DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 178

Federal Circuit and Family Court of Australia
(DIVISION 2)
DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178

File number(s): SYG 1766 of 2018

Judgment of: JUDGE GIVEN

Date of judgment: 8 March 2023

Catchwords: MIGRATION – Failure of Tribunal to comply with s 425 of the Migration Act – Tribunal curtailed right of applicant wife to give evidence and allowed her to remain in hearing room during applicant husband’s evidence – request by applicants for second hearing to enable applicant wife to give evidence – Tribunal discounted weight applicant wife’s evidence as an un-objective witness and by reason of having stayed in hearing room at first hearing – no right under Part 7 of Migration Act for protection visa applicant to be represented before Tribunal – Tribunal made findings based on personal assumptions

Legislation:
Migration Act 1958 (Cth) ss 36, 359, 363, 366A, 366B, 424, 425, 429, 441C, 457

Migration Regulations 1994 (Cth)

Cases cited:
AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317

BEL16 v Minister for Home Affairs (2019) 167 ALD 295

BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1

EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518

John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79

Kelly v Australian Postal Corporation (2015) 67 AAR 359

MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Border Protection v MZAIV [2016] FCA 251

Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403

Re Alley, Ex parte Australian Building Construction Employees’ & Builders Labourers’ Federation (1985) 64 ALR 6

Re McCrory; Ex parte Rivett (1895) 21 VLR 3

SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463

SZOVP v Minister for Immigration and Anor (No.2) [2011] FMCA 442

SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68

Vakauta v Kelly (1989) 167 CLR 568

Division: Division 2 General Federal Law

Number of paragraphs: 121

Date of hearing: 28 September 2022

Place: Sydney

Counsel for the Applicants: Mr N Poynder (direct access)

Counsel for the Respondents: Ms N Maddocks

Solicitor for the Respondents: Sparke Helmore
ORDERS

SYG 1766 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DHQ18

First Applicant

DHR18

Second Applicant

DHS18

Third Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

8 March 2023

THE COURT ORDERS THAT:
1.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 1 June 2018 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to
re-determine, according to law, the application for review before it.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN

Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant Protection visas.
Background
The background of the matter is derived in part from the submissions of the applicant but does not appear to be in dispute.
The first applicant (applicant) is a national of Iran who first arrived in Australia on 9 October 2014 with his wife and their (then) five year old son, travelling on a Temporary Work (Skilled) (subclass 457) visa (CB 206).
On 27 January 2015, with the assistance of their licenced migration agent, the applicants lodged an application for a Protection visa together with a statement of claims (CB 141 to 142) of the applicant which included the following:
(a)the applicant was a photojournalist who covered the presidential election campaign in 2009, including rallies and protests about the election results;
(b)on 4 November 2009 the applicant passed through a rally at Hafte Tir Square in central Tehran and used a small, compact camera to take photos. Suddenly there was the noise of gunfire and teargas and a crowd ran towards him, pursued by security forces. He ran to an alley but it was blocked so “[he] immediately tossed [his] compact camera into the garage of a house and started to run towards the square”; however “…motorcyclists who had seen [his] camera stopped [him]”, beat and insulted him and called for a car to pick him up with other protesters;
(c)the applicant was detained for 18 days, during which he ascertained that the authorities had raided his house and workplace and had taken his computers. He was told that he would never be released because of photos they found of him with former colleagues who were known troublemakers/offenders. However, the authorities found no evidence of him being in contact with foreign media and he was eventually released, with the help of his friend’s brother-in-law, after 18 days in detention;
(d)the applicant was again arrested on 7 February 2010, a few days before a big rally for the day of victory of the Islamic Revolution. He was held for two days and interrogated about his published work (including pictures);
(e)on 11 February 2010 the applicant’s son was born and the applicant ceased his press activity, but because of his young son, he felt unable to follow other journalists who were fleeing from Iran. He was drawn back to journalism and, in February 2012, he worked for the reformist party in the parliamentary elections. In October 2012 the same executive team asked him to work for a reformist paper, but two days after he joined, he was taken away by the security forces who told him that if he worked for the press or joined any election campaign, he would be punished badly.
(f)a friend of the applicant (A), contacted the applicant and told him that the overseas-based opposition wanted to start a website design project. He accepted and began designing a website which highlighted imprisoned students. He became familiar with other reporters working on overseas news sites, including (S), who had been summonsed by authorities and borrowed money from the applicant to flee Tehran. The applicant feared that he would be implicated if S were arrested, so the applicant moved from Tehran to place approximately 50km away;
(g)the applicant was looking for a fast and safe way to go abroad with his family, and he spoke with a migration agent and applied for a Subclass 457 visa in Australia. On 9 August 2014 the applicant and his family were granted Subclass 457 visas (CB 149 to 164), and they left Iran on 8 October 2014;
(h)once in Australia, the applicant was informed by his father that two security officers had come to their house to arrest him.
The applicants submitted an array of supporting documentation (CB 144 to 179). On 17 August 2015 the applicant attended an interview with the delegate (CB 207). On 9 October 2015 the delegate notified the applicants (via their migration agent as authorised recipient) of the decision made on the same date, to refuse to grant the visas on the grounds that the applicant had fabricated his claims (CB 205 to 218).
On 26 October 2015 the applicants lodged an application for review with the Tribunal, seeking review of the delegate’s decision and appointing their (new) migration agent as their authorised recipient (CB 219 to 221).
On 14 February 2018 the Tribunal wrote to the applicants (via their authorised recipient) inviting them to attend a hearing of the Tribunal (CB 240 to 243).
In February 2018, in advance of the Tribunal hearing, the applicants provided the following supporting documents:
(a)an English translation of a Persian judgment (with a specific date) by the Yazd Public Criminal Court (CB 244 to 245) which summarised a case against the applicant and 10 other accused persons in which they were found guilty and convicted of misdemeanours, having been “alone with a ‘Naa Mahram’ in the same carriage for at least several minutes”;[1]
(b)a statutory declaration made by the applicant’s wife on 27 February 2018 (CB 246 to 255) which corroborated the applicant’s work as a photographer and their experiences in Tehran in 2009 to 2010. This included the applicant’s disappearance on 4 November 2009 when she was pregnant, a visit by plain clothes security personnel to their home on 9 November 2009 when the applicant’s computer was seized, together with other belongings from his desk, and they threatened her to not speak about his arrest, together with evidence of his recovery around two weeks later. The second applicant also described a further arrest and detention of the applicant in February 2010, his work as a journalist, the increased targeting of journalists in Iran, and their eventual departure for Australia;
(c)
a letter dated 9 May 2017 from Reporters Without Borders (RWB) Paris

(CB 256 to 257), confirming his work as a photojournalist and his experiences in Iran, and the conditions relating to media freedom in Iran in general. The letter said that “when contacted by journalists who have fled their country, we use our network of correspondents to verify that they are indeed journalists and have been threatened”; and
(d)a statement of support made on 25 February 2018 by the wife’s employer (CB 258).
[1] A translator’s note (CB 245) explained that a “Naa Mahram” is an unrelated person of the opposite sex
The applicant also provided a further statutory declaration made on 27 February 2018 (CB 259 to 276) which relevantly stated:
(a)the conviction by the Yazd Public Criminal Court arose when the applicant had been sent to Yazd with a team of “free journalists and photographers” and was arrested, detained, and “accused of an illegitimate relationship in the train carriage” (CB 261 at [19] to [20]);
(b)on the day of the demonstration at Hafte Tir Square on 4 November 2009, the applicant had taken both of his cameras; the smaller one to take pictures without drawing attention to himself and in his backpack was a larger one he used for his job every day (CB 262 to 263 at [25] to [26]). He got out of his taxi and began to take pictures when he was faced with a large number of people running towards him being chased by special forces, firing bullets and tear gas. He took refuge in an alley, but saw that both sides were blocked by the security forces (CB 263 at [27] to [29]): he claimed that:
“All I could do was to throw my smaller camera inside the parking of a house and start running towards the square, but the guards had noticed my backpack with the camera inside it and they stopped me” (CB 263 at [30]).
(c)the applicant was detained and taken away, “along with some other people” (CB263 at [31]). They were taken to a sports centre and “they had us all sit facing the wall next to each other waiting…” (CB 264 at [33]). After a couple of hours the authorities divided the detainees up and transferred them to an unknown location (CB 264 at [34]);
(d)when the applicant was finally released 18 days later “…they told me, you better not be seen anywhere near a crowd ever again [and]…you better always be accessible so if we need you we can access you as soon as possible.” It was also a condition of his release that he not divulge anything about his interrogation and he should “consider my case still open and to watch what I’m doing” (CB 269 at [53]);
(e)in the lead-up to the 2013 presidential election, the applicant began “…desperately looking for a way to leave Iran…” as he was under tremendous pressure (CB 272 at [96]). The applicant noted that: “The only possible way for us was either to go to Europe or to Australia by boat, and they were both very dangerous and impossible for my family”: (CB 273 at [97]). The applicants had received their Subclass 457 visas for Australia in August 2014 (CB 156 to 158), but the applicant was worried about being detected at the airport: (CB 273 at [98] and [103]). He decided to take the chance to leave via the airport on 20 October 2014, but towards the end of September 2014 he heard that his colleague, S,[2] had been arrested, so he brought forward their departure date to 8 October 2014 and they left (CB 274 [105] to [106]);
(f)once safely in Sydney:
we were looking for some basic necessities for our life and also looking for a lawyer in Sydney when, three weeks after we had left Iran, my father told me that two secret service agents in plain clothing had come to our house for my arrest.
(CB 275 at [113]).
[2] See [4(f)] above
On Thursday 1 March 2018, being a week before the Tribunal hearing, the Tribunal wrote to the applicants (via their authorised recipient) requesting that the applicants provide the following documents by Tuesday 6 March 2018 (CB 278 to 279):
(a)computer-generated academic transcripts of the applicant’s tertiary study, including subjects taken and grades awarded;
(b)computer-generated bank statements for the bank accounts utilised by the applicant for payment of his wage/salary from employers. This was required to be for the five years prior to leaving Iran and show wages input from the applicant’s various employers;
(c)health insurance documentation for the five years prior to leaving Iran showing the applicant’s employer and the health insurance scheme to which the applicants belonged; and
(d)because the letter from RWB has no methodological component to give the Tribunal an insight into sources on which RWB based their letter of support, [the applicant] should provide a letter from RWB setting out their methodology for accessing the information they claimed to have. In particular, whom RWB contacted, on what dates, how they verified this information was correct and whether the person to whom they spoke could reasonably be expected to be in possession of that information.
There is nothing in the Court Book to indicate whether the applicants responded to the hearing invitation to notify their attendance nor to formally request that the Tribunal take evidence from any person other than them.
On 2 March 2018, the applicants’ representative replied to the Tribunal forwarding an email from the second applicant which indicated that with such short notice, and noting that the “weekend” in Iran was Thursday and Friday, she was not confident that the documents sought could be provided within the time set by the Tribunal, but that the applicants would endeavour to obtain the documents (CB 280 to 282).
On 7 March 2018, the Tribunal hearing took place. The hearing information record (CB 283 to 285) relevantly records the following:
(a)the first and second applicants attended;
(b)each of the first and second applicants is recorded as preferring to take an affirmation;
(c)the third applicant did not attend and a notation records that he was at school;
(d)the applicants’ representative was present;
(e)an interpreter in the Persian language was present;
(f)a potential witness, (Mr R) was present;
(g)Mr R’s role was described as “Witness (Lawyer/employer of wife)”; and
(h)Mr R was recorded as preferring to take an oath on the Bible.
The applicants provided a number of documents at the Tribunal hearing (CB 286 to 342) including:
(a)the academic transcript for the applicant’s Bachelor degree in journalism (CB 286 to 288) and an English translation of the degree (CB 289);
(b)letter from the second applicant’s employer to the Tribunal in relation to the second applicant dated 25 February 2018;
(c)letter to the applicant from Amnesty International dated 6 March 2018 and associated country information (CB 294 to 342).
On 28 March 2018, the Tribunal wrote to the applicants (via their authorised recipient) inviting them to comment on information which would, subject to their comments, be the reason or part of the reasons for affirming the decision under review (s 359 letter), being that the applicant had been asked to provide:
(a)translated “bank statements/health insurance claims to show proof of employment” which had not yet been provided; and
(b)a copy of the methodology used by RWB “to ascertain the information they included in a letter”, which had also not been provided.
The applicants were informed by the s 359 letter that the inability to provide these documents may call into question the veracity of their claims regarding the nature of the applicant’s employment, and the alleged interest in him from the Iranian Government as a result of that employment. The deadline by which the applicants were required to comment was 11 April 2018.
On a date which is indeterminable (but prior to the Tribunal making its decision), the following documents were submitted to the Tribunal:
(a)translated certificates of employment relating to the applicant’s work for a magazine as a photographer and graphic designer from February 2007 to June 2010 (CB 347 and CB 355);
(b)a statutory declaration of the applicant made on 10 April 2018 (CB 348 to 354) (April statutory declaration), in which he set out steps taken to provided bank documents (CB 349 to 351 at [4] to [8]), health insurance claims (CB 51 at [10]) and also set out an email response received by the applicant from RWB on 3 April 2018 (CB 351 to 352 at [11]) which, prior to setting out organisational information stated as follows (anonymisation added):
It is important to underline that our Iran desk has been working for more than 20 years to monitor the situation of press freedom from Iran, with the help of trusted journalists.
However, we can not give precisely the Australian authorities the names of our sources. For security reasons, we need to preserve their anonymity. In your case, we were able to confirm your arrest in 2004 when you were working as photographer for [named publication].
(c)the April statutory declaration also made additional comments about the applicants’ experience at the first Tribunal hearing. The applicants noted that substantively, they were given only 45 minutes for their claims to be explored (CB 353 at [13]), [15] and [16]) together with the chronology of steps taken in advance of the lodgement of the visa application (CB 353 at [17] to [21]). Relevant to the grounds of review, after making comments about the hearing format, the applicant said:
This led to my wife who was nominated as a witness not being given the chance to present oral evidence.
(d)translations from Iranian websites (CB 356 to 358).

On 3 May 2018, an officer of the Tribunal wrote to the applicants’ representative (which from the context of the email appears to have followed an earlier telephone discussion) to confirm that the Tribunal member was prepared to facilitate a further hearing to enable the second applicant to give evidence (CB 359). The email stated (original emphasis):
If they wish to attend a second hearing, in order to expedite this matter it is requested that they agree to a reduction in the notice given for hearings in writing.
On 4 May 2018, the applicant’s representative responded to indicate that while the applicants did wish to have a second hearing, they were not prepared to waive the right to proper notice for same, in order to enable them enough time to prepare and to make suitable child care arrangements for the third applicant during the hearing (CB 360).
On 8 May 2018, the Tribunal wrote to the applicants, via their authorised recipient, inviting them to attend a second hearing on 25 May 2018 (CB 363 to 366). The applicants responded to accept the hearing invitation by a response form dated 21 May 2022 (CB 367 to 369). On 25 May 2018, the first and second applicants attended a further hearing of the Tribunal (second hearing). A hearing information record in respect of the second hearing records the following:
(a)the first and second applicants attended;
(b)each of the first and second applicants is recorded as preferring to take an affirmation;
(c)the third applicant did not attend;
(d)the applicants’ representative was present; and
(e)an interpreter in the Persian language was present.
Either at (or immediately following) the second hearing, the applicants submitted a translated Iranian website document and some photographs.
On 4 June 2018, the Tribunal notified the applicants (via their authorised recipient) (CB 381) of its decision made on 1 June 2018, affirming the decision of the delegate refusing them the visas (CB 383 to 402).
Tribunal decision
In its decision, the Tribunal set out the relevant criteria that the applicants must satisfy to be granted a Protection visa, pursuant to s 36 of the Act (CB 384 at [3] to [8]). That is, that each applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection grounds’, or is a member of the same family unit as a person who holds a protection visa of the same class. The Tribunal then set out the relevant principles and policy requirements applicable to the determination of protection status.
After setting out the background relevant to the making of its decision, including the applicants’ claims and evidence in their Protection visa application, including the applicant’s additional statutory declaration of 27 February 2018 and the first and second Tribunal hearings (CB 385 to 394), the Tribunal ultimately found that the applicant was not a “reliable, credible or truthful witness” and that he had fabricated his claims in order to be granted the visa.
In respect of the applicant’s claim that he was a photojournalist, the Tribunal:
(a)found that despite describing himself as such, the applicant was not a journalist or a photojournalist, but rather a graphic designer and a photographer, although he had completed a journalism course in 2013 (CB 394 at [78]);
(b)did not accept that the applicant worked for a magazine equivalent to the Financial Times due to his lack of qualification and supporting evidence in respect of his employment (CB 394 [79] to [82]; and
(c)placed little weight on the more political photos presented by the applicant as evidence of activities relating to politics or political activism, and did not accept that the applicant worked on anti-government websites in Iran and/or Australia (CB 395 at [83] to [84]).
In terms of the applicant’s attendance at protest/s, the Tribunal:
(a)did not accept that the applicant ever attended a protest, nor that he was detained during a protest he was photographing in 2009. The Tribunal found that the applicant lacked credibility and that the claim was implausible given the applicant said he ran into a narrow laneway, was faced by security personnel and threw away his camera containing incriminating photographs, without being seen by police (CB 395 at [85]);
(b)did not accept that the applicant could have undertaken such an action (see (a) above) in full view of the security force, and found that the applicant was “vague” about the occurrence (CB 395 at [86]). The Tribunal also noted “other anomalies” at to the veracity of the story, namely that the applicant was the only one captured and that well-trained, special securities personnel did not search the area where the applicant had been detained to check that he had not disposed of any incriminating material.
The Tribunal did not accept that the applicant’s work colleague had an arrest warrant issued for him, or that two security force personnel attended the applicant’s home three weeks following his arrival in Australia. The Tribunal described the applicant’s claim as “extremely fortuitous” (CB 396 at [89]), and the said applicant’s delay in leaving Iran (or going to neighbouring countries such as Armenia or Turkey), given that he had a valid passport was “not indicative of someone who feared arrest” (CB 396 at [90]). The Tribunal did not accept the applicant’s reasoning for not wanting to travel to Armenia or Turkey, and that observed evidence such as country information had not been provided to support the applicant’s claims.
Further, the Tribunal did not accept that the applicant was detained by authorities in Yazd with a number of journalists, charged and fined (CB 396 at [94]). The Tribunal placed little weight on the documents provided by the applicant in support of this claim, namely, the letter from RWB and a photocopy of a translation of a court judgment from Farsi. The Tribunal did not accept the applicants’ reasons for the inconsistency between their “clean” police record and visa application, and the applicant’s claim. The Tribunal also found that RWB was not an “objective organisation” (CB 396 to 397).
The Tribunal noted the circumstances surrounding the applicant’s claim that the second applicant was not given the chance to present oral evidence at the first hearing due to time constraints (CB 397 at [100]). The Tribunal said that, on request, the applicants were invited to a second hearing. However the Tribunal said that it was not able to lend much weight to the oral evidence provided by the second applicant at the second hearing, because she was not an “objective source” and had remained in the hearing room(CB 397 at [100]).
The Tribunal was not satisfied that there was a real chance the applicants would be persecuted as failed asylum seekers if they were to return to Iran as voluntary returnees, and did not accept that there were any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Iran, there was a real risk that the applicants would suffer significant harm on the basis of their claims, as outlined in the complementary protection criterion in s 36(2)(aa).
Application to this Court
By an application to show case filed with this Court on 26 June 2018 the applicants commenced the instant proceedings seeking review of the Tribunal’s decision. The applicants have been represented by their Counsel (on a direct access basis) since the inception of the proceedings. The proceedings were initially docketed to another Judge of the Court (first primary Judge). On 18 July 2018, the first primary Judge made orders in chambers by consent for the preparation of the matter by which, inter alia:
(a)the applicants were granted leave to file an amended application by 14 September 2018; the first applicant was appointed as the litigation guardian for the third applicant; and
(b)the proceedings were listed for a callover on 7 November 2019.
On 28 September 2018, a Registrar of the Court made orders by consent in chambers varying certain of the orders made by the first primary Judge, including that any amended application and Affidavit evidence be filed by 28 September 2018.
On 5 October 2018, an Affidavit of Jodie Ellen Coomber made on 4 October 2018 (Transcript Affidavit) was filed for the applicants. The Transcript Affidavit annexes Transcripts of each of the two Tribunal hearings, prepared by Ms Coomber based on hearing audio obtained from the Tribunal pursuant to a Freedom of Information request (CB 414). [3] On 6 October 2018 a proposed amended application was filed.
[3] The footer to the Transcript of both hearings contains details of another applicant which is acknowledged as being a typographic error
On 4 November 2019, by orders made in Chambers, the first primary Judge listed the matter for hearing before her on 27 May 2020. On 8 May 2020, by orders made in Chambers, the first primary Judge vacated the hearing (presumably by reason of the COVID-19 pandemic). The matter was later placed in the central Migration docket and, following the retirement of the first primary Judge, the matter was brought into my docket on 15 July 2022 and listed before me on 28 September 2022.
Written submissions were filed for the applicants and the first respondent on 18 September 2022 and 26 September 2022 (respectively). On 26 September 2022, an Affidavit of Flynn Stephen Rush made 26 September 2022 was filed for the first respondent (Rush Affidavit). The applicants and the first respondent were each respectively represented by Counsel at the hearing before me.
At the commencement of the hearing, Counsel for the applicants sought leave to rely upon the proposed Amended Application filed in 2018, given that this was outside of the grant of leave made by the Registrar, subject to two changes. There being no objection for the first respondent, I granted that leave with the proposed amendments and made the following order:
1.Leave is granted to the applicants to rely up the amended application filed on 6 October 2018 subject to the following amendments:
a. ground 1 is abandoned; and
b. the reference in ground 2 to “s 360” is amended to read “s 425”.
For the applicants the Transcript Affidavit was read, without objection.
The Rush Affidavit was read for the first respondent on the understanding that the documents annexed thereto were advanced solely for the purpose of completing the record of documents which ought to have been included in the Court Book. The first respondent also tendered the Court Book which was received into evidence, without objection, and marked Exhibit “1R”.
Grounds of review
By reference to the Amended Application, subject to the caveats included in the order made at hearing, the following grounds[4] remain for consideration (omitting particulars):
2.The Tribunal failed to comply with its obligation under s 425 of the Act to provide the applicants with an opportunity to give evidence relating to the issues arising from the decision under review.
3.The Tribunal’s decision was based on a critical finding which lacked any logical foundation.
4.The Tribunal failed to address evidence and submissions made by the applicants in relation to their delay in applying for asylum.
5.The Tribunal misconstrued corroborating evidence about the husband’s arrest in 2004 provided by Reporters Without Borders.
[4] The grounds will retain their original numbering in order to correlate to the order of the Court on 28 September 2022.
Ground 2
This ground alleges a breach of s 425 of the Migration Act 1958 (Cth) (Act), constituted by the Tribunal having failed to afford the applicants a genuine hearing opportunity by reason of having allowed, or even encouraged, the second applicant to remain in the hearing room throughout the giving of evidence by the first applicant, and then having unfairly undermined the second applicant’s credibility by denying her an opportunity to corroborate her husband’s evidence independently, in circumstances where the Tribunal used the consistency of that evidence in a way which was adverse to the second applicant.
Ground 2 relates to finding by the Tribunal at [100] of its decision. That paragraph states:
Post-hearing the applicant claimed that his wife, who was nominated as a witness, was not given the chance to present oral evidence due to time constraints. No hearing response was received that listed her as a witness was received, although she did submit a statutory declaration. She stated at the first hearing that she had no separate claim and was in attendance for the entirety of the hearing however on request she was given an opportunity to speak at a second hearing. I was not able to lend much weight to her oral evidence as she is not an objective source, and is in full knowledge of every part of her husband’s claims and of the Tribunal’s concerns about them as a consequence of the first hearing and the post-hearing submissions.
The applicants contend that the second applicant was a critically important witness and observed that by her statutory declaration of 27 February 2018, she was able to corroborate most of the applicant’s evidence, including central events surrounding his arrest and detention in 2009. The applicants say it can be inferred they had little, or no, knowledge at the hearing of the importance the evidence of one witness, in the absence of other related witnesses, might have. Moreover the applicants highlight that it was the Tribunal, and neither of them, who made a decision at the commencement of the first hearing to allow the second applicant to remain in the hearing room.
The applicants contend that by following said procedure the Tribunal was clearly in error because it deprived the applicant of his only corroborating witness by causing the weight of her evidence to be heavily discounted. The error is said to be a contravention of s 425(1) of the Act, which relevantly requires that the Tribunal invite the applicants to “give evidence”. While that invitation was initially extended to each of the applicants it is said, ex post facto, to have been rendered nugatory in relation to the second applicant because of the alleged procedural error, of the Tribunal’s own making, at the first hearing.
The first respondent contends that the Tribunal complied with its obligations under s 425 of the Act by inviting the applicants to appear before it to give evidence and present arguments.
The first respondent says that there is nothing to suggest that the applicants indicated to the Tribunal that the second applicant wished to give evidence, including by reference to the Transcript which forms Annexure “JEC-1” to the Transcript Affidavit. Rather, the Transcript is said to “simply record” that the second applicant was asked whether she relied solely on her husband’s claims or if she had any claims of her own (T4.16), and that she confirmed that she relied solely on her husband’s claim (T4.19). The first respondent points to there having been no response to hearing invitation returned by the applicants in relation to the first hearing, to indicate that the second applicant wished to give evidence (CB 397 at [100]). Accordingly, it is contended for the first respondent that in circumstances where the Tribunal was given “no indication that the second applicant was to give evidence prior to, or at, the First Tribunal Hearing” the Tribunal did not engage in any unfairness by allowing her to remain in the hearing room during the first hearing. In those circumstances, the first respondent says that the applicants were not denied a meaningful opportunity to be heard, citing see SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68 at [15] per Flick J (citing in turn Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36] to [38] per Gray, Cooper and Selway JJ).
To the extent that the Tribunal is alleged to have encouraged the second applicant to remain in the hearing room while her husband gave evidence, the first respondent says that there is nothing before the Court to suggest that the Tribunal did so. Rather, the Tribunal member “simply stated that he was “happy” for the Second Applicant to stay in the room during the hearing, having received confirmation from the Second Applicant that she solely relied upon her husband’s claims” (T4.21 and CB 386 at [21]).
The first respondent relies essentially on principles of waiver to say that the applicants’ representative was present at the first hearing yet no issue was raised by him (or the applicants) in relation to the second applicant wishing to give evidence, or remaining in the hearing room while her husband gave evidence.
Lastly, the first respondent says that no adverse credibility findings were made by the Tribunal in relation to the second applicant. Instead, the Tribunal found that it was unable to lend much weight to the second applicant’s oral evidence, because she was not an objective source, and she was “in full knowledge of every part of her husband’s claims and of the Tribunal’s concerns about them as a consequence of the First Tribunal Hearing” (CB 397 at [100]). As a result the first respondent says that the fact the second applicant was in attendance for the entirety of the first hearing and heard the applicant’s evidence was “not the only reason” that the Tribunal found it was not able to lend much weight to the second applicant’s oral evidence. Rather, the first reason advanced by the Tribunal for placing little weight on the second applicant’s oral evidence was that she was not an objective source, which would have remained the case, regardless of whether she had heard the applicant’s evidence during the first hearing, because she is the applicant’s wife. The first respondent says the weight to be given to evidence was a matter for the Tribunal, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J.
Consideration of this issue requires regard to be had to the statutory framework within which the Tribunal operates in relation to its procedures. It is also relevant to have regard to certain of the differences between the way in which the Tribunal operates in respect of migration decisions which are reviewable under Part 5 of the Act (namely specified visas other than Protection visas) and those reviewable under Part 7 of the Act (protection visas), which was the Part applicable to the Tribunal’s review in the instant case.
Section 422B of the Act, the oft-cited catch-all exhaustive statement of the natural justice hearing rule is an apt place to begin. Sub-section 422B(1), being the first section of Part 7 Division 4 of the Act, and which is usually the only part of s 422B to which regard is had, provides that:
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
However ss 422B(3) relevantly provides that:
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
which reflects s 420 of the Act (albeit a section which falls outside of Division 4 and is thus not itself part of the Division to which s 422B applies) which states:
420 Tribunal’s way of operating
The Tribunal, in reviewing a Part 7-reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Section 420 of the Act is relevant to the present case insofar as, while it is true that the Tribunal is not formally bound by the rules of evidence, it is a matter of moment that the same provision which relieves the Tribunal of that formality, reiterates that it must still act according to the substantial justice and merits of the case.

Next, regard must be had to s 425 of the Act in its entirety. The section provides as follows:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Despite being expressed in terms of an obligation to “invite” the applicant/s to a hearing, it is well-established that this section directs itself to the hearing opportunity itself, not simply the invitation to attend it. So much is plain from the cases relied on by the first respondent at [44] above. The content of the notice of invitation to appear before the Tribunal is contained in s 425A of the Act, which requires:
Notice of invitation to appear
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Section 426 of the Act deals with requests from the applicant/s that the Tribunal take evidence from persons whom they name, in writing, within 7 days of being invited to hearing by the s 425A invitation notice. Section 426 of the Act provides:
Applicant may request Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
It seems tolerably clear that when, in s 426(2) of the Act it refers to a person or persons named in “the notice” that within the context of that subsection it is a reference to the applicant/s notice to the Tribunal listing desired witnesses, not to the notice under s 425A of the Act (which, for example is so described in ss 426(1)). The effect of s 426 is that applicant may request that the Tribunal take evidence from persons other than the applicant. There is no part of s 426, including when read also in the context of s425A of the Act, which requires that the applicants name themselves as wishing to give evidence.
The form of “Response to hearing invitation form” used by the Tribunal (at least in the instant case) can be found at CB 367 to 369.[5] By that form, the applicants were not asked if they wished to give evidence. Rather, as can be seen at approximately point 4 of CB 367, the applicants were asked which of them would “take part” in the hearing (anonymisation added):
[5] Being the form returned by the applicants in respect of the second hearing. As noted above, the applicants appear not to have returned a completed version of this form in respect of the first hearing
Part 1 – Who will take part in the hearing?
Please note that if you select ‘No’ in response to the following question, we may make a decision on the application for review made by that person without taking any further action to allow or enable that person to appear before us.
Will you take part in the hearing scheduled for 25 May 2018?
(Please indicate ‘Yes’ or ‘No’) for each review applicant.)
Yes No
☒ ☐ DHQ18
☒ ☐ DHR18
☐ ☒ DHS18
It is open to infer, and I do, that the hearing information form sent to the applicants in respect of their attendance at the first hearing, bore a similar section with a “tick box” response as set out in the preceding paragraph (save for the hearing date being different), even if the applicants did not complete or return it to the Tribunal.
A separate Part on the next page of the “Response to hearing invitation form” provides:
Part 3 – Witnesses
You may request that we take oral evidence from a person or persons. If you make such a request, we will consider your request carefully but may decide that it is not necessary to take oral evidence from a person you nominate.
Unless you advise us otherwise we will assume that you will make arrangements for any witness to be unavailable to give evidence.
The substance of the “Witnesses” section of the “Response to hearing invitation form” can be seen to substantively reflect the requirements of s 426 of the Act.
Importantly, while no doubt desirable that applicants do return the “Response to hearing information form”, failure to respond to the Tribunal’s s 425A Notice does not void applicant entitlement to attend the hearing. That is in contrast to other sections of the Act which vitiate their right to a hearing: see s 424C of the Act. In fact, the only three ways in which the applicants could have lost or waived their right to appear before the Tribunal at hearing were:
(a)by failing to respond to a validly sent s 424 invitation[6] within the period prescribed: see s 425(2)(c)[7];
(b)by one or more of the applicants consenting to the Tribunal deciding the review without them appearing before it, which it seems might have been done by ticking the ‘No’ box in the “Response to hearing information form” see above[8]: see s 425(2)(b); or
(c)by failing to attend the hearing: see s 426A.
[6] The request for information sent to the applicants on 1 March 2018 (CB 279) was not a valid invitation because it failed to allow the applicants the prescribed period in which to respond by reference to s 424B and reg 4.35(3) of the Migration Regulations 1994 (Cth) which required that the applicants be allowed 14 days for the giving of their information, being 14 days from the date on which they were taken to receive the invitation which, having been sent by email was the same date as which it was sent pursuant to s 441C(5) of the Act.
[7] Read in conjunction with ss 424 and 424C of the Act
[8] See [57] above
On the material before the Court, none of the circumstances set out at [60] above applied to the second respondent. In addition, and contrary to the Tribunal’s assertion at [100] of its decision and also said to the applicants at the first hearing[9] the fact that an applicant does not make protection claims of their own but instead relies on the claims of a family member, does nothing, in and of itself, to vitiate their right under s 425 of the Act to give evidence and present arguments. That being so, for as long as she was present at the first hearing to “appear” before the Tribunal (or to use the nomenclature of the “Response to hearing information form”, to “take part in” the hearing), the second applicant had not (in advance of the first hearing) expressed a desire to not give evidence, much less had she waived that right. There is no suggestion that the second applicant had consented to the Tribunal deciding the review without her appearing before it, imbued as that concept was with the possibility that attendance also involves giving evidence.
[9] See Transcript excerpt at [70] below
Accordingly, to the extent that the first respondent suggests that the second applicant had not positively asserted her right, or more dubiously had waived the opportunity to give evidence before the Tribunal by failing to respond to the Tribunal’s hearing invitation by returning the “Reponse to hearing information form”, I reject that argument.
There was also a suggestion that the applicants were represented at the hearing by their migration agent. It is true that he was present. However, at hearing, Counsel for the applicants highlighted a curious anomaly in the way Part 7 applies in this regard. Section 427(6) of the Act, which sets out the powers of the Tribunal in relation to Part 7, provides as follows:
(6) A person appearing before the Tribunal to give evidence is not entitled:
(a) to be represented before the Tribunal by any other person; or
(b) to examine or cross-examine any other person appearing before the Tribunal to give evidence.
Within Part 5 there are the following sections:
366A Applicant may be assisted by another person while appearing before Tribunal
(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.
(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
366B Other persons not to be assisted or represented while appearing before Tribunal
(1) A person, other than the applicant, is not entitled, while appearing before the Tribunal, to:
(a) have another person present to assist him or her; or
(b) be represented by another person.
(2) This section does not affect the entitlement of the person to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
…
366D Examination and cross-examination not permitted
A person is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence.
In respect of Part 5 reviews, there is no direct analogue within s 363 (being the relevant section setting out the powers of the Tribunal) to s 427(6). However, it seems that s 366B(1) and 366D combine to be substantively identical to s 427(6). That being so, and noting that s 427(6) does not appear to apply to applicants themselves, but rather only to third party witnesses, it is an unusual omission from the Part 7 regime that protection visa applicants are not entitled to have a representative (or “assistant” as that role is described in s 366A of the Act for Part 5 reviews).
This discrepancy has not been extensively considered. However, in SZOVP v Minister for Immigration and Anor (No.2) [2011] FMCA 442 (SZOVP), Driver FM (as his Honour then was) at [69] to [72] said the following:
A greater involvement of legal practitioners in the visa application and review process is needed
69. I have previously recommended that protection visa applications should be required to be submitted with the assistance of a registered migration agent who is a legal practitioner. It is an unfortunate fact that many protection visa applications are submitted with the assistance of agents (both registered and unregistered) who do not have an adequate understanding of their professional obligations. While that situation continues decision makers will continue to be burdened by applications improperly framed and by applicants not properly represented.
70. It is noteworthy, in this regard, that the Migration Act itself discriminates against protection visa applicants. Section 427(6) provides that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal by any other person. In contrast, s 366A provides, in relation to matters before the Migration Review Tribunal (“the MRT”):
(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.
(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.
(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.
(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.
71. The policy reason for these restrictions on representation may have something to do with a concern that representation, especially representation by a legal practitioner, may in some way complicate or prolong hearings. That is not the experience of this court, which welcomes the assistance provided by legal practitioners. In my view, an administrative decision maker, acting lawfully, has nothing to fear from the involvement of competent and experienced legal practitioners who are well aware of their professional obligations. Indeed, the Tribunal would have good reason to be concerned about the current restrictions on representation. In the absence of the assistance of independent legal practitioners, the Tribunal is left to attempt to find its way through its highly prescriptive procedural code based on the experience of the presiding member, or, especially where the presiding member is not legally qualified, the Tribunal is left inappropriately dependent upon its own in house legal advice.
72. Further, the reason why protection visa applicants are treated differently from other visa applicants in the legislation in relation to representation at hearings is not clear to me. The distinction may have something to do with s 363A of the Migration Act which is peculiar to proceedings in the MRT. The effect of that provision would seem to be to prevent the MRT from permitting any assistance or representation at MRT hearings except as is expressly provided by s 366A. These are very strange provisions and I suspect that they are not being complied with. If there is no sound policy reason for the restrictions on representation then they should be removed.
It seems that in the 12 years since his Honour made the aforementioned observations in SZOVP, the restrictions on representation have not been removed. In any event, as a formality, it should be observed that the applicants’ representative did not appear to have any right to assist, let alone formally represent them at hearing within the Part 7 review regime. The degree to which this was observed by the Tribunal is, of course, another matter.
The second aspect which arises in the context of the submission that the applicants were represented at the hearing, and that no issue was taken by him in relation to the second applicant giving evidence, is that of waiver. The concept of waiver is usually considered in relation to bias, being the context in which it is so often applied (at least in an administrative law context). The prohibition derives from the broader doctrine of estoppel by election and was most notably explored in Vakauta v Kelly (1989) 167 CLR 568 (Vakuata). Relevant to the present circumstances, in Vakauta at [588], Toohey J described the principle as preventing a litigant from taking up two inconsistent positions. In the cases considered by Dawson J in Vakuata, one aspect was consistent. Namely that a party was properly informed and yet knowingly waived the objection, from the observations that:
(a)“the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, three will be little danger of the appearance of injustice…”: see Vakuata at [577];
(b)that in Re McCrory; Ex parte Rivett (1895) 21 VLR 3 per Hood J at 6: “A litigant who knows (as the applicant did here) that there may be some objection…is bound to mention it at once”: see Vakuata at [578];
(c)that in Re Alley, Ex parte Australian Building Construction Employees’ & Builders Labourers’ Federation (1985) 64 ALR 6 at 7 the High Court said: “In some cases it has been held that a party entitled to object to the participation of an adjudicator, disqualified by interest or likelihood of bias, will be deemed to have waived that entitlement if, being fully aware of the circumstances, he fails to object as soon as is reasonably practicable ”: see Vakuata at [578]; and
(d)“In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it”: see Vakuata at [579].
This concept of a party needing to be knowingly informed of their rights, such that they can be taken to have made an election between two inconsistent rights, was recently adopted (in obiter) in a migration context in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 per Jackson J at [93] to [100] where at [99] his Honour said:
I would respectfully follow the account of the underlying principle of waiver for bias offered by Toohey J in Vakauta v Kelly at 588 , namely that it is founded on an election between two inconsistent rights. In my view, the proper application of that doctrine requires that the person said to make the election has a free and fair choice between those rights. If, on an objective assessment of the situation, it is apparent that the person has been compelled to take one course and not another, it cannot be said in any meaningful way that the person has elected between them.
The authorities make clear that the need to make an objection or otherwise be taken to have waived the right to do so, is not an instantaneous requirement. Rather, an objection should be made as reasonably practicable[10] and, depending on the circumstances, a party may be entitled to a reasonable opportunity to obtain transcript, take advice and consider their options: see MBJY (supra) per Jackson J at [94] citing John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79 per Hodgson, Ipp JJA and Handley AJA at [25] to [27]. In the present case, the applicants raised an objection. They did so in a manner which in the circumstances of this case I find to be sufficiently timely, by reference to the requests from their representative on or about 3 to 4 May 2018.
[10] Alley, Re; Ex parte ABCE & BLF (1985) 64 ALR 6 at 7
This leads to a need to consider what information the applicants, but in particular the second applicant, was given at the hearing such that an assessment can be made about whether or not she was compelled to take one course over another such that she could genuinely be taken to have elected to waive the right to:
(a)give evidence; and
(b)stay in the hearing room, which would result in assuming the limitations doing so would carry with it.
In considering the Transcript of the Tribunal hearing in this matter I have had regard to the caution required. It is well-established that having regard to a transcript of the Tribunal hearing cannot be employed to supplement and expand the Tribunal’s stated reasons for exercising the power in the way it did: see AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 at [58] per Tracey, Mortimer and Charlesworth JJ (citing in turn Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 per Mortimer J at [33] and Kelly v Australian Postal Corporation (2015) 67 AAR 359 per Griffiths J at [51] to [53]); see also Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [95] per Rares J. In respect of this ground, I have consulted the Transcript for the purposes of understanding what information the applicants were given (or not given) in the context of the hearing procedures and any deviation therefrom. This is different than supplementing the Tribunal’s reasons for decision.

At the outset of the hearing, immediately upon entering the hearing room, the Tribunal member commenced with the following:
Okay. We just – so, we’ve got the Applicant, the second-named Applicant, so, I’ll swear both of you in…[11]
[11] Annexure “JEC-1” to the Transcript Affidavit at T1.8 to 1.9
The reference to “swearing in” each of the first and second applicants, is to be understood in a generic way as the descriptor for having them take an oath or affirmation, noting that they each elected to take an affirmation. This also suggests that the Tribunal member had each of the first and second applicant take their affirmations before making any decision about whether to hear from them. The Tribunal member continued, addressing the witness, Mr R,[12] in the following exchange (anonymisation added):
[12] The Transcript records Mr R’s name incorrectly, however it was not in dispute at hearing that this was a reference to Mr R.
MEMBER: And, you are here in ---
SUPPORT: I am Mr [R]…[R]
MEMBER: Yeah.
SUPPORT: I am a lawyer and the employer of the Applicant’s wife
MEMBER: Yep.
SUPPORT: And, I’m here to support.
MEMBER: Okay. So you’re not providing any ---
SUPPORT: If…required, I can provide evidence. I’m more than happy to provide evidence.
MEMBER: Evidence about?
SUPPORT: [DHR18]’s good character and…Yeah. And, evidence as to what I know of the Applicants in the application.
MEMBER: Do you have any first-hand knowledge of their circumstances in Iran?
SUPPORT: No, I don’t.
MEMBER: So, I won’t need to question you, or to swear you in as a witness.[13] So, during it I’ll ask you to wait outside. If you’re here as a support person that’s fine, but you’re not normally inside the Tribunal room. And, if you’re here as a character witness I’ve already got the character – the written character evidence, so I – given I’m not going to [sic] to take any questions from you, I’m not – as far as I’m concerned, I’m not going to question you, so it’s up to you whether you wish to stay or – or to leave.
SUPPORT: I’ll stay. Thank you. I’ll …stay outside, if that’s ---
MEMBER: Yeah, stay outside. That’s fine.
…
MEMBER: Just – just wait there, and you and the second-named Applicant can leave at the – after we’ve sworn people in. Okay? No worries. Just wait there until ---
…
MEMBER: No, you wait there until we’re finished. Okay.[14]
[13] See [74] above as the concept of “swearing in”
[14] Annexure “JEC-1” to the Transcript Affidavit at T1.9 to 2.16
It merits observation at this point that, firstly, the Tribunal member did not give the support person a choice of giving evidence (despite the fact that the Tribunal clearly intended to consider other character material which had been provided in writing),[15] but more unusually, to the extent there was an option of whether Mr R, in his capacity as a support person, would stay in the room, that election was offered to him at that juncture and not in fact to the applicants, whose review it was, in particular having regard to s 429 of the Act which requires that the hearing must be in private. What the exchange set out in the preceding paragraph also indicates is that, at least at that juncture, the Tribunal member intended to have the second applicant wait outside with Mr R, once she had been affirmed.
[15] Although noting that because the applicants had not complied with s 426(2), the Tribunal was not required to even consider whether to allow Mr R to give evidence, although this was not a basis relied on by the Tribunal
The Transcript records that after the affirmation of the first and second applicants the Tribunal member addressed them both generally about the material he had read to date, in the midst of which he stated:
During the hearing I will ask you some questions about the information given previously.[16]
and otherwise explained upon which bases the Tribunal would be required to be satisfied in order to made a different decision than the delegate in respect of the refugee and complementary protection criteria. The Tribunal member then asked if there were any questions about those criteria, to which the first applicant responded “no” before the following exchange took place:
MEMBER: Can I just ask, do you rely solely on your husband’s claims, or do you have any claims of your own?
APPLICANT 2: It is solely on my husband’s claim.
MEMBER: Okay. That being the case, I am happy for you to stay here during the hearing. And, if everybody is in agreeance, I’m happy for you[17] to stay as well, rather than force you out here. But, is – is everybody else happy for him[18] to be here?
APPLICANT 1: Yes.
MEMBER: No worries. Okay. During the hearing maintain eye contact with me at all times. It’s very natural just to answer to the interpreter, but, just ignore his presence. And, when you answer questions, or when you given evidence, try and break your sentences up, similar to the way I’ve been doing. It just makes it easier for the interpreter and more accurate.
I’m now going to discuss your claims with you…
[16] Annexure “JEC-1” to the Transcript Affidavit at T3.12 to 3.13
[17] Presumably a reference to Mr R
[18] Ibid
What can be seen from the foregoing exchange is that second applicant was not asked whether she wished to give evidence. The Tribunal member did not expressly explain to the applicants that allowing the second applicant to stay in the room was also a shorthand way of saying that she would not be giving evidence, nor what the potential consequences of staying might mean if (either later in the first hearing, or by requesting a second hearing as actually transpired) she exercised her right to give evidence and present arguments.
By inviting the applicants to the second hearing, the procedural unfairness to them (and particularly the second applicant) referred to in [71(a)] might have been cured, but this did not cure the aspect set out at [71(b)] above and, nor could it. Nothing said to the applicants at the first hearing (nor at the second) enabled either of them (nor with their representative) to make an informed objection as to the procedure that was to take place.
While not raised by the applicants in the instant case, there remains a possibility that the Tribunal could have proceeded to put to the applicants (pursuant to s 424A of the Act (including by use of the s 424AA mechanism) the fact that a reason or part of its reason for affirming the decision was that the second applicant’s evidence could not be given much weight because she was aware of all of her husband’s claims and of the Tribunal’s concerns about them, as a consequence of the first hearing and the post-hearing submissions. However, in my view, while that might have complied with s 424A such that the applicants would have the opportunity to comment upon that information, commenting upon on it would only have been in aid of mitigating the Tribunal’s concerns and seeking to dissuade the Tribunal from using that information in an adverse manner. The fact is, that by conducting the review in the manner in which it did, the adverse information about which the applicants would have been asked to comment consisted of a detrimental situation of the Tribunal’s own making. The damage had already been done and could not be neutralised by an opportunity to simply comment upon it.
Lastly, to the extent that the first respondent says that there was, in any event, a separate and independent basis upon which the second respondent’s evidence was undermined, namely that she was not an objective source, I reject this. I accept the applicants’ submission that the findings in the last sentence of [100] are inextricably linked. The Tribunal found that the second applicant was not an objective source and was aware of every part of her husband’s claims and the Tribunal’s concerns, because of her having been at the first hearing. This was, in essence, a finding that the second applicant was able to give her evidence in a way which corroborated her husband, but also potentially met the concerns of the Tribunal such that her evidence was not objective. I am not persuaded that in the circumstances of the present case, the final sentence of [100] of the Tribunal’s decision is separate and independent basis for its finding or which can cure the procedural unfairness caused by the Tribunal’s failure to comply with s 425 of the Act.
The Act requires that the Tribunal have the applicants appear to give evidence and present arguments. There are only limited circumstances which vitiate that requirement, none of which applied in the instant case. The Tribunal, which is required to act in accordance with substantial justice and also apply the procedures which exhaust the parameters of its natural justice obligations “in a way that is fair and just”.[19] If deviating from those procedures in a way other than prescribed by the Act,[20] the Tribunal must fully inform an applicant of the rights which will be curtailed by that deviation. A failure to do so, which results in an applicant being given less than a meaningful hearing opportunity and (on an objective assessment) compels an applicant to accede to a deviation of fair procedure such that they cannot to be said to do so knowingly, is a failure to accord natural justice within the meaning of Division 4 of Part 7.
[19] Section 422B(3)
[20] Cf s 425(2)(b)
In the present case the Tribunal failed to comply with s 425 of the Act and the review miscarried. I find the failure to comply with s 425 to be an error. It was plainly material in the sense that had the Tribunal not so proceeded, realistically this could have resulted in a different decision being made. Accordingly, I find the error to be jurisdictional and the applicants are entitled to the relief sought. I will so order.
Ground 3
By this ground the applicants alleged the Tribunal’s decision was based on a critical finding which lacked any logical foundation. The particulars to this ground relate to the incident involving the applicant, which became the catalyst for the applicants’ eventual departure from Iran. In essence, the applicant claimed[21] to be a photojournalist and that he had been covering a protest in Tehran on 4 November 2009. The applicant claimed that on the day in question he had with him two cameras, a large professional camera in a backpack and a small compact camera which was the one he was actually using to take photos. The applicant said in his initial statement of claims[22] that he knew that security forces would arrest him if they saw his professional camera. The applicant claimed that he was taking photographs when “a flood” of people who were escaping from security forces rushed towards him. The applicant ran to an alleyway which soon became blocked at both ends. He claimed that he immediately tossed his compact camera into the garage of a house and started to run towards Hafte Tir Square but that security force motorcyclists had seen he had a camera and stopped him. He was beaten and harassed and then taken into detention for nearly 18 days.
[21] CB 141
[22] Ibid
The applicants say that by its rejection of the first applicant’s account at [85] to [87] of the decision, the Tribunal found applicant’s account of his arrest to be implausible, and that the bases for rejecting it lacked a logical foundation.
Before making its specific findings about this incident the applicants point to this significant finding of the Tribunal at [77] (CB 394):
77. I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he lied to Commonwealth officials and fabricated his claims in order to be granted a protection visa.
The findings of the Tribunal sought to be impugned by this ground are as follows (CB 395):
85. I do not accept that the applicant ever attended a protest, nor that he was detained during a protest he was photographing in late 2009. To begin with, it relies on his credibility which I find is lacking. The story is implausible given that he claims he ran into a narrow lane he was faced by special forces security personnel on motorbikes, and was able to throw away the camera on which he had allegedly taken incriminating photographs of the protests without being seen by the police.
86. I do not accept that he would be able to undertake such an action in full view of the police without it being noticed. He was also vague in explaining how this fortuitous occurrence came about; variously claiming that he heard the sound of motorbikes rather than saw them, that there was a fair distance between them and the police and that the police road large noisy motorbikes.
87. Other anomalies raise questions in the Tribunal’s mind as to the veracity of the story; despite police on motorbikes facing protestors on foot in a narrow laneway, the applicant was the only one captured. And despite being special forces security personnel (and therefore presumably well trained), nobody appeared to search the area where the applicant was detained to check that he hadn’t gotten rid of any incriminating material.
The Tribunal considered it “implausible” that the applicant would be able to throw away the smaller camera without being seen by the security forces, when he was “in full view” of them. The Tribunal found it anomalous that:
…despite police on motorbikes facing protestors on foot in a narrow laneway, the applicant was the only one captured…
Yet, the applicants point out that the applicant did not make that claim. Rather, by his statutory declaration (CB 263 at [31]) the applicant said he was and taken away, “along with some other people”, that they were all taken to a sports centre where security forces had them sitting together but all facing a wall, before they were divided and taken to an unknown location
(CB 264 at [33] to [34]).
At [88] the Tribunal also considered it to be anomalous that nobody searched the area where the applicant had been detained, to check that he hadn’t disposed of incriminating material. Aside from noting that there was no evidence to suggest that such a search had not taken place, the applicants ask rhetorically, why was this so anomalous? The applicants also say that the Tribunal took a similarly inflexible approach to the applicant’s claim that an arrest warrant had been issued in respect of him, and that his home had been visited by two security force personnel soon after his arrival in Australia.
The Tribunal referred to its previous adverse credibility finding that the applicant had “lied to Commonwealth officials” and then referred to what it described (seemingly sarcastically) at [89] as (emphasis added):
…the fortuitous timing of the security authorities’ alleged attempt to arrest the applicant, occurring as did just a few weeks after arriving in Australia. Not only was this timing extremely coincidental given he learnt of his friend’s arrest warrant being issued in February 2013...
The applicants say this reasoning makes no logical sense and relies on the recent developing case law regarding jurisdictional error constituted by credibility findings based on unwarranted assumptions as to plausibility: see SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463 per Allsop CJ at [40].[23]
[23] See also W148/00A v Minister for Immigrationand Multicultural Affairs (2001) 185 ALR 703 at [37] per Lee Tamberlin and RD Nicholson JJ and [67] and Republic of Nauru v WET040 No 2 (2018) 362 ALR 235 per Gageler, Nettle and Edelman JJ at [33] and [35]
The applicants say that in the present case the Tribunal formulated its own view of what should have happened on that day in November 2009 and afterwards, so that any deviation by the applicant from this formula was to be regarded as a fabrication of the entire incident.
The first respondent submitted that the process of reasoning in which the Tribunal engaged was open to it on the material before it because, when the Tribunal’s reasons are read fairly and as a whole, it relied on a number of significant matters, cumulatively, to reject the applicant’s factual claims, referring to the adverse credibility finding at [77] (see [85] above) because:
(a)the Tribunal found that documentary evidence provided by the applicant did not support his claim to be a journalist or photojournalist (CB 394 to 395 at [80] to [82]);
(b)none of the pieces of work provided by the applicant were political in nature, which called into question his claim to have photographed political protests (CB 395 at [82]);
(c)the applicants lengthy delay in leaving Iran and their willingness to wait for approval for a 457 visa to Australia (CB 396 at [92]); and
(d)the applicants’ delay in applying for protection visas after arriving in Australia (CB 396 at [92]).
The first respondent says that in circumstances where the Tribunal found that the first applicant was not a reliable, credible, or truthful witness, it was reasonably open to it to also find that he had fabricated his claims.
In relation to the plausibility of the applicant’s account of the arrest, the first respondent says that the Tribunal was under no obligation to uncritically accept any (and all) claims made by the applicant, and there is no absence of a logical connection between the evidence and reasons of the Tribunal, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ. The first respondent says that the applicants’ challenge to the Tribunal’s remark at [86] that the applicant was “in full view” of the security forces when he allegedly threw away his small camera cannot succeed in light of the evidence which included that the laneway was narrow, that he was surrounded when he ran into the lane and that and he threw the camera away when he was arrested (T20.30). Having regard to this evidence, the first respondent says that it was reasonably open to the Tribunal to state that the applicant was in full view of the police when this alleged event took place.
Similarly, the first respondent says that the applicant’s challenge to the Tribunal’s finding at [87] that he “was the only one captured” cannot succeed having regard to the evidence. The applicant’s evidence at the first Tribunal hearing was that there was “one or two other people” (T18.05) with the applicant when he ran into the narrow lane, but that the others had “managed to run away” and that he “was alone” at the moment he was arrested T18.06-07).
The first respondent says that it was open to the Tribunal to consider it anomalous that security forces would not have also searched the area where the applicant was detained to check whether he had got rid of any incriminating material, in circumstances where the applicant claimed to have then been detained for a period of 18 days during which the authorities allegedly searched his home and workplace. The first respondent says that, overall, this ground goes no higher than to express the applicants’ disagreement with the Tribunal’s findings and thereby seek impermissible merits review.
Each of the parties relies on the decision BEL16 v Minister for Home Affairs (2019) 167 ALD 295 per Beach J. In that case his Honour said the following at [16].
First, it is not in doubt that in assessing credibility, a Tribunal may rely upon inconsistencies properly so-called, but the Tribunal must reason carefully and fairly to avoid any undue propensity to scepticism. Indeed, an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:
(a) Commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.
(b) Engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.
(c) Viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority. In this respect, inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability. Indeed, and conversely, too much detail and consistency may be “merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative” in the words of WS Gilbert’s Pooh-Bah.
(d) Viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal or, conversely, discounting documentary material put forward by the applicant without good reason.

It is not for this Court to undertake its own fact finding exercise or assess whether it would have engaged in the exercise in the same fashion, or made the same findings as the Tribunal. Rather, the question is whether it was open to the Tribunal to engage in the process of reasoning it did: see BEL16 (supra) per Beach J at [17].
In BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717 at [29] to [34] I considered the various authorities regarding unwarranted assumptions grounding credibility findings in a way which gives rise to error, as follows:
29. The applicant placed reliance on the decision of SZHYH v Minister for Immigration & Border Protection (No 3) (2019) 165 ALD 463 per Allsop CJ In SZHYH the Tribunal made findings about the manner in which the applicant had left his country of origin. Amongst those findings was that, had the applicant been released on bail, the authorities would have required him to surrender his passport despite there being no independent country information before the Tribunal to that effect. Those findings went to the Tribunal’s overall view of the applicant’s credibility. On appeal, the Court found at [46]:
The Tribunal was bringing (without any apparent basis in expressed expertise country information or material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
30. Additionally in SZHYH, the Tribunal also found it to be inherently unlikely that the authorities would have waited for a fortnight before arresting the applicant for his participation in a protest. Having regard to those matters the Court found the following at [53] and [55]:
53. When one looks at the fragility of all the findings of inconsistency one cannot conclude other than that the Tribunal has not engaged with its task reasonably, in the sense discussed in Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1;329 ALR 491; [2016] FCAFC 11 at [5] and [12] . How possibly could a two week delay in arrest by the PSB in a Chinese city, after demonstrations be seen as inherently unlikely? If bribery took place, how is leaving China without difficulty unbelievable? The so-called inconsistencies about the bribery do not withstand analysis when looked at in the light of previous accounts earlier summarised by a delegate…
…
55. Looking at the totality of the Tribunal’s decision and so many of the stages of its reasoning process on such an important question as the truthfulness of the appellant being flawed, it follows that the decision was legally unreasonable.
31. Not long before SZHYH was delivered, two decisions of the Full Federal Court considered Tribunal decisions in which credibility findings of the Tribunal were found to be unreasonable or illogical on the basis that the decision-maker had made unwarranted assumptions along the way to making ultimately adverse assessments of the applicants’ respective credibility.
32. In DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175 the applicant’s protection claims were based on his homosexuality, which he said gave rise to a well-founded fear of persecution. The Tribunal relied upon there being a lack of independent eye-witnesses to the applicant’s activities as a homosexual and relied, inter alia, on an unwarranted assumption that the applicant would have a larger number of previous sexual relationships if he were genuinely homosexual: see DAO16 at [45].
33. In BZD17 v Minister for Immigration & Border Protection (2018) 263 FCR 292 the Full Federal Court considered a decision of a Tribunal which had found that the applicant’s claim to have been brutally assaulted was not credible because there had not been posts on social media about it. This was despite the fact that the Tribunal had information before it which said that the applicant’s country of origin had strict social media controls. The Full Federal Court stated at [36]:
Similarly, in Lafu v Minister for Immigration & Citizenship (2009) 112 ALD 1 at [48] –[49] , the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration & Citizenship (2012) 289 ALR 541 , the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: at [19]–[20] (Flick and Jagot JJ) and at [38] (Yates J). Similarly, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration & Border Protection (201 5) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration & Citizenship (2009) 181 FCR 113 at [34] –[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).
34. The reference to SZVAP (which considered WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 676 at [54]) was another decision which considered unwarranted assumptions in the context of adverse credibility findings.
Of course, each case will turn upon its own facts. In relation to the present case I am of the view that the Tribunal did go beyond the limits of proper and logical fact finding. A fair and contextual reading of the Tribunal’s decision, but in particular in relation to the credibility of the applicant, including that he lied to Commonwealth officials and that so many aspects of his evidence were implausible and fabricated, was an extremely serious finding which ought not to have been made lightly.
In EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 per Stewart J at [148] his Honour said:
When one then turns to the balance of the Authority’s findings and considers their totality, a deeper flaw than those which the appellant particularised is revealed. The apparent ease and willingness with which the Authority found each and every one of the appellant’s claims to be fabricated, the inconsistencies which it must be taken to have considered highly significant without any reasoning, and the evidence which it either ignored, overlooked or considered to be so obviously damaging to the appellant such that it provided no detailed reasoning, bespeaks a process of reasoning that is highly unreasonable and that can only be described as what the learned authors of The Law of Refugee Status (at 138) call a “quest to disbelieve”.
I agree with the characterisation advanced by Counsel for the applicants that the manner in which the Tribunal reasoned in relation to the first applicant’s account of the 2009 arrest and detention, exhibited a similar quest to disbelieve him, which is further supported by the sarcastic language of incredulity with which the Tribunal recounted the first applicant’s version of events (see [90] above).A finding that an alleged event is “implausible” is ordinarily a finding that it is inherently unlikely to have occurred: Republic of Nauru v WET040 (No 2) (supra) at [55] to [56] per Gageler, Nettle and Edelman JJ.
There was no material before the Tribunal which grounded the finding about the methods employed by Iranian security forces, nor the geography of the area in which the applicant was arrested (to the extent that the Tribunal apparently considered this to be significant) which, as a matter of common sense or logic, grounded the findings the Tribunal made at [85] to [87]. There is also nothing before the Court to suggest that the Tribunal drew on personal or specialised knowledge about those matters: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21]).
In relation to the findings the Tribunal made with which this ground specifically takes issue:
(a)I agree with the submissions of the applicant that there were a multitude of explanations as to why the security forces did not appear to see, or respond to the alleged disposal by the applicant of his compact camera;
(b)the applicant did not claim to be in “full view” of security forces at the time he disposed of the camera. “Full view” was the Tribunal’s expression. Given the evidence of the applicant that security forces would arrest him if they saw his professional camera (see [83] above) and that guards had noticed his backpack with the camera inside it and stopped him (see [9(b)] above), the reference to motorcyclists who had “seen my camera” was likely a reference to the applicant’s professional camera in a bag on his back having been seen, not evidence that the security forces had watched the applicant throw the compact camera away;
(c)there was also no evidence before the Tribunal to support the finding that the camera had not been searched for;
(d)even if it had been searched for, there were also a variety of possible explanations as to why it may not have been found, especially depending on when such a search might have taken place;
(e)a review of the applicant’s version of events from his original claims, throughout his statutory declarations does not appear to have been inherently inconsistent as to the events leading to his arrest; and
(f)the applicant did not claim to have been the only person arrested.
Given there were many possible explanations in relation to the above matters, that the Tribunal mis-recounted the applicant’s own claims as part of rejecting them and that it made adverse credibility findings based on warranted assumptions and speculation in order to reject his version of events as implausible, I am of the view that the Tribunal erred. It was not logical for the Tribunal to conclude that the applicant’s version of events was inherently unlikely to have occurred. In relation to matters of which he had first-hand knowledge (see BEL16 (supra) per Beach J at [55] and see Republic of Nauru v WET040 (No 2) (supra)) based on its own speculation about the motivations, reasons or circumstances of the security forces, absent any evidence or independent material about their practices. In all the circumstances of this case, the Tribunal’s findings which rejected the applicant’s account of events leading to his arrest brought apparent personal assumptions forward as being a critical factor to make findings of disbelief: see SZHYH (supra) per Allsop CJ at [46]. In doing so, the Tribunal committed jurisdictional error. I am of the view that this error was material and is separate than the error established in respect of ground 2.
Ground 4
This ground relates to the Tribunal’s findings relating to the alleged delay on the part of the applicants’ in seeking asylum.
At [90] to [92] the Tribunal addressed this in two ways:
90. For example, he remained in Iran until October 2014 which is not indicative of someone who feared arrest. During that time (between February 2013 and October 2014) he had a valid passport and it was open to him to escape to neighbouring countries such as Armenia or Turkey, both of which issue visas on arrival to Iranians and where he could have applied for protection. I do not accept that he didn’t go to Turkey because he had heard asylum seekers lived there in terrible conditions without result. The Tribunal is not aware of the terrible conditions in which Iranian asylum seekers exist in Turkey, nor was any country information supplied in support of such a claim.
91. Regarding Armenia, he claimed both that he had never really heard about this route and then that he had heard people had been beaten there. Again, no information to support such a claim was given and country information indicates that more than 100,000 Iranian tourists visited Armenia in 2013 which would indicate that it is welcoming to Iranians and inconsistent with the applicant’s claims that they are beaten in Armenia. It also raises concerns as to why the applicant never considered this as an escape route to seek protection.
92. Rather, their lengthy delay in leaving Iran and their willingness to wait for approval for a 457 visa to Australia is indicative of someone in no hurry to leave the country. Similarly they didn’t apply for protection for three and a half months after arriving in Australia, which again is not indicative of someone who is fleeing persecution in their home country. I have taken into account the fact that they claim they could have turned their temporary residence into a permanent residence visa but applied for protection on the advice of their migration agent. Whilst this may plausibly explain the delay it relies on the claim regarding security force interest in the first-named applicant being real which I have found not to be the case.
The first aspect of delay was in relation to not leaving Iran sooner, to go to Turkey or Armenia, to seek asylum but instead choosing to obtain s 457 visas to travel to Australia (CB 396 at [90] to [92]). The other alleged delay is the period between arriving in Australia (9 October 2014) and applying for the protection visas (20 January 2015).
By the applicant’s statutory declaration he said that said that in the lead-up to the 2013 presidential election he was aware that his choices of escape from Iran were “either to go to Europe or to Australia by boat” (CB 273 at [97]). For the purposes of this ground the applicants are prepared to assume that “Turkey and Armenia are plausibly a part of Europe”. The applicant said that he did not want to take his family to Turkey because he had heard:
(a)“many asylum seekers were living in a terrible condition in Turkey without result”; and
(b)“people had been beaten” in Armenia.
Counsel for the applicants acknowledges that this was the first applicant’s subjective appraisal of what conditions were like in those countries, which may or may not have been accurate. However, the Tribunal based its rejection of the applicants’ reluctance to seek refuge in Turkey and Armenia on its limited knowledge of the conditions in those countries, saying that it was “not aware” of terrible conditions in Turkey[24] and (by reference to country information) that more than 100,000 Iranian tourists visited Armenia in 2013[25]. The applicants say that nowhere did the Tribunal find that the applicant’s subjective appraisal was false or fabricated, simply failing instead to take account of his subjective fear of making such a journey.
[24] CB 396 at [90]
[25] CB 396 at [91]
In respect of the time between the applicants’ arrival in Australia and the almost 3 months until the Protection visa applications were lodged, the applicants say that the Tribunal accepted the applicants’ explanation for the delay of almost three months from 9 October 2014 to 23 January 2015 in applying for asylum in Australia; namely, that they had approached their migration agent in late November 2014 after learning that authorities had visited the home of the first applicant’s father. However, the Tribunal then then made a finding adverse to the applicant, based on its earlier finding that he was of no interest to the security authorities. The applicants say that the legally erroneous rejection of the applicant’s account of the November 2009 events was the basis for this finding.
The first respondent says that in relation to the explanations for why the applicants had not travelled to Turkey or Armenia, the Tribunal summarised the explanations proffered at the first Tribunal hearing in this regard at [49] to [50] (CB 390 to 391) and that, at [90], the Tribunal expressly stated that it did not accept that the applicant did not go to Turkey “because he had heard asylum seekers lived there in terrible conditions without result” and that the first applicant’s claim regarding Armenia that “he had never really heard about this route” and that “he had heard people had been beaten there” (CB 396 at [91]). The Tribunal plainly addressed the applicant’s explanations, but was unable to accept them having regard to country information before it (and the lack of country information to support the applicant’s explanations).
I agree with the first respondent that the Tribunal did not accept the applicant’s explanations for not travelling to Turkey or Armenia and was not required to make a finding that the applicant’s subjective appraisal was false or fabricated.
However, in respect of the findings as to the delay of the applicants in applying for asylum in Australia, based on the error established in ground 3, it was not open to the Tribunal to make adverse findings regarding the delay, based on its flawed approach to the finding about security forces and the first applicant not being of interest to them. By reason of that error, the Tribunal’s reasoning in relation to the delay in seeking asylum in Australia was infected and was in error also.
Ground 5
The final ground of review takes issue with the Tribunal’s findings about corroborating evidence provided by the applicants from RWB. The ground alleges that the Tribunal misconstrued this evidence and gave little weight to it, by finding that RWB “would not give the names of their sources” which was used to give the evidence little weight. The applicants say that this finding was factually erroneous because RWB in fact stated “we can not [sic]” give names of sources”. The applicants say that this rejection of important, corroborating evidence was based on a misrepresentation of what RWB had informed the Tribunal.
The first respondent contends that the Tribunal was not required to accept the evidence from RWB uncritically, and that the relative weight that the Tribunal gave to that evidence was a matter for it, citing Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Nicholson J and Peko-Wallsend Ltd (supra) at 41 per Mason J. The first respondent says that the Tribunal otherwise provided cogent reasons for the weight to be afforded to the evidence, namely that RWB was not an objective research organisation, the methodology and sourcing used by RWB for verifying and supporting claims was vague, and that RWB was unwilling to be more forthcoming regarding its methodology and sourcing having regard to the response received by the applicant (CB 397 at [98] to [99]).
Insofar as the Tribunal stated that the RWB “would not” give the names of their sources (CB 397 [99]), the first respondent contended that the Tribunal was simply summarising the RWB’s response to the applicant rather than purporting to state RWB’s response verbatim and that, in any event, regardless of whether RWB “would not” or “could not” give the names of their sources, it was open to the Tribunal to find as it did based on this evidence that the RWB was unwilling to be more forthcoming regarding its methodology and sources, as it did (CB 397 at [99]). In this latter regard, I agree. Even if the Tribunal’s factual error in the nuanced distinction between whether RWB could not or would not disclose its sources, it was not jurisdictional.
Accordingly, ground 5 is not made out.
Conclusion
The applicants have been successful in establishing the errors alleged in grounds 2, 3 and (consequent on the error in ground 3), part of ground 4. The writs sought must issue and I will so order.

I will hear the parties as to costs.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 8 March 2023

File number(s):	SYG 1766 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	8 March 2023
Catchwords:	MIGRATION – Failure of Tribunal to comply with s 425 of the Migration Act – Tribunal curtailed right of applicant wife to give evidence and allowed her to remain in hearing room during applicant husband’s evidence – request by applicants for second hearing to enable applicant wife to give evidence – Tribunal discounted weight applicant wife’s evidence as an un-objective witness and by reason of having stayed in hearing room at first hearing – no right under Part 7 of Migration Act for protection visa applicant to be represented before Tribunal – Tribunal made findings based on personal assumptions
Legislation:	Migration Act 1958 (Cth) ss 36, 359, 363, 366A, 366B, 424, 425, 429, 441C, 457 Migration Regulations 1994 (Cth)
Cases cited:	AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317 BEL16 v Minister for Home Affairs (2019) 167 ALD 295 BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79 Kelly v Australian Postal Corporation (2015) 67 AAR 359 MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 Re Alley, Ex parte Australian Building Construction Employees’ & Builders Labourers’ Federation (1985) 64 ALR 6 Re McCrory; Ex parte Rivett (1895) 21 VLR 3 SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463 SZOVP v Minister for Immigration and Anor (No.2) [2011] FMCA 442 SZQBN v Minister for Immigration and Border Protection (2014) 226 FCR 68 Vakauta v Kelly (1989) 167 CLR 568
Division:	Division 2 General Federal Law
Number of paragraphs:	121
Date of hearing:	28 September 2022
Place:	Sydney
Counsel for the Applicants:	Mr N Poynder (direct access)
Counsel for the Respondents:	Ms N Maddocks
Solicitor for the Respondents:	Sparke Helmore

SYG 1766 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DHQ18 First Applicant DHR18 Second Applicant DHS18 Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	8 March 2023