BSF16 v Minister for Immigration

[2019] FCCA 3194

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSF16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3194

Catchwords:
MIGRATION – Administrative Appeals Tribunal – decision to cancel the applicant’s Subclass 866 (Protection) visa – whether the Tribunal failed to notify the applicant of the s 438 certificate issued on 24 August 2015 – whether the non-disclosure of the certificate or the documents the subject of the certificate gives rise to practical injustice – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 101, 103, 109, 424, 438, 476

Applicant: BSF16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1764 of 2016

Judgment of: Judge Street

Hearing date: 11 June 2019 & 25 October 2019

Date of Last Submission: 25 October 2019

Delivered at: Sydney

Delivered on: 8 November 2019

REPRESENTATION

Counsel for the Applicant: Mr J Williams (11 June 2019)
Mr A Anforth (25 October 2019)

Solicitors for the Applicant: Mr J Williams, Direct Access (11 June 2019)
Capital Lawyers (25 October 2019)

Solicitors for the Respondents: Ms D Watson
Australian Government Solicitor

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The amended application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1764 of 2016

BSF16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 June 2016 affirming a decision of the delegate to cancel the applicant’s Subclass 866 (Protection) visa.

2. The applicant is a citizen of Iran and on 15 October 2013, the applicant was issued with a ‘Notice of intention to consider cancellation under section 109 of the Migration Act 1958’ (“the notice”). The notice referred to the applicant being a person who made an application for a protection visa supported by two written statements dated 31 January 2011 and 3 March 2011, together with two subpoenas requiring the applicant attend a Court and a record of the applicant being remanded for a period of imprisonment called “The verdict”. The notice recorded that, in Part B of the applicant’s application for protection, the applicant gave names of several family members.

3. The notice referred to the applicant alleging he had hired a lawyer and on 25 June 2009, attended Court in relation to ‘committing crime against Iran internal security and giving propagandas against the Government’. The notice noted that, on 24 September 2009, the applicant attended Court in relation to ‘committing crime against the Iran internal security and giving propagandas against the Government’. The notice referred to the applicant arriving in Australia on 16 November 2010 and that, on 23 January 2011 and whilst the applicant was in Australia, an appeal Court sentenced the applicant to one year’s imprisonment for ‘propaganda against Iran’, five years’ imprisonment ‘due to co-operation with Iran’s enemies’ and ‘10 years prohibition on social activities’. The applicant alleged that his lawyer informed him of his sentence.

4. The applicant alleged in the protection application that the allegations were untrue, that he had a fear of being imprisoned, that he had a verdict in respect of which the sentence amounted to six years imprisonment and that he would be arrested and sent to jail if he were returned to Iran.

5. On 14 April 2011, the notice noted the applicant was granted a Protection (Class XA) visa. The notice recorded that the applicant then returned to Iran. The notice recorded that, on 3 June 2009, the applicant was issued with an Iranian passport and that the applicant used that passport to leave Iran and arrive in Australia on 16 November 2010 and that it was due to expire on 3 June 2014. The notice recorded that Departmental records show that the applicant left Australia on 29 May 2011 using an Australian Titre de Voyage, which he was issued with by Australia, and returned to Australia using that document on 9 July 2011.

6. The notice identified that records provided to the Department show that on 30 May 2011, the applicant flew from Dubai to Tehran on Emirates Airlines flight EK971 and that on 8 July 2011, the applicant flew from Tehran to Dubai on flight EK974. The notice identified, that based on this information, the applicant arrived in Iran on 30 May 2011, remained there for about five weeks and then left Iran through the airport on 8 July 2011. The notice recorded that, when the applicant returned to Australia on 9 July 2013, the applicant completed an incoming passenger card asserting that he spent most of his time in the United Arab Emirates.  

7. The notice referred to the applicant’s claims in his application for protection as to his fear of imprisonment. The notice referred to having information provided by the Australian embassy in Tehran that an Iranian citizen entering on a Titre de Voyage needed a visa upon arrival, would be questioned about why they are not using an Iranian passport and that the person would be unable to leave Iran without obtaining an Iranian passport. The notice recorded the sophistication of Iranian airport operations with a connection existing between airport systems and police systems.

8. The notice noted, that about six weeks after getting a protection visa, the applicant returned to Iran and flew into an international airport. The notice referred to uncertainty as to whether the applicant used his Titre de Voyage or his Iranian passport to enter Iran. The notice recorded that it was difficult to understand why the applicant returned to Iran and presented himself to airport authorities if the applicant feared being arrested immediately upon arrival and then being imprisoned for six years.

9. The notice noted that, after spending five weeks in Iran, the applicant left Iran from an international airport. The notice noted that the applicant would have to identify himself to the authorities, again exposing himself to arrest and imprisonment. The notice referred to the applicant as having twice presented himself to the Iranian authorities and not being arrested, indicating that the applicant is not of interest to the authorities.

10. The notice referred to the applicant’s arrival in Australia, the completed incoming passenger card and the incorrect information provided by the applicant as to spending most of his time in the United Arab Emirates when he spent his time in Iran.

11. The notice expressly referred to the applicant providing in Farsi and an English translation of a document called “The verdict” in support of the application for a protection visa. The notice noted that the document in Farsi was purportedly issued by the ‘Esfahan appeal court-sixth division’. The notice recorded that, in September 2013, these documents were sent to the Australian Embassy in Tehran for checking and expressly noted that the Iranian authorities were not contacted.

12. The notice recorded that a departmental integrity officer in Tehran wrote:

    I examined the details of the “verdict” issued by the Branch # 6 of Esfahan Court of Appeal to find that the document bears neither the signature nor the stamp of the relevant branch. It is practiced that such official documents should at least bear the stamp of the issuing authority… The name of the “Appellant” acting on behalf of ‘the applicant’ has been given on the “Verdict” to be a certain lawyer by the name Mr A. I was able to locate the lawyer on his cell phone number which I could obtain from Esfahan bar of lawyers. The lawyer, Mr A stated that he had never heard of a client by the name of the applicant, and that he (the lawyer) would not accept the files from the clients who have been accused of conducts against Iran’s internal security.

13. The notice then recorded that it was difficult to understand why the document in Farsi translated as “The verdict” does not show the signature or stamp of the issuing authority and reads ‘you were represented by a lawyer who does not recognise your name and does not take on cases involving Iran’s internal security’. The notice expressly recorded that these are things that indicate the document is not genuine.

14. The notice referred to the fact that the applicant, despite arriving and departing Iran through an international airport and despite being in Iran for about five weeks, was not arrested, indicating that the authorities had no interest in him which is consistent with the “The verdict” document being a fake and there being no conviction in existence upon which the authorities might have arrested the applicant. The notice records that the applicant’s actions had not been that of a person who feared contact with the Iranian authorities in Australia or Iran and are indications that “The verdict” document, upon which the applicant’s protection claims are based, is not genuine.

15. The notice expressly recorded the applicant returning to Australia and that the applicant did not disclose the fact that he had stayed in Iran for five weeks. The notice recorded, that based on the above information, the Department was satisfied that the applicant does not fear imprisonment if returned to Iran.

16. The notice then referred to “The verdict” being a bogus document, identified the requirements at s 97 of the Act and repeated the reference to the document having been provided in Farsi, translated as “The verdict” and purportedly issued by the ‘Esfahan appeal court-sixth division’.

17. The notice expressly referred to the document not showing the signature or stamp of the issuing authority and reads that the applicant was represented by a lawyer who does not recognise the applicant’s name and does not take cases involving Iran’s internal security. The notice referred to the applicant twice presenting himself to the authorities at the airport and not being arrested being consistent with there being no conviction in existence upon which the authorities might have an interest in the applicant. The notice identified that these things indicate that the document is not genuine and that it was not issued by the ‘Esfahan appeal court-sixth division’.

18. The notice recorded a belief that the document in Farsi translated as “The verdict” is counterfeit and has been created to be passed off as a genuine document. The notice recorded that the Department was satisfied that the document in Farsi translated as “The verdict” is a bogus document of the type falling within s 97(b) of the Act.

19. The letter identified, based on the information currently before the author of the notice, that the author was satisfied that there has been a non-compliance with s 103 of the Act and that there had been a non-compliance with s 101(b) of the Act in relation to the applicant’s reference in his application form to fearing imprisonment and for the reasons summarised in the notice that the applicant did not fear imprisonment if returned to Iran, that the answer given in the visa application to question 43 was incorrect and that the applicant failed to comply with s 101(b) of the Act.

20. The notice identified that the cancellation of the applicant’s visa is a two-step process, that the delegate will firstly decide whether the applicant complied with s 101 of the Act and that the applicant’s response will be taken into account. The noticed identified that the delegate will then decide that, if the applicant complied with s 101 of the Act, the applicant’s visa will not be cancelled but, if the delegate decides that the applicant did not comply with s 101 of the Act, a decision will then be made whether to cancel the applicant’s visa.

21. On 31 July 2015, the delegate found that the document in Farsi translated as “The verdict” is counterfeit and that it has been created to represent a genuine document or it is another genuine document that has been altered in some way so as to look to be a genuine Court document. The delegate found it is a bogus document within the meaning of the Act.

22. The delegate found that the applicant had not complied with s 103 of the Act and did not comply with s 101(b) of Subdivision C of the Act. The delegate concluded that there had been non-compliance by the applicant in the way described in the notice. The delegate exercised the discretion under s 109 of the Act to cancel the applicant’s visa.

23. The applicant applied for review of the delegate’s decision on 16 August 2015. By letter dated 30 November 2015, the applicant was invited to and attended a hearing on 19 January 2016 at which the applicant did not provide detailed evidence and submissions due to a request of his then migration agent. By letter dated 2 February 2016, the applicant was then invited to attend a further hearing to take place on 4 March 2016. The applicant appeared on that date to give evidence and present arguments. By letter dated 31 March 2016, the applicant was invited to a further hearing that was held on 20 May 2016 to give evidence and present arguments.

24. The Court is satisfied that the applicant had a real and meaningful hearing before the Tribunal. The Court should note that the transcripts have been tendered and that the conduct of the migration agent representative who was, in fact, a solicitor was less than satisfactory in his interactions with the Tribunal member who displayed a high level of professionalism, courtesy and fairness notwithstanding the unacceptable behaviour by the applicant’s representative. The Court is, however, satisfied that the applicant was given a real and meaningful opportunity to present evidence and submissions at the hearing by the Tribunal.

25. The Tribunal in its reasons identified the background to the applicant’s obtaining of the protection visa, return to Iran and the delegate’s decision on the issue of the notice of intention to cancel the applicant’s visa. The Tribunal summarised what occurred at the hearings and set out the background in detail. The Tribunal member recorded raising with the applicant his return to Iran, casting doubt on whether the Court document titled “The verdict” was genuine and the steps taken by the applicant to conceal from the Department that he had in fact travelled to Iran.

26. The Tribunal member concluded that the applicant’s decision to return to Iran demonstrates that the applicant did not fear being imprisoned and that the Court document titled “The verdict”, which the applicant produced indicating that he had been sentenced to imprisonment, is not a genuine document. The Tribunal found that the applicant breached s 101(b) of the Act by claiming in his application for protection that he feared imprisonment if he returns to Iran, which was incorrect, and that the applicant breached s 103 of the Act by producing a bogus document, namely the Court document titled “The verdict” dated 23 January 2011. The Tribunal found that there was non-compliance by the applicant with ss 101(b) and 103 of the Act in the way described in the s 107 notice.

27. The Tribunal turned to the issue of whether the applicant’s visa should be cancelled, concluded that the visa should be cancelled and affirmed the decision under review.

Before this Court on 11 June 2019

1. These proceedings were commenced on 8 July 2016. It was not until 23 April 2019 that the proceedings were the subject of orders by a Judge of the Court, transferring the proceedings to Sydney. On 9 May 2019, this Court made orders to facilitate a hearing on 6 June 2019.

2. Prior to the hearing on 6 June 2019, communication was received indicating a difficulty by counsel in attending due to illness and the matter was refixed for hearing on 11 June 2019, including a direction granting leave to the applicant to file an application in a case with a proposed amended application, affidavit evidence and submissions by 7 June 2019. It was not until 10 June 2019 that an amended application was filed, together with submissions. At the hearing that commenced on 11 June 2019, this Court granted leave to the applicant to rely upon the amended application which relevantly raises the following ground:

   Ground 1: The non-disclosure of information under section 438 of the Migration Act 1958 (Cth)

   1. The Tribunal failed to notify the applicant of (a) the first certificate issued on 24 August 2015 pursuant to section 438(2)(a) of the Migration Act 1958 (Cth), with regard to information and documents at folios 57-68, 78-87, 90-91, 116-119, 156-158 and 222-232 of the Department of Immigration and Border Protection (Department) file number BCC2013/203534 (2013 file); and the Tribunal failed to notify the applicant of (b) the second certificate issued on 4 November 2015 with regard to folios 22-3, 84-5, 104, 107-125 and 160-164 of the Department file number CLF2011/18815 (2011 file). The fact of a notification to the Tribunal that section 438 of the Migration At 1958 (Cth) applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. The Tribunal failed to do so. There was a breach by the Tribunal of that obligation resulting in jurisdictional error, as the breach was material, in the sense that the breach deprived the applicant of the possibility of a successful outcome. At [39] the Tribunal found that the applicant’s “decision to return to Iran in this way logically demonstrates that he did not in fact fear being imprisoned and that it also demonstrates that the court verdict which he produced indicating that he had been sentenced to imprisonment is not a genuine document.” The information and documents relating to the first section 438 certificate related to the authenticity of the Iranian Court orders and verdict. No formal verification of the Iranian Court orders and verdict were made by the Department to the Iranian Ministry of Foreign Affairs. The applicant was not privy to the information and documents before the Tribunal and was denied procedural fairness, giving rise to a practical injustice.

   Particulars

   The protection claims

   a) At [10], the applicant is aged in his early fifties. In his application for a protection visa, which he made in February 2011, he said that he had always lived in Esfahan and that he had been employed by the Department of Education as a teacher. In his application and in an accompanying statement he said that he had come to Australia to visit his brother in November 2010 but that he was now unable to return to Iran because he had been sentenced to six years' imprisonment and ten years' prohibition of social activities which meant that he would lose his job. He said that he had in fact been being persecuted for one and a half years due to taking part in protests after the presidential election in June 2009. He said that he had taken part in a peaceful protest and he had been arrested because he had taken a couple of photographs with his mobile phone.”

   b) At [11], the applicant “said that he had been accused of destabilizing the country and the government and of taking actions against internal security. He said that he had been detained for four days and that he had been tortured to make him confess that he was working for Iran's enemies but he had not confessed. He said that his family had got him out of detention by paying 80,000 dollars (corrected to 80 million tomans at the International Treaties Obligations Assessment interview) as bail or a bond. He said that he had defended himself in court and he had even hired a lawyer who had assured him that there was nothing to worry about. He produced copies of two subpoenas issued on 21 June 2009 and 16 September 2009 requiring him to attend court on 25 June 2009 and 24 September 2009 respectively on charges of committing a crime against Iranian internal security and giving propaganda against the government.”

   c) At [12] the applicant “said that after he had been released he had returned to work and he had even got married for the second time on 25 March 2010. He said that he had divorced his first wife due to some serious problems. He referred to the fact that he had first been granted a visa to visit Australia in June 2010 but that he had not been able to travel because his mother had been ill with cancer. He said that he had been granted a second visa in October 2010. As referred to above, he produced a copy of a court verdict dated 23 January 2011 sentencing him to one year's imprisonment for propaganda against Iran, five years' imprisonment for cooperating with Iran's enemies and ten years' prohibition of social activities. He said that as soon as he arrived in Iran he would be arrested and imprisoned for six years. He said that he was scared of his country's embassy in Australia because the Iranian Government would put pressure on his family to force him to return to Iran.”

   d) At [15], “[i]n a decision made on 14 April 2011 the delegate found that [the applicant] was owed protection obligations on the basis of his claims. He was granted a protection visa on the same day.”

   The applicant’s return to Iran after being granted a protection visa

   e) At [16], “[a]ccording to the decision under review (a copy of which Mr applicant provided to the Tribunal along with his application for review) on 29 May 2011 Mr applicant left Australia travelling on an Australian Titre de Voyage. He flew to Dubai and on 30 May 2011 he travelled on to Tehran on Emirates flight EK971. On 8 July 2011 he returned from Tehran to Dubai on Emirates flight EK97 4 and on 9 July 2011 he returned to Australia using his Titre de Voyage. As referred to above, in his incoming passenger card he said that he had spent most time in the United Arab Emirates.”

   The cancellation of the protection visa

   f) At [17], “[o]n 15 October 2013 the primary decision-maker sent [the applicant] the Notice of Intention to Consider Cancellation referred to above. In his response dated 29 October 2013 Mr applicant said that when he had gone to the Iranian Embassy to execute the power of attorney he had only shown them his birth certificate (SN), not his passport or any document showing his visa status in Australia.

   g) At [18], the applicant “denied that he had given an incorrect answer in the incoming passenger card and he denied having entered Iran or having been on flight EK971.” He said that he had had a ticket for this flight and he had been issued with a boarding pass because he had wanted to see his mother who had cancer but he said that he had been waiting on a call from his brother in Iran to see if he could make some arrangement whereby he could enter Iran without going through the passport checking authorities. He said that he had spent the entire five weeks at the house of friends in Dubai who would confirm this and that his mother had died after two weeks. With regard to the court verdict he said that it bore the stamp of the court in Esfahan and that the reason the lawyer who had represented him had denied this was that he was scared and intimidated by the Iranian intelligence ministry. He said that he had many witnesses to his attendance at court and also his conviction.”

   h) At [20], “[a[s referred to above, [the applicant] said that he had in fact travelled to Iran on 30 May 2011. He said that he had lied to the Department when he had said in his response dated 29 October 2013 that he had spent the entire five weeks in Dubai. He said that he had lied because he had been concerned for his life. He said that he had thought that maybe the Australian Government would inform the Iranian authorities that he was in Iran.”

   i) At [21], the applicant “said that he had returned to Iran because his mother had been very ill and close to dying. He said that before he had travelled to Iran his brother in Iran had bribed an officer at the airport to arrange that his passport would not be stamped when he entered Iran or when he left. He said that even now he was quite scared for his life and safety if he went back to Iran but in order to see his mother for the last time he had taken the risk.

   j) At [24], “[i]n a submission to the Department dated 27 March 2015 [the applicant’s then representatives confirmed that he conceded that he had travelled to Iran from 30 May 2011 to 8 July 2011. They said that his love of his mother and his desire to see her before she passed away had outweighed the risk of being imprisoned. They produced evidence that his mother had died on 16 June 2011. They submitted that he should be afforded the benefit of the doubt in respect of his ongoing fear and his motivation to see his dying mother.”

   The bogus document – the Iranian court verdict

   k) At [2], “on 24 July 2015 the primary decision-maker cancelled Mr applicant’s visa, finding that he had breached paragraph 101 (b) of the Migration Act by claiming in his application for a protection visa that he feared imprisonment if he returned to Iran which was incorrect and that he had breached section 103 of the Act by producing a bogus document, namely the court verdict dated 23 January 2011, and on 16 August 2015 [the applicant] applied to this Tribunal for review of that decision.

   The procedural fairness point

   l) At [29], the Tribunal “referred to the fact that [the applicant] had said that there was a court verdict against him and that he feared returning to Iran. [The applicant] said that this was true and that he still feared returning to Iran. He said that he had a copy of the court verdict with him at the hearing. I put to him that the fact that he had returned to Iran in 2011 cast doubt on whether the court verdict was genuine. Mr applicant said that he knew that the court verdict was genuine. I put to him again that he had returned to Iran at a time when he had said he feared being arrested on the basis of this court document. I put to him that the fact that he had returned to Iran suggested that he had not in fact feared being arrested and this suggested that the court verdict was not genuine.”

   The first section 438 certificate

   m) On 13 April 2018, Dale Watson, the solicitor employed by the Australian Government Solicitor and acting for the Minister affirmed an affidavit exhibiting two section 438 certificates and the documents subject to those certificates. The first section 438 certificate is exhibited and marked as “DW-4” and it is dated 24 August 2015. It pertains to folio 233 of the Department of Immigration and Border Protection (Department) file number BCC2013/203534 (2013 file). The documents referred to in the first section 438 certificate are exhibited and marked “DW-5”. They appear at folios 57-68, 78-87, 90-91, 116-119, 156-158 and 222-232 of the 2013 file.

   The “authenticity” of the Iranian Court orders and verdict

   n) The information gathered by the Department refers to the applicant’s travel from Australia to Iran on 29 May 2011 on an Australian Titre De Voyage (a Convention travel document) after being granted the protection visa on 14 April 2011. The information gathered by the Department also refers to documents provided by the applicant in Persian with English translations showing wet stamps for the Isfahan Department of Justice. The first is a subpoena issued 21/06/2009 to attend court 25/06/2009 for "Committing crime against the Iran internal security and giving propagandas against the Government". The second is a subpoena issued 16/09/2009 to attend court 24/09/2009 for "Committing crime against the IRAN internal security and giving propagandas against the Government". The third is "The Verdict'' dated 23/01/2011 at Esfahan. He was sentenced to one year's imprisonment for propaganda and five year's Imprisonment for co-operation with Iran's enemies. It shows that he was represented by ''Mr A A".

   The emails between Departmental Officers, dated 20 September 2013

   o) At page 7 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018 is a copy of folio 67, which is an email by Adam Kosack from the NSW Visa Cancellation Unit, dated 20 September 2013 to RB, presumably an officer with the Department regarding the cancellation of the applicant’s protection visa. It is also reproduced at page 30 of the exhibit “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, as folio 79 of the Department 2013 file.  

   p) The email by Adam Kosack from the NSW Visa Cancellation Unit, dated 20 September 2013 to RB stated from [3]-[6] as follows.

   ….

   He gave documents in Persian with English translations showing wet stamps for the Isfahan Department of Justice.

   One is a subpoena issued 21/06/2009 to attend court 25/06/2009 for "Committing crime against the Iran internal security and giving propagandas against the Government".

   One is a subpoena issued 16/09/2009 to attend court 24/09/2009 for "Committing crime against the IRAN internal security and giving propagandas against the Government".

   One is "The Verdict'' dated 23/01/2011 at Esfahan. He was sentenced to one year's imprisonment for propaganda and five year's Imprisonment for co-operation with Iran's enemies. It's a bit hard to figure out exactly what happened from the translation. The matter recorded appears to be some sort of appeal suggesting an earlier judgment. He was sentenced to one year's imprisonment for propaganda and five year's Imprisonment for co-operation with Iran's enemies. It shows that he was represented by ''Mr A A".

   …

   The emails between Departmental Officers, dated 26 September 2013

   q) At page 28-29 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is a copy of folios 80-81 of the Department 2013 file, which is a copy of the emails between Josephine Lamshed, principal migration officer from the Australian Embassy Tehran, Iran, dated 25 September 2013 and Adam Kosack from the NSW Visa Cancellation Unit, dated 26 September 2013. 

   r) At page 29 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 80, which is an email by Josephine Lamshed. At [3], the officer stated “It would be good to know whether the claims of arrest, charge, and conviction are true. I think I know the answer but is there any way of confirming arrest, charge, and conviction with authorities? If it's possible to send us scanned copies of these documents we can attempt to verify them with the authorities”.

   s) At page 28 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 81, which is an email by Adam Kosack in response to the email by Josephine Lamshed. At [6] of the email by Adam Kosack, the officer stated “I've given it some thought and I now think checking these documents with the actual authority will cause more trouble than it's worth.”

   Email between Departmental Officers, dated 3 October 2013

   t) At page 25 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 84 of the Department 2013 file,  which is a copy of the Departmental “Identity and other documents check” for the applicant conducted by officer AAE, dated 1 October 2013 from the Australian Embassy Tehran, Iran.

   u) Under the heading “Referral 2 of 2” the officer stated that “i examined the details of the ''verdict" Issued by the Branch # 6 of Esfahan Court of Appeal to find that the document bears neither the Signature nor the stamp of the relevant branch. It is practiced that such official document should at least bear the stamp of the issuing authority. On the- basis of the above l have serious concerns about the authenticity of the PA's claims and genuineness of the documents provided.”

   v) However, the officer did not have before him, a copy of the the "Verdict" document plus another that does show signatures and a wet stamp impression, (dot is marked 86 at top right hand corner). See XX below.

   The emails between Departmental Officers, dated 3 October 2013

   w) At page 23 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 86 of the Department 2013 file, which is a copy of the emails between Josephine Lamshed, principal migration officer from the Australian Embassy Tehran, Iran, dated 3 October 2013 and Adam Kosack from the NSW Visa Cancellation Unit, dated 3 October 2013.

   x) At [1] of the email by Josephine Lamshed, the officer advised Adam Kosack that  “We have realized what the problem ,is - unfortunately you entered the referral against the PV request ID which LE staff cannot view, 50 the referral never arrived in our Tehren referral batch. I have gone in and finalized it today, and additionally, Azadeh will see a you an email with the report.” Presumably, the "Verdict" document plus another that does show signatures and a wet stamp impression, (dot is marked 86 at top right hand corner) did not reach the Tehran referral batch.

   y) In response to the email, Adam Kosack advised Josephine Lamshed of the following.

   I got Azadeh's report as a pdf. Wow. A great result Key document missing the right stamp and a lawyer who does not know his client. Please pass on my sincere thanks to Azadeh.

   Two things.

   Can I have the lawyer's phone number, business name, address if handy because I suspect the visa holder will just say we contacted the wrong lawyer in which case I'll ask who his lawyer is and be able to confirm.

   Given the 'verdict" document appears bogus, I might contact policy to see If they object to us going to the authorities with a sanitized version of what we were given. The court saying the document is fake would be very strong evidence. Just a question, are you actually able to contact authorities and if so how long might a result take.

   z) It is apparent that this communication was made without Adam Kosack being aware that officer by the name of Azedeh Afkham Embrahimi, did not have before him, a copy of the the "Verdict" document plus another that does show signatures and a wet stamp impression, (dot is marked 86 at top right hand corner)”. 

   The further emails between Departmental Officers, dated 3 October 2013

   aa) At page 22 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 87 of the Department 2013 file, which is a copy of the emails between Josephine Lamshed, principal migration officer from the Australian Embassy Tehran, Iran, dated 3 October 2013 and Adam Kosack from the NSW Visa Cancellation Unit, dated 3 October 2013.

   bb) At [2] of the email, Josephine Lamshed advised Adam Kosack that “[f]or any formal verifications (Court orders, verdicts, etc ... ) In Iran we are required to submit the request through the Ministry of Foreign Affairs.”

   cc) In response, Adam Kosack advised that “Thanks for the info on the lawyer. I won't need anything further at this stage. His phone number is enough to address ant claim by the visa holder that we contacted the wrong lawyer. As for document checking with authorities - just not worth It. Thanks for putting my request In context.”

   Email between Departmental Officers, dated 9 October 2013

   dd) At page 32 of the exhibit marked as “DW-5” to the Affidavit by Dale Watson, affirmed 13 April 2018, is folio 91 of the Department 2013, which is a copy of the emails between Adam Kosack from the NSW Visa Cancellation Unit, dated 9 October 2013 and Josephine Lamshed, principal migration officer from the Australian Embassy Tehran, Iran, dated 11 October 2013. 

   ee) Adam Kosack advised Jospehine Lamshed at [4] of his email that “ I was perusing them and saw the attached document (“Applicant court amended:. It was not accompanied by a translation and initially I thought it was a pension of some type but now I see it appears to be identical to the "Verdict" document that Azadeh had commented on previously. Azadi'ih thought the document referred previously was of concern because it was not endorsed by the issuing authority and showed no signature. The attached document appears to be the "Verdict" document plus another that does show signatures and a wet stamp Impression (dot is marked 86 at top right hand corner). Can A tell me what this additional page is about? Does It give the "Verdict" doc any greater credibility?”

   ff) Josephine Lamshed advised Adam Kosack at [3] of her email, that ‘The  slightly angled rectangular stamp can be translator as stating: "Original Sighted, Esfahan court of Reconsideration". It is worth noting that anyone can design these sort of stamps and have them made easily for them at the bazaar.”

   gg) As a consequence, no formal verification of the Iranian Court orders and verdict were made by the Department to the Iranian Ministry of Foreign Affairs.

   The second section 438 certificate

   hh) The second section 438 certificate is exhibited and marked as “DW-6” and it is dated 4 November 2015. It pertains to folio 194 of the Department file number CLF2011/18815 (2011 file). The documents referred to in the second section 438 certificate are exhibited and marked “DW-7”. They appear at folios 22-3, 84-5, 104, 107-125 and 160-164 of the 2011 file. Those documents pertain to the protection visa application validity check list and identity test. As the applicant’s identity was not an issue in dispute, no jurisdictional error arises with regard to these documents.

   Jurisdictional error

   ii) At [39] the Tribunal found that the applicant’s “decision to return to Iran in this way logically demonstrates that he did not in fact fear being imprisoned and that it also demonstrates that the court verdict which he produced indicating that he had been sentenced to imprisonment is not a genuine document.” The information and documents relating to the first section 438 certificate related to the authenticity of the Iranian Court orders and verdict. No formal verification of the Iranian Court orders and verdict were made by the Department to the Iranian Ministry of Foreign Affairs. The applicant was not privy to the information and documents before the Tribunal and was denied procedural fairness, giving rise to a practical injustice.

1. Mr Williams of counsel on behalf of the applicant confirmed that there was a single ground on which the applicant relied as identified in the amended application, being the non-disclosure of the s 438 certificate dated 24 August 2015 and the documents the subject of that certificate. Mr Williams submitted this gave rise to a practical injustice in the conduct of the review and the circumstances of the present case.

2. There was a further certificate issued on 4 November 2015 under s 438 of the Act, however it is common ground that the documents the subject of that certificate were relevant only to the applicant’s identity and did not give rise to any practical injustice to the applicant by reason of the non-disclosure of the certificate or the documents the subject of the certificate.

3. Mr Williams’ submission in relation to materiality focused carefully upon the email communications concerning internal steps taken by Departmental officers to attempt to verify whether “the verdict” document was genuine. Mr Williams referred to the steps taken to send a document to Australian authorities working in Iran to determine whether or not “the verdict” document was genuine and steps taken to contact the lawyer purportedly representing the applicant. In one of the communications dated 9 October 2013, there is a reference to the attached document, which appears to be “the verdict” document, plus another that does show signatures and a weak impression. The document is marked 86 at the top right-hand corner.

4. Earlier email communication dated 20 September 2013 identified that “the verdict” document dated 23 January 2011 is “…a bit hard to figure out exactly what happened from the translation. The matter recorded appears to be some sort of appeal suggesting an earlier judgment…”. The communication also identified that the applicant “was sentenced to one year’s imprisonment for propaganda and five years imprisonment for co-operation with Iran’s enemies” and referred to the identity of the applicant’s new legal representation.

5. There is also email communication sent on 3 October 2013, which refers to examining the details of “the verdict” “issued by the Branch #6 of Esfahan Court of Appeal to find that the document bears neither the signature nor the stamp of the relevant branch”. The communication notes “it is practiced that such official document should at least bear the stamp of the issuing authority” and the author had doubts about the genuineness of the same.

6. Mr Williams submitted that the Court should draw the inference that the internal Department’s steps to try and identify the genuineness of the verdict document had erroneously sent for analysis a version without the relevant stamp. In the Court book at page 73, and marked Exhibit A, there is a copy of the Farsi version of what is said to be “the verdict” which purports to bear four stamps, three in round boxes and one rectangle stamp in English around the perimeter saying “Isfehan Department of Justice”. At page 149 in the Court Book, there is another version of the “the verdict” which bears only one rectangular stamp and no round stamp.

7. At the hearing that commenced on 11 June 2019 before this Court, it was identified that the Court Book did not include Item 5 described as ‘Copy of “verdict” document provided to Department by applicant after protection visa grant (other documents provided not reproduced) – referenced in decision to cancel applicant’s protection visa’. Given the reference in the email dated 9 October 2013 to “the verdict” document marked 86 at the top right-hand corner, the Court formed the view that it did not have the whole of the relevant documents in order to fairly hear both parties on the issue of materiality in respect of the documents that had not been disclosed and the subject of the s 438 certificate.

8. The Court accordingly made orders providing a regime for the disclosure by affidavit of those documents and, with the consent of both parties, made orders for the remaining issues to be determined on the papers. The Court also made orders providing a timetable for the filing of further submissions, with an opportunity for the applicant to have the matter reagitated for oral hearing if considered appropriate.

9. Mr Williams submitted that the effect of the email communications meant that the officer who looked at the document had a copy of “the verdict” document without the relevant stamp and signature and submitted that the person who assessed the document did not have the correct copy of the document showing the signature and stamp impression. Mr Williams referred to the fact that there was no formal verification of the Iranian Court orders and verdict made by the Department of the Iranian Ministry for Foreign Affairs, which is not surprising as to do so would have been to provide information about the applicant that it would not have been appropriate to undertake. Mr Williams submitted that the documents the subject of the s 438 certificate in question relate to the authenticity of the Iranian Court orders and verdict and that, as no formal verification had been made by the Department and the applicant was not privy to the information in the documents, the applicant was denied procedural fairness giving rise to a practical injustice.

10. The difficulty with the applicant’s case is that the applicant was squarely on notice of the substance of the communications and information the subject of the relevant s 438 certificate. All those matters the subject of the s 438 certificate in respect of the lawyer not knowing the applicant and not representing clients in proceedings of the kind the applicant alleged, the issue of the genuineness of the verdict document, the concern in relation to the stamp and the authenticity of the same were identified in the notice of intention to cancel. The genuineness of the verdict document was squarely raised by the Tribunal member with the applicant at the hearing.

Before this Court on 25 October 2019

1. Following the hearing on 11 June 2019, further submissions were advanced on behalf of the applicant by Mr Anforth of counsel which were filed with the Court on 24 October 2019. The Court admitted into evidence a further affidavit of Ms Watson dated 12 June 2019 and further identified more relevant documents, including documents that had been identified in a mirror index as not having been reproduced and they were marked DW8. The Court was also provided with a correctly paginated version of Ms Watson’s earlier affidavit that had been read, dated 13 April 2018, and for convenience, the Court marked the correctly paginated version Exhibit B.

2. The Court also read an affidavit by the applicant filed 23 October 2019, which was admitted only on the basis of the issue of futility if a denial of procedural fairness was otherwise identified. The applicant’s affidavit, on its face, endeavoured to address the merits of the issues before the Tribunal and/or made observations about the former counsel. The Court identified that the applicant could not approbate and reprobate and that it was apparent that the grounds advanced by the former counsel were, in substance, the grounds still being pressed on behalf of the applicant. The affidavit was not otherwise admissible in respect of the merits. It is for this reason that the Court confined the affidavit to the issue of futility in respect of a grant of relief, on which the affidavit was potentially relevant, in identifying other steps that might be able to be taken if relevant error were made out.

3. At the commencement of the further hearing, the Court also sought to explore with counsel for the applicant whether there was any issue to be advanced on the ground of apprehended bias and the Court expressly referred to recent submission that has taken place in the High Court of Australia, albeit in the context of a different statutory provision. Mr Anforth submitted that he did not seek to rely on an allegation of apprehended bias and was content to advance the case on the ground that had been identified earlier by Mr Williams, as expanded upon in Mr Anforth’s written submissions.

4. The applicant’s further written submissions contend that the applicant, by reason of the non-disclosure of the certificate and the documents the subject of the certificate, lost the opportunity of being able to input further on the version of the verdict document that was the subject of some assessment as to its authenticity. The topic of the authenticity of the verdict had been addressed at length by the delegate. The applicant provided the delegate’s decision to the Tribunal for the purpose of an application for review within the meaning of s 424(3)(a) of the Act.

5. The delegate’s decision made 31 July 2015 put up in lights the fact of two different verdict documents that had been provided by the applicant. One version had been attached to the notification of cancellation under s 109 of the Act. The delegate’s decision identified information in respect of the lawyer denying that the applicant was his client in the context of considering whether the verdict document was genuine.

6. The delegate’s decision also identified that, about one week after the protection visa was granted, the visa holder provided further documents to the Department and that the documents included, relevantly, a document in Farsi with no translation, which appeared to be nearly identical to the verdict document. The delegate’s decision identified that these documents had been unnoticed at the time of the sending of the cancellation notice.

7. An extract of the concluding part of the respective verdict documents in Farsi was set out in the delegate’s decision. The delegate reasoned that the verdict document was counterfeit. It is clear from both the context of that decision, as well as the documents in the Court Book, that, following the notice of intention to consider cancellation dated 15 October 2013, the version of the verdict document was the one with the stamps and signature, together with an English translation, that are referred to in page 150 of the Court Book, in which the notice of intention says:

   I’ve attached a copy of the relevant documents for your information.

8. It is apparent from the Court Book that what was provided for the applicant to respond to was the verdict with the English translation at page 200 in the Court Book and the version with the stamps that appears at page 209 of the Court Book. It is also apparent that the notice did not include the version that the delegate’s decision identified as having gone unnoticed at the time of the sending of the notice. Mr Anforth nonetheless contented that the confusion as to what had been the subject of the examination of the verdict issued by Branch #6 of the Esfahan Court of Appeal was an opportunity that the applicant had lost because of the non-disclosure of the certificate and documents the subject of the certificate.

9. The notice of intention to consider cancellation referred to, on page 153 of the Court Book and on page 25 of Exhibit B, the observation that the document bears neither the signature nor the stamp of the relevant branch. Mr Anforth identified that that observation did not appear to accord with the version of the verdict document that was attached to the notice as it bore both stamp and signature in the untranslated version.

10. The Court drew attention to the reference to Branch #6 in circumstances where the English translation refers to Branch #3. The Court noted that the summons that is relied upon by the applicant also referred to Branch # 3 and bore similar seals to that on the version of the verdict contended by the applicant to be genuine at page 201 of the Court Book and the subject of the translation at page 200.

11. The delegate’s reasoning at page 332 of the Court Book expressly made clear the existence of the two different verdict documents, referred to the issue of genuineness, and referred to the consideration by the delegate that the reference to no stamp meant there was no official stamp from the particular Branch of the Court said to have issued the original document as appears on page 333. Further, the visa holder did not comment about why the document does not show a signature or stamp.

12. The applicant was clearly on notice of the substance of the two different versions of the verdict, which the applicant himself had supplied, and was on notice as to the issue of assessment of authenticity. The assessment issue as to authenticity made reference to the absence of a stamp, meaning there was no official stamp from any particular Branch of the Court. In these circumstances, the applicant suffered no practical injustice by reason of the non-disclosure of the certificate or the documents the subject of the certificate in the present case.

13. Mr Anforth in his submissions sought to annex only the two summonses and the verdict documents the subject of the argument as to why the applicant has suffered a practical injustice. Mr Anforth submitted that the applicant lost the opportunity to press for a formal verification by the Iranian Ministry of Foreign Affairs.

14. It was perfectly apparent in both the notice of cancellation and the delegate’s decision that no such formal verification had taken place, nor could such a verification take place as it would clearly not be possible in the context of preserving the applicant’s anonymity and from preventing crystallisation of the applicant’s claimed fears of harm. The absence of reference to the Iranian Ministry of Foreign Affairs for verification does not identify any practical injustice suffered by the applicant in the process of the review by reason of the non-disclosure of the certificate and documents the subject of the certificate.

15. A document was also tendered in relation to ‘The Code of Procedure of Public and Revolutionary Courts of the Islamic Republic of Iran (Crime Affairs)’, which was marked Exhibit C. That document was also admitted only on the basis of being limited to the issue of futility if a denial in procedural fairness was otherwise made out. The Court is not in a position to receive fresh evidence in respect of the substantive merits and the Court was satisfied that the document was not otherwise admissible to establish any alleged jurisdictional error.

16. The assertion of mistakes in the process that the applicant could have drawn attention to and could have sought to address, in terms of the sealed and signed documents, was itself an issue up in lights from the delegate’s decision which identified the issue in respect of the absence of a stamp in the context of verification. The applicant suffered no practical injustice by reason of the non-disclosure of the documents the subject of the certificate. In these circumstances, no practical injustice has been identified by reason of the failure by the Tribunal to disclose the certificate or the documents the subject of the certificate.

17. The Court does not accept that there is any information in the documents the subject of the certificate of a kind that can be said to be material to the applicant and of which the applicant was not squarely on notice. The applicant suffered no practical injustice in the circumstance of the present case by reason of the non-disclosure of the certificate or the documents the subject of the certificate. The Court does not accept that any jurisdictional error as alleged in ground 1 of the amended application is made out.

18. The applicant was aware of the substance of the information gleaned by the Department in relation to the verdict document, the applicant’s overseas travel and returning to Iran and to the applicant’s purported lawyer. There was no denial of procedural fairness in the circumstance of the present case in the process being the conduct of the review by the Tribunal by reason of the non-disclosure of the certificate or the documents the subject of the certificate. No jurisdictional error as alleged is made out.

19. Accordingly, the amended application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 8 November 2019