for protection. By his application, and having considered the applicant’s further oral submissions, I find that the applicant is effectively seeking impermissible merits review. The role of this court is not to remake a finding of fact which was open to the Tribunal to be made based on the evidence before it.
Finally, the invalidity of the section 438 notice did not give rise to jurisdictional error as compliance would not have realistically resulted in a different decision.
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 11 October 2019

[2019] FCCA 2656

11 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Costs

Jurisdiction