SZQSP v Minister for Immigration & Anor

[2012] FMCA 890

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQSP v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 890

MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether failure to comply with s.424A – whether failure to consider an integer of the claim – interpretation at the Tribunal hearing – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 424A, 424AA, 425, 427, 476, 481

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27
Carlos v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 183 ALR 719
SZJBD v Minister for Immigration & Citizenship and Anor [2009] FCAFC 106; (2009) 179 FCR 109
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908
Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344; (2000) 97 FCR 336
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214
Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
Browne v Dunn (1893) 6 R 67 (HL)
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
ReMinister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SZBEL  v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
SZJUB V Minister for Immigration & Citizenship [2007] FCA 1486
SZIMM v Minister for Immigration & Anor [2008] FMCA 34
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZOOR v Minister for Immigration& Anor [2012] FCAFC 58
Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723
Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188

Applicant: SZQSP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2274 of 2011

Judgment of: Nicholls FM

Hearing dates: 27 February, 19 March, 30 March and 13 June 2012

Date of Last Submission: 13 June 2012

Delivered at: Sydney

Delivered on: 2 October 2012

REPRESENTATION

Counsel for the Applicant Mr P Lott

Solicitors for the Applicant Surry Partners Lawyers

Appearing for the Respondents: Ms M Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 4 October 2011, amended on 30 November 2011 and further amended on 22 March 2012, is dismissed.

2. The applicant pay the first respondent’s costs, set in the amount of $

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2274 of 2011

SZQSP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 4 October 2011, amended on 30 November 2011 and further amended on 22 March 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“The Tribunal”), made on 30 August 2011, to affirm the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Iran. He arrived in Australia on 6/7 June 2011 without valid travel documents (See Court Book – “CB” – CB 1, CB 3 and CB 15).

2. By covering letter dated 20 July 2011, the applicant applied for a protection visa (CB 3 to CB 27). He was assisted in preparing his application by a solicitor, who was also appointed as his representative (CB 29 to CB 32).

Claims to Protection

1. Attached to that application was a statement setting out the applicant’s claims to protection (CB 34 to CB 36), namely that:

   1)The applicant was born in Iran and was a Muslim of Farsi ethnicity ([1] at CB 34).

   2)In 2009 the applicant campaigned for “Mir Hossein Mousavi” in the presidential elections, including through the distribution of leaflets and assisting in the organisation of political meetings ([6] at CB 34).

   3)Following the election of Mir Hossein Mousavi’s opponent there were numerous protests in Tehran. On 8 July 2009 the applicant was present at one such protest, along with four “friends”. One of his friend’s mobile phones contained pictures of the applicant at various protests, and the friend had intended to distribute those images to the foreign press.

   4)The applicant and another friend were walking together when their other friends were attacked by the Basij (a religious militia). He and the friend had run away from that area ([6] – [7] at CB 34).

   5)Following that incident, the applicant moved around from place to place. Ultimately he settled in a village with one of his friend’s relatives. He remained there for “one year and eight months” ([8] at CB 34 to [9] at CB 35).

   6)The applicant was told, through a friend, that his father had been questioned “four times” about his whereabouts ([9] at CB 35). The applicant was also told, by that same friend, that his father thought his “life would be in danger” if he remained in Iran, and that the applicant’s friends who had attended the protest with him remained imprisoned ([11] at CB 35). After hearing this news, the applicant left Iran “illegally” ([12] – [14] at CB 35).

   7)If returned to Iran he would be arrested ([15] at CB 35).

The Delegate

1. The applicant was invited to attend an interview with the Minister’s delegate on 13 July 2011 (CB 114 to CB 118). The applicant attended on that date and was assisted by an interpreter in the Farsi language.

2. The applicant was notified on 27 July 2011 that his application for a protection visa had been refused (CB 120 to CB 125). The delegate was not satisfied that the applicant’s involvement in political activities in 2009 meant he had a sufficient profile that he would continue to be sought by the Iranian authorities. On that basis, the delegate found that the applicant did not face a real chance of persecution in Iran because of his past involvement in political protests (CB 138).

3. Since the applicant had not been involved in any political, or

   
   

   anti-government, activities since 2009 the delegate was not satisfied that the applicant would be involved in such activities in the future (CB 138). The delegate also found that the applicant did not face a real chance of persecution in Iran because he had departed the country illegally, nor because he had sought asylum.

The Tribunal

1. On 1 August 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 142 to CB 147). The applicant was invited to attend a hearing before the Tribunal on 24 August 2011 (CB 154 to CB 155)

2. Prior to the hearing, on 22 August 2011, the applicant’s representative provided written submissions to the Tribunal. Those submissions attached numerous documents relating to human rights in Iran (CB 159 to CB 193). They also, variously and relevantly, included the following:

   1)A statutory declaration by the applicant, declared on 19 August 2011 (CB 61 to CB 62).

   2)A still, allegedly of the applicant, taken from “YouTube” (CB 174).

   3)A relevant United Nations (“UN”) General Assembly Resolution adopted on 10 February 2011 (CB 176 to CB 180).

   4)An Amnesty International public statement, dated 9 June 2011, on the human rights abuses in Iran following the 2009 “disputed election” (CB 181 to CB 184).

   5)A “Wikipedia” article on Evin prison (CB 185 to CB 190).

   6)Two articles from the “International Campaign for Human Rights in Iran” (CB 191 to CB 193).

3. The applicant and his representative attended the hearing before the Tribunal. At that time the applicant was assisted by an interpreter in the Farsi language (CB 194 to CB 195).

4. At the hearing the applicant produced a copy of a “Summons”, which allegedly had been sent to the applicant by email the previous night (CB 197, [108] at CB 222). A translation was not available, although the interpreter was able to provide a “sight translation”. [This was acceptable to the representative and the applicant.] The interpreter indicated that the document was issued by an Iranian Court, was dated 13 June 2011, and required the applicant to attend Court on 22 June 2011 ([108] at CB 222).

5. By letter dated 30 August 2011 the applicant was notified that the Tribunal had decided to affirm the decision of the delegate (CB 201 to CB 202). The Tribunal set out its reasons in its decision record ([126] at CB 225 to [158] at CB 232). Annexed to that decision record was country information used by the Tribunal in making its decision, namely:

   1)An article from the “Christian Science Monitor” on the use of the internet by law enforcement authorities in Iran to identify protesters (CB 234 to CB 235).

   2)A “Time” magazine article, dated 9 July 2009, on the protests in Iran (CB 236 to CB 238) (“the Time article”).

   3)Updates on the protest in Iran, from the New York Times blog “The Lede”, with various accounts provided by individuals in Iran (CB 239 to CB 262) (“the Times blog”).

6. The Tribunal found the applicant to be “… deliberately vague and evasive in his evidence at the hearing …” ([130] at CB 226). The Tribunal gave examples of a number of instances of this ([131] at CB 226 to [153] at CB 231). Further, where the applicant had provided specific details the Tribunal found that those details were inconsistent with the country information to which the Tribunal had regard ([133] at CB 226).

7. The Tribunal went on to find that the applicant was not telling the truth about claimed factual events in Iran and did not accept key factual elements of the applicant’s claims as to past events and harm. The delay in the applicant leaving Iran, coupled with the above findings, meant that the Tribunal was not satisfied that the applicant had participated in political protests, nor that his friends had been arrested and remained imprisoned. The Tribunal found that the authorities had never been interested in the applicant and, as such, he had not departed Iran illegally ([154] at CB 231).

8. Noting that Iran was a “very corrupt country”, the Tribunal member placed very little weight on the Summons ([111] at CB 222 and [152] at CB 231). Further, the Tribunal member found it “difficult to accept” that the Summons would have been issued some two years after the applicant’s alleged participation in the protests ([150] at CB 230). Ultimately, the Summons was not accepted as genuine, with the Tribunal finding that the “applicant asked his family for [the Summons] in order to provide support for his claims” ([153] at CB 231).

9. While the Tribunal held that the Iranian authorities were likely to believe that the applicant had applied overseas for asylum, based on independent country information, that, “… in and of itself”, would not result in the applicant being persecuted upon return to Iran ([156] at CB 232).

10. Given these findings, the Tribunal held that the applicant did not face a real chance of persecution in Iran now or in the reasonably foreseeable future, and thus he was not someone to whom Australia owed a protection obligation ([157] – [158] at CB 232).

Before the Court

1. The matter was listed for hearing on 27 February 2012. At that time the applicant appeared in person and was assisted by an interpreter in the Farsi language. Ms M Stone appeared for the first respondent.

2. On that occasion the applicant made an application to adjourn the hearing. He put forward two arguments in support of that application:

   1)He had believed that the lawyer assigned to him under the Court’s “RRT Legal Advice Scheme” (“RRTLAS”), who had filed an amended application on his behalf, would be present to explain the grounds pleaded. In the absence of the RRTLAS lawyer he was unable to explain the grounds. If he had known that the RRTLAS lawyer would not be appearing he would have sought legal representation, and now required the opportunity to do so.

   2)One of his friends in the Villawood Immigration Detention Centre had died overnight and he was affected by this death.

3. Given that the applicant was visibly affected by his friend’s death, an adjournment was granted. The applicant was advised that during the adjourned period he could seek legal advice and representation if he desired however, on its own and in the circumstances, that reason would not have been a sufficient basis for the Court to grant the adjournment (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702).

4. On 19 March 2012 Mr P Lott of counsel appeared for the applicant and advised the Court that he was instructed by Surry Partners Lawyers, although no notice of appearance had been filed by that firm. [A notice of appearance was subsequently filed on 20 March 2012.] Ms Stone appeared again for the respondent Minister.

5. The applicant sought leave to file a further amended application and a transcript of the hearing. The respondent did not object to this request and the matter was adjourned to 30 March 2012, with orders made providing a timetable for the filing of relevant documents. In accordance with those orders a further amended application was filed on 22 March 2012.

6. On 30 March 2012, Mr Lott of counsel appeared for the applicant and Ms Stone appeared for the Minister. While Mr Lott advised the Court that the applicant’s representatives had “done their best to comply” with the orders made on the last occasion, the transcript of the Tribunal hearing that had been prepared contained some “irregularities” and the applicant sought a further adjournment.

7. The Minister indicated that he would oppose the admission of the transcript. However, on the basis that the adjourned period be used by the applicant to obtain “better evidence”, that adjournment application was consented to. Ultimately the matter was set down, again, for hearing at 1.30pm on 13 June 2012.

The Application to the Court

1. The grounds before the Court, contained in the further amended application, are as follows:

   “1. The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to comply with the requirement of section 424A of the Act.

   Particulars

   ‘The Tribunal found that the applicant was not telling the truth about his participation in a demonstration on 9 July 2009, which was a key element in his claims. In coming to this conclusion the tribunal relied on what it said were news reports that the demonstration had not begun until 5pm. The Tribunal annexes to documents to its decision, one of which (CB 236-238) is from Time magazine says nothing about when the demonstrations began (It says that they were attacked at 5pm). The other document (239-262) is a series of eyewitness accounts from apparently non-professional journalists which give partial and uncoordinated accounts of the events. Since they recount the personal experiences of the people giving the accounts they are specifically about those people, and are therefore not exempt from the operation of section 424A by para (3)(a). The Tribunal did not provide the applicant with a copy of the reports during the course of the hearing.’

   2. The Tribunal’s decision was further affected by jurisdictional error because it failed to properly consider one of the claims being made by the applicant.

   Particulars

   The Applicant claimed that he was a person who was seen in a video clip of a demonstration that had been posted on ‘You Tube’. The Tribunal stated that it had viewed the clip but did not believe it was the Applicant because it had previously asked the client if he had ever worn a beard and the Applicant had said that he had not. The person in the clip appeared to have some facial hair. The Applicant explained that his understanding of wearing a beard did not include going for a few days without shaving. The Tribunal did not distinguish between wearing a beard (the question it had asked the applicant) and not always being clean-shaven (which it mistakenly said the Applicant had denied). The Tribunal should have considered whether, if it applied Applicant’s understanding of a beard, the person in the clip could have been the Applicant. Instead it closed its mind to that possibility by insisting that, if the Applicant had said he had never worn a beard, and the amount of facial hair on the man in the clip constituted a beard in the Tribunal’s interpretation, then the man could not have been the Applicant.

   3. The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of section 425.

   Particulars

   The interpreter who assisted the Applicant and the Tribunal failed to put the full responses of the Applicant to the Tribunal, in circumstances where the failure to translate what in fact the applicant had stated in full amounted to a denial of the Applicant’s opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

The Final Hearing

1. On 13 June 2012, Mr Lott of counsel appeared for the applicant. Ms Stone appeared for the first respondent.

2. The Court had before it the further amended application, the Court Book and written submissions filed on behalf of the applicant and first respondent.

3. The applicant had also filed, and sought to rely upon, two affidavits:

   1)The affidavit of Djavid Shahafar, affirmed on 3 May 2012 and filed on 4 May 2012, which annexed a transcript (“T”) of the hearing before the Tribunal. That affidavit provided that Mr Shahafar was a holder of “a NAATI (no:24418) Accredited level 2 Farsi (Persian) language interpreter and translator and level 3 translator from English to Farsi”. (Leave was granted with no objection by the respondent.)

   2)The affidavit of the applicant, sworn on 3 May 2012 and filed on 4 May 2012, in which the applicant outlined the difficulties he had experienced with the interpreter at the Tribunal hearing. (Leave was granted with no objection by the respondent.)

Ground One

1. Ground one asserts a failure by the Tribunal to comply with the requirements of s.424A of the Act. It has two limbs. First, that the country information that the Tribunal relied on to reject the applicant’s claim that he was present at the protests in Iran provided no basis for the particulars that were put to the applicant. That is, that the Tribunal told the applicant that that Time article and the Times blog provided that the protests began at 5pm. The applicant submitted that neither of those sources stated that the protests had commenced at 5pm, nor did they allow for that inference to be drawn by the Tribunal.

1. The second limb was said to be that, given the error asserted above, the Tribunal failed to particularise the information contained in those media sources and, since it relied on that information to make a finding adverse to the applicant, the Tribunal breached its obligation under s.424A of the Act. The applicant referred the Court to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162 for the proposition that the obligation imposed by s.424A was mandatory, and that the failure to discharge that obligation amounted to jurisdictional error.

The Submissions

1. While the applicant’s written submissions in relation to ground one made reference to, and addressed, s.481 of the Act, before the Court the applicant did not press his submissions in relation to that section of the Act.

2. In response to the Minister’s submission that, in light of SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), the media reports that the Tribunal relied on were not “information” for the purposes of s.424A, the applicant asserted that SZBYR did not “cover the field” in relation to s.424A of the Act. Further, with reference to [136] (at CB 227) to [138] (at CB 228) of the Tribunal’s decision record, that the media sources clearly were “information” that the Tribunal had relied upon. The applicant took the Court to Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”), and specifically the reference therein to Carlos v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 183 ALR 719 (“Carlos”), in support of that submission.

3. Further, the applicant pressed that the information contained in those two media reports was not excluded from the Tribunal’s obligation under s.424A of the Act by the exceptions set out in s.424A(3) as the information was not about a class of “people” of whom the applicant could be said to be a member. It was the applicant’s submission that the country information made clear that there were a number of different protests occurring at different times and, in light of that, and given that there was no evidence to suggest that the applicant was at one of the reported protests at the time of the report, it could not be said that the applicant was a member of the class of “people” to whom the information related.

4. The Minister’s position was that the Time article and the Times blog did not contain in their terms a rejection, denial or undermining of the applicant’s claims. Rather, those reports merely provided details regarding the protests. It was the Tribunal’s use of that information, that is its reasoning process, that resulted in it making an adverse finding. As such, the country information, in and of itself, was not considered to be the reason, or a part of the reason, for the Tribunal affirming the delegate’s decision. Further, with reference to SZJBD v Minister for Immigration & Citizenship and Anor [2009] FCAFC 106; (2009) 179 FCR 109 (“SZJBD”), the Tribunal’s reasoning in relation to that information was not required to be put to the applicant.

5. Second, the Minister submitted that even if that country information was held to be “information” within the meaning of s.424A of the Act, the Tribunal was not required to put that information to the applicant as it fell within the exception in s.424A(3)(a) of the Act. That is, the information was about a class of persons, of whom the applicant was a member.

6. It was submitted by the Minister that the applicant’s construction of s.424A(3)(a), that is, that to fall within the exception the information must be “not specifically about the applicant” and “just about a class of person”, had been considered and rejected by Merkel and Hely JJ in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 (“NAMW”). Rather, the respondent submitted that the proper construction of s.424A(3)(a) was that information was about a class of persons provided it was not specifically about the applicant.

7. Further, and with reference to VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186 at [55] per Kenny J, the Minister submitted that the fact that the information was capable of being characterised in more than one way did not mean that it ceased to be information about a class of persons. In particular, the country information in the current case was relevant to the Tribunal’s decision because of its description of the protests, not because of the specific people to whom the articles related.

8. Finally, in relation to the applicant’s claim that the Tribunal provided “incorrect” particulars, the respondent submitted that the Tribunal’s interpretation of the country information was open to it and, in any event, even if such an error was made out it would be no more than an error of fact (with reference to NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No.2)”).

Consideration

1. I understood the applicant’s complaint to be that the Tribunal found adversely to the applicant’s credibility, particularly in relation to his own account of the demonstration on 8 July 2009. In making this finding, the Tribunal relied on certain country information. The argument is that that information should have been put to the applicant pursuant to s.424A(1) of the Act. It was not. At least not in the way contemplated in s.424A(1)(a) of the Act, in terms of particularity.

2. In the alternative, that what was put to the applicant as arising from the country information was “not correct”. That related to the Tribunal’s view of when the demonstration commenced (5pm), which was in conflict with the applicant’s evidence that it had commenced earlier and that he was present at that earlier time.

3. The applicant says that the country information did not fall within the exception contained in s.424A(3)(a) because it was about specific “other people” (eyewitness accounts of the demonstration). Further, that the Tribunal did not discharge its obligation pursuant to s.424A(1) through the “proper” use of s.424AA of the Act.

4. In the current case, I agree with the Minister’s response to the applicant’s case.

5. In considering s.424A, and what constitutes “information” for the purposes of that section, what the High Court said in SZBYR (particularly and relevantly at [17] –[18]) cannot be ignored or selectively relied upon as appears implicit, if not explicit, in the applicant’s submissions.

6. Further, the applicant’s reliance on earlier Federal Court authorities (Al Shamry, Carlos, Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 and Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344; (2000) 97 FCR 336 at [32] and for that matter SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 (“SZEEU”), although noting that the Minister in SZBYR made no attack on SZEEU) must now, with respect, be understood in light of what the High Court explained in SZBYR and relevantly, for example, at [22] of that judgment:

   “[22] Once the limited scope of s 424A is appreciated, and once the proper meaning of the word ‘reason’ in s 424A(1)(a) is discerned, the apparent need for ‘unbundling’ is correspondingly reduced. The respondent Minister’s concern about ‘minor’ or ‘unimportant’ matters engaging s 424A is largely to be resolved by the proper application of s 424A itself, not by any extra-statutory process of ‘unbundling’.”

7. The applicant did not explain how the country information in issue in the current proceedings came within the meaning of “information” as that term is used in s.424A of the Act, and in light of the explanation of its meaning provided in SZBYR.

8. There is nothing in the impugned material to suggest a “rejection, denial or undermining of” the applicant’s case (SZBYR at [18]). The eyewitness accounts, if anything, would have assisted his case. The matter of the starting time of the demonstrations (5pm per the Tribunal’s reading) is, of itself and as the Minister submits, neutral. A distinction can be drawn between that information and the use that the Tribunal made of it. That is, to find an inconsistency in the applicant’s account of the demonstrations.

9. I agree with the Minister that the use made of the information constituted the Tribunal’s reasoning process and falls outside the understanding of the term “information” as it appears in s.424A of the Act (see SZBYR at [18]). This distinction was explained in SZJBD at [104] per Buchanan J:

   “[104] I feel obliged, therefore, to exclude from the concept of information under s 424A not only the intermediate findings of fact to which I earlier referred but also any process of comparison between the applicant’s answers and the factual statements with which those answers were compared. That leaves only the factual statements themselves but, shorn of the analytical context in which they played their part, they have, as counsel for the Minister contended, no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.”

10. Even if this was not the case, the applicant’s ground does not succeed when regard is also had to the “proper” construction and understanding of s.424A(3)(a). The applicant asserts that the country information to which the Tribunal had regard dealt with a large number of different demonstrating groups and that, at best, it was not clear that the applicant was a member of those groups.

11. Before the Court it became clearer that the complaint was derived from a view of the construction of s.424A(3)(a) as being that the subsection requires “information” to be “jointly” both “not specifically about the applicant or another person” and “just about a class of person of which the applicant or other person is a member”.

12. As the Minister submits, that very construction was considered and rejected in NAMW (see in particular at [138]). Specifically, s.424A(3)(a) does not posit separate criteria but, essentially, the reference to “class of person” requires the information not to be “specifically about the applicant”. Given the double negative at s.424A(3) and s.424A(3)(a), this means that the obligation in s.424A(1) is subject to the exemption of “general” country information. That is, that it is not in personam information.

13. Before the Court two elements in particular emerged as central to the applicant’s complaint. First, given that the relevant part of the information was written by eyewitnesses, that information was the eyewitness’ own account of events. That is, it did not fall within the exception in s.424A(3)(a) of the Act. This appeared to be in reference to the Time blog: “Updates on the Protests in Iran” (CB 239 to CB 261), which included “eyewitness” accounts of events at the demonstrations in Iran at the relevant times.

14. The Tribunal referred to this at the hearing with the applicant ([99] at CB 220). It referred to that information in the context of events at the relevant demonstration, and specifically the time of the commencement of the demonstration (see at [136] at CB 227). What is clear is that the Tribunal also referred to other material which did not contain these types of “eyewitness” accounts (see [98] – [99] at CB 220 – the Times article: “‘On Tehran’s Streets: Defiance and a Crushing Response’, Time, 9 July 2009”). I did not understand the applicant (nor was it available given the nature of his attack as explained above) to take issue with any other documents or the information they contained.

15. In any event, the information in the document containing the “eyewitness” accounts, and the other documents, is information falling within the exception in s.424A(3)(a) of the Act.

16. The applicant’s second attack, developed at the hearing, is that the Tribunal was in error in inaccurately drawing from this material that the demonstration started at 5pm.

17. There are two separate answers to that complaint.

18. First, as presented, this was a challenge to the facts as found by the Tribunal. On the information before the Tribunal, it was open to it to find that the demonstration started at 5pm (see the Time article at CB 236.6 and the reference there relevant to the location where the applicant claimed to have been “… This was after 5pm” (CB 240.4). In this light, the applicant’s challenge does not rise above a request for impermissible merits review (Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

19. Second, even if some error was made as to the time of commencement (which is not apparent), in circumstances where the time was only one factor of many supporting the Tribunal’s adverse credibility finding such an error of fact would not amount to jurisdiction error (NABE (No.2)).

20. Ground one is not made out.

Ground Two

1. Ground two asserts a failure to properly consider a claim made by the applicant. That is said, in the particulars, to relate to a “video clip” of a demonstration posted on YouTube. In short, the applicant told the Tribunal he had appeared in a particular video clip and referred to a “still” image taken from that video clip which he said was of him. The video clip was said to relate to the relevant demonstration. The claim was that this would bring him to the attention of the Iranian authorities. In part the exchange between the Tribunal and the applicant at the hearing revolved around whether the person depicted in the video clip had a beard, or was simply unshaven. The Tribunal’s finding that the man in the video clip had a beard was an element in the Tribunal’s rejection of the applicant’s claims to protection.

The Submissions

1. It must be said that the applicant’s submissions in relation to ground two are best described as confused. Although the ground alleged a failure to “properly” consider a claim, in written submissions the applicant made the additional complaint that the Tribunal denied the applicant procedural fairness. That is, that the Tribunal failed to put him on notice of an issue, being the distinction between being “unshaven” and “wearing a beard”, that was dispositive in the review.

2. In oral submissions before the Court the applicant sought to link the two complaints, such that the Tribunal’s failure to put the applicant on notice of that issue, said to be a denial of procedural fairness, led to it failing to “properly” consider the applicant’s claim.

3. Ground two was further confused by the applicant’s written submissions providing that, in failing to put the applicant on notice of the distinction between wearing a beard and being unshaven, the Tribunal had “offended the rule in Browne v Dunn”. Before the Court I raised with the applicant my concern that Browne v Dunn (1893) 6 R 67 (HL) (“Browne v Dunn”) did not apply to hearings before a Tribunal (see further below at [74] – [75]). In response, the applicant’s counsel clarified that he was relying on Browne v Dunn to illustrate that the rules of procedural fairness require that if an adverse view is to be taken by the Tribunal, then that needs to be put to the applicant.

4. Ultimately, despite how it was drafted in his application, I understood the applicant’s complaint to be that the Tribunal had denied him procedural fairness as it made a finding adverse to him without putting him on notice of that issue. That issue, the distinction between being unshaven and wearing a beard, was said to be a material issue as it formed the basis for the Tribunal rejecting the applicant’s claim that he appeared in the YouTube video ([147] – [148] at CB 230). The distinction between wearing a beard and being unshaven was said to be a particularly important distinction in the current case given the social and religious “connotations” of a beard. In short, the applicant submitted that the Tribunal’s failure to alert the applicant to the issue, which was dispositive in the review, was a breach of s.425 of the Act.

5. In response to ground two, the Minister submitted that, as pleaded in the further amended application, the ground sought impermissible merits review.

6. In response to the applicants’ oral submissions, and the ground as it evolved before the Court, the respondent submitted that there was no denial of procedural fairness, nor breach of s.425 of the Act, as the applicant was invited to a hearing and given an opportunity to give evidence and put arguments. At that hearing, and with reference to what is set out at T 36, the Tribunal raised with the applicant its view that the individual in the YouTube video had a beard. Even taking into account any errors in interpretation in relation to that section of the hearing, the Tribunal clearly understood that the applicant was claiming that the person in the video was him and that he had, at times, been unshaven. At [147] to [149] (at CB 230) the Tribunal clearly considered the applicant’s evidence in that regard. It simply chose to reject it. It gave reasons for this.

Consideration

1. I agree with the Minister. Taking the ground as originally asserted, the complaint was not that the Tribunal failed to consider a claim which could lead to jurisdictional error in the way explained in such authorities as NABE(No.2) and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and the like.

2. Rather, the claim was that it failed to “properly” consider the claim. A failure to properly consider a claim in some circumstances can lead to jurisdictional error. For example, where the Tribunal failed to consider an integer or aspect of a claim that was expressly made or clearly arose from the circumstances presented (NABE (No.2) and Htun). But this is not what was meant by this complaint, either as stated or presented.

3. The applicant claimed to be a person in a particular video clip posted on YouTube. The Tribunal viewed that video clip. At the hearing the Tribunal told the applicant that the person in the video clip had a beard. That was contrasted with the applicant’s earlier evidence, given at the same hearing, that he had never worn a beard.

4. The Tribunal plainly considered the question of whether the applicant was the person in the video clip, as he claimed. The Tribunal rejected that claim, in part, on the basis that it could not have been the applicant in circumstances where he said he had never worn a beard, yet the person depicted had a beard (see [147] – [149] at CB 230).

5. In the circumstances, the applicant’s ground as stated and particularised is so obviously a complaint that the Tribunal came to the wrong conclusion, or made an error in a finding of fact, that it raises the question as to why the applicant’s legal representatives would have sought to pursue this ground, particularly by pressing it in a further amended application.

6. The ground as stated is plainly an invitation to the Court to engage in impermissible merits review (Wu Shan Liang). It fails for that reason.

7. It was never explained before the Court how the submission that there was a breach of s.425 of the Act related to the ground as stated and particularised. Nor was the relationship with ground three, which does assert a breach of s.425 of the Act, ever explained.

8. In any event the complaint in written submissions, echoed in oral submissions before the Court, was that the Tribunal made an adverse finding “… where it did not first put to the Applicant the question of what defined a beard as opposed to the situation where one has not shaved for a few days” (page 15 of the applicant’s written submissions).

9. As interesting as a discussion about hirsute characteristics may have been, and indeed the “applicant’s interpretation of what a ‘beard’ is” (the applicant’s written submissions at page 16), the applicant’s reliance on the “rule” in Browne v Dunn  does not assist him in revealing jurisdictional error on the part of the Tribunal in this regard.

1. The applicant’s reliance on that “rule” betrays a lack of understanding of the nature of the proceedings before the Tribunal in the conduct of the review and, further, of review by this Court of the Tribunal’s administrative decision.

2. It is the case that proceedings before the Tribunal are inquisitorial (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at [194] per Gummow and Hayne JJ and Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 at [23] per Wilcox and Madgwick JJ). Tribunal proceedings require the member constituted for a particular review to reach the requisite level of satisfaction. That is, that the applicant meets the definition of “refugee” such that the visa must be granted (s.65 and s.36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

3. In the conduct leading to the disposition of the review the Tribunal, as constituted, is required to make findings of fact including, if necessary, findings on credibility. The Tribunal has been described as the decision maker “par excellence” in this exercise of its jurisdiction (ReMinister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

4. Further, as set out above, the argument concerning a breach of s.425 of the Act in this regard was never “properly” explained before the Court. For example, it was assumed, or (given the nature of the presentation of his case) it would have needed to be assumed in circumstances where the applicant sought to rely on a breach of procedural fairness with relevance to a particular part of the statute (Div.4 of Pt.7 – s.425 of the Act), that the matter of the definition of a beard was an issue in the review. In those circumstances, the failure of the Tribunal to raise that issue at the hearing, and where it was not already a live issue as a result of the delegate’s decision, may lead to jurisdictional error in the way explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”).

5. At its highest, therefore, the applicant’s complaint may be seen as being that the Tribunal did not raise with the applicant an issue dispositive of the review (see SZBEL).

6. The difficulty, amongst many, for the applicant in any such attack is that I cannot see that the definition of a beard was a determinative issue in the review.

7. In SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 Bennet J explained the distinction between an “issue” in the review and the factual matters (or substratum of facts) that go to an issue. Further, and with reference to SZIMM v Minister for Immigration & Anor [2008] FMCA 34 at [65] per Barnes FM, with whom I respectfully agree, I understand that an “issue” in a review is not to be defined inflexibly, nor in the abstract. Rather, an issue in the review arises from, and is integral to, the circumstances presented.

8. At best for the applicant, the relevant issue in the review was whether he had participated at relevant demonstrations and come to the adverse attention of the authorities as a result of that participation. Any plain reading of the transcript of the hearing, to which the Tribunal’s own account is relevantly consistent, reveals that that issue was discussed with the applicant at the hearing.

9. But even if, by some stretch, it could be said that the matter of whether the applicant’s risk of coming to the attention of the authorities arose from the YouTube video clip, and therefore that it could be said to be an issue in the review, that was specifically discussed at the hearing (see at T 36 – T 37).

10. What is clear is that the applicant had the opportunity to present his argument to the Tribunal as to the video clip. The Tribunal squarely put to him at the hearing that it had concerns that he was not the person portrayed in the video clip. It told him why it had those concerns.

11. In essence, that was that the video clip had been taken at a particular location at which the applicant had made no claim to have been at. That was in spite of the Tribunal’s careful questioning of the applicant as to his relevant movements. The other concern held by the Tribunal was the matter of the inconsistency between the applicant’s evidence that he had never had a beard and the Tribunal’s assessment of the person in the video clip, who it saw as wearing a beard.

12. It was the applicant who raised the explanation that there was a difference between a beard and “a few days growth”, such that his evidence that he had never had a beard was not contradictory. That is, he never said that he did not, from time to time, allow a few days growth on his face.

13. The simple answer to the applicant’s complaint is that the Tribunal did not accept the applicant’s explanation ([147] – [149] at CB 230). The principles of procedural fairness embodied in s.425 of the Act require the exposure of an issue. The Tribunal did that. The Tribunal was not required to expose its adverse reaction to what the applicant said in explanation of the concerns it had raised with him.

14. What the Tribunal considered to be a beard, and what it considered to be “a few days growth”, are not issues in the review. Rather, that is the Tribunal’s evaluation of the evidence before it. The Tribunal was not required to provide to the applicant a running commentary on its thought process during the conduct of the hearing (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [54] per Gummow and Heydon JJ).

15. In addition to the applicant’s complaint as set out above, in his submissions, the Minister raised the question as to whether the ground, as stated and particularised, seeks to assert that the Tribunal’s conclusions about the video clip and the beard were unreasonable and illogical.

16. It may be that the words “failed to properly” have some remote connection to such a charge. In any event, I agree with the Minister that the Tribunal’s conclusion is not illogical, irrational or unreasonable. It is the case that, while minds may differ, the conclusion is not to be so characterised (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”), and SZOOR v Minister for Immigration& Anor [2012] FCAFC 58 per Rares J at [15] and McKerracher J at [84] – [85]).

17. The question of the definition of a beard therefore will have to await another case. In the current case, there is no jurisdictional error in the manner (probably) contended for by the applicant. Ground two is not made out.

Ground Three

1. The final ground of the application to the Court asserts a failure to comply with s.425 of the Act. It is alleged that the hearing before the Tribunal suffered from “interpretation issues” and, as a result, the applicant was denied a real and meaningful opportunity to give evidence and put his case.

The Submissions

1. The applicant referred to Appellant P119 /2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 (“P119/2002”) and, as set out in that case, the “two types of interpretation errors” that can lead to jurisdiction error. The applicant submitted that both those errors had occurred. That is, that there was a plethora of interpretation errors which, when taken as a whole, meant the applicant was denied a hearing and, further, that those errors materially affected the Tribunal’s decision.

2. Relevantly, in P119/2002 at [17]:

   “The claimed obligation upon the Tribunal under s.425 of the Act to provide adequate interpretation services in the conduct of the Tribunal hearing has been commented on by this Court on a number of occasions. In addition to the cases referred to above, see also Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1376; (2001) 115 FCR 1 at 6 [27] (Singh); Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; (1999) 59 ALD 773 at 782 [25]; Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (Perera). In its written submissions the respondent, after referring to these cases, submitted that in order for the appellant to succeed in an argument that the Tribunal had failed to comply with s.425 of the Act by reason of inadequate translation services the appellant would need to establish that:

   (a)     the standard of interpretation at the Tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the Tribunal; or

   (b)     errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.”

3. In support of the first type of interpretation error relevant to the standard of interpretation, the applicant’s written submissions took the Court to various discrepancies in the interpretation at the hearing. In relation to the second type of interpretation error, that is interpretation errors that materially affect the Tribunal’s decision, the applicant submitted that the errors in interpretation resulted in confusion surrounding the date of events in Iran. That confusion led the Tribunal to remark that it was “getting rather impatient”. While the Tribunal was ultimately alerted to the interpretation issue, and said that its decision would not be influenced by the resulting confusion, the applicant submitted that the Tribunal’s impatience “bled” into its consideration of the applicant’s claims and “poisoned” the Tribunal’s approach.

4. The respondent conceded that there were issues in the interpretation provided to the applicant at the hearing. However it was submitted that those errors occurred at the beginning of the hearing, were brought to the Tribunal’s notice and were resolved. Further, that as was held in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 (“WACO”), the level of interpretation need only be adequate, not perfect. The Minister submitted that the interpretation problems in the current case were not to such a level that the interpretation could be described as “inadequate”.

5. It was the Minister’s submission that the Tribunal’s decision record, and the transcript of the hearing, both revealed that the applicant had given extensive evidence and that that evidence was understood, and accurately reported, by the Tribunal. In this way, the Minister sought to distinguish the current case from what was said in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (“Perera”)

6. Finally, the respondent submitted that the applicant had failed to point to any examples of errors in the interpretation which were said to have been material to the Tribunal’s adverse conclusion ([17] of the Minister’s written submissions).

Consideration

1. It is clear that interpretation errors did occur at the hearing. See, for example, at T 15, line 49 where the interpreter concedes to the Tribunal that “… I may misinterpreted for you.”. In this sense, this ground of the further amended application can be distinguished from it predecessors in that it has, at least, some probative basis in the evidence before the Court. However it again suffers from similar difficulties in presentation. It was unclear from the ground as stated and particularised whether the applicant’s complaint was that the standard of interpretation was generally so inadequate that the applicant was effectively prevented from giving his evidence, or that certain errors were made which were material to the Tribunal’s adverse conclusions. Further, how the two were related, if at all.

2. The reference in written submissions to VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [27] per Finkelstein J would suggest the errors made were material to the adverse conclusions reached by the Tribunal. However what immediately precedes that reference (various specific instances of claimed inadequacies) would support the former attack. That is that, given the plurality of errors, the level of interpretation was inadequate.

3. It must be said, nor did matters become clearer at the hearing before the Court, the applicant’s position appeared to be that he did not “want to pin” himself “down to one”. At one point the applicant’s reliance was said to be on the proposition that the interpretation was so inadequate that the applicant was denied a meaningful opportunity to give his evidence.

4. Ultimately, and at best, I understood the applicant’s position to be that the standard of interpretation as a whole was so inadequate that the applicant was denied the opportunity to be heard and present his arguments. This was said to be seen with reference to five extracts from the transcript, all of which the applicant submitted were instances of inadequate interpretation. [Although in what follows, I also have had regard to the “materiality” question. That is the “second” type of interpretation error.] The five extracts relied on by the applicant are dealt with below.

5. It is the case that at those parts of the transcript, and indeed other parts that were not relied on by the applicant, the interpreter did not translate the applicant’s utterances, nor indeed the Tribunal’s, word for word. An example of this, and indicative of the level of competence of the interpreter, are the references to both the applicant and the Tribunal member in the third person. See for example at T 36, line 43: “… he says that you have said …”

6. It is the case that in circumstances where an applicant cannot adequately present his case in English the Tribunal is required by the Act (s.425 and s.427) to provide a competent interpreter providing an adequate interpretation (Perera at [17] and [20]). However, the applicant’s attack in the current case is directed to the interpretation and not the interpreter. That is that the interpretation was not competent.

7. In this regard, as the Minister submits, the requirement is not for a “perfect” interpretation but one that is “sufficiently accurate as to permit the idea or concept being translated to be communicated” (WACO at [66]). That is, the interpretation must be sufficiently accurate.

8. What must not be forgotten is that the breach of s.425 of the Act occurs where the applicant is unable, because of the interpretation provided, to adequately give evidence and present argument. It is the denial of that opportunity, relevantly through inadequate interpretation, that grounds the failure in procedural fairness (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] and Perera). The applicant’s instances of claimed errors are not such as to rise to a denial of that opportunity, either when considered individually or cumulatively.

9. The first extract relied on by the applicant is referred to in submissions as: “Is there any problem with your understanding of what he is saying?”. Relevantly, T 15, line 35 to T 16, line 10:

   “MEMBER: Why didn’t you tell me that you missed whole year?

   INTERPRETER: [in Farsi] He says that why didn’t tell this before that you missed that whole year

   APPLICANT: [in Farsi] No one asked me to explain the reason.

   INTERPRETER: [in English] Because you didn’t like you didn’t ask it was one month [INDISTINCT]

   MEMBER: I did [applicant] and I am getting rather impatient with your attempts to avoid the truth.

   INTERPRETER: [in Farsi] He says that I asked. He says that I wan to see you say exact.

   MEMBER: These matters go to whether I can accept you telling the truth about anything.

   INTERPRETER: [in English] Excuse me, I am [INDISTINCT] to say something, ok? Because I am interpreting that he was exactly telling the truth but the months was confusion, confusing

   MEMBER: No it is a year, whole year we are missing [INDISTINCT]

   INTERPRETER: [in English] Yeah, I know, but the test is once a year and when he misses one month.

   MEMBER: madam interpreter it is not up

   INTERPRETER: [in English] Yes, I know but I may misinterpreted for you. Because he said that after he missed the first test he had to 7 months study at home may be

   MEMBER: You just interpret exactly what he says

   INTERPRETER: [INDISTINCT] even I wasn’t sure about the months. Because he had to explain to me because I wasn’t sure about the months in Iran. He just wrote it down and explained to me. I wasn’t also sure. Just want explain the months.

   MEMBER: Is there a problem with your understanding of what he is saying?

   INTERPRETER: [in English] No it is not. But I didn’t know the month, which month was it. He explained.

   MEMBER: We just confine ourselves to exactly what he says. You translate what he exactly says then we won’t have any misunderstanding.

   INTERPRETER: Ok. [in Farsi] He says that what we concentrate on what we say to avoid such mistakes.”

   [Emphasis as per the applicant’s written submissions.]

10. The applicant’s reliance on this section of the transcript reveals that the interpreter conceded that he “may misinterpreted for” the Tribunal. This led the Tribunal to direct the interpreter to: “… translate what he exactly says then we won’t have any misunderstanding”

    
    

    (T 16, line 9 – 10).

11. The discussion at this point of the hearing concerned the applicant’s educational background. The specific interpreting difficulty is concerned with what is referred to as the “confusion” over the applicant having missed one examination in one month and that, as a result, he was required to extend his study to await the next examination.

12. There are two answers to the applicant’s complaint here. First, the “error” in interpretation cannot be said to be significant or material in the sense that the applicant was denied the opportunity to put his case. Nothing specific turned in the review on the exact date the applicant completed his study.

13. Second, to the extent that the applicant asserts that this was part of, and contributed to, the Tribunal’s adverse view of his credibility, it is clear that at this point not only was the Tribunal aware of the interpreter’s difficulty but, because of it, drew “… no adverse inference from the discrepancies in the applicant’s evidence in this regard” ([129] at CB 226).

14. There may well be cases where Tribunal members say that they have disregarded some matter, or not taken it into account, but their decision record provides a basis for the contrary. This is not one of those cases. There is nothing to show that this particular exchange as to the relevant dates or time of his academic studies was relied on by the Tribunal, either specifically, or to found a general disbelief of the applicant’s claims. The Tribunal’s rejection of the applicant’s claim in the current case was amply supported by other evidence not the subject of specific challenge now.

15. The second instance relied on by the applicant is at T 21, lines 20-32 and is headed “The Silent Protest”:

    “MEMBER: Well, the information available to me indicates to me the ‘silent protest’ in fact involved protesters marching silently from Enghelab Square to Azadi Square.

    INTERPRETER: [in Farsi] He says that the information received is that this Silence Protest had started from Enghelab Square toward Azadi

    APPLICANT: [in Farsi] I am saying too from Enghelab Square to the direction of Azadi becomes Azadi.

    INTERPRETER: [in English] From Enghelab Square to the direction of Azadi all of it called Azadi.

    MEMBER: So, what other protests were you involved in after that?

    INTERPRETER: [in Farsi] What other protests were you involved after that?”

    [Emphasis as per the applicant’s written submissions.]

16. This concerns some aspects of the applicant’s claim to have been involved in what was described as the “quiet protest” that took place after the relevant election. Specifically, the direction taken by the demonstrators along the specific route of that protest.

1. The applicant specifically focused on the Tribunal’s report in its decision record at [133] (at CB 226 to CB 227):

   “… he said at the hearing before me that this demonstration had started from Azadi Square and had gone all the way to Imam Hossein Square. He said that millions of people had participated in this demonstration …”

2. He argued that, based on what the applicant actually said at the hearing (as opposed to what the interpreter actually interpreted) this is not an accurate record of the applicant’s evidence. Specifically, the applicant asserts (at page 19 of the applicant’s written submissions):

   “The Tribunal member at paragraph 134 goes further then to consider the applicants response, as it was relayed to him by the interpreter, and again he relies on what is said by the interpreter which can be distinguished from what was actually said by the applicant – who said the words ‘I am saying too’ (in agreement with the Tribunal) which was not repeated by the interpreter to the Tribunal and therefore did not put the actual response of the applicant to the Tribunal for consideration.”

3. While the exchange relied on by the applicant occurs at T 21, lines 20 to 32, that excerpt ignores that earlier in the hearing the applicant had said (at T 20, line 16 – 30):

   “MEMBER: Which protests you actually were involved in?

   INTERPRETER: [in Farsi] Which protest you were involved in?

   APPLICANT: [in Farsi] I was involved in the very protests called quaiet (sic) protest which ran fron (sic) Azadi Square to Imam Hossein Square. This was the first protest I participated.

   INTERPRETER: [in English] The first demonstration that I was participated was few days after election which it was a quiet and peaceful demonstration and started at Azadi Square and it was all the way to Imam Hossein Square.

   APPLICANT: [in Farsi] Millions Protest.

   INTERPRETER: [in English] Which in that demonstration were millions participated

   MEMBER: Are you sure that was from Azadi Square to the Imam Hossein Square?

   INTERPRETER: [in Farsi] He says are you sure it was from Azadi to Immam Hossein

   APPLICANT: [in Farsi] Yes, I was at Azadi myself.

   INTERPRETER: Me myself I started from Azadi.”

4. The question at the centre of all this was from where did the “quiet protest” start? The applicant at first volunteered that the “quiet protest” started at Azadi Square and proceeded to Imam Hossein Square. When the Tribunal confronted the applicant with country information which said that the “quiet protest” started from another square (Enghelab), and ended in Azadi, the applicant then said what is reported at that part of the transcript now relied on.

5. Critically, the applicant’s explanation in support of his assertion that he was now agreeing with the Tribunal as to the direction taken by the protest (“I am saying too”) was to say, in effect, that there was no inconsistency in his evidence because the whole of the relevant area in which the demonstrations occurred was called “Azadi”.

6. Importantly, at this point, there is no real difference between what the applicant said and what the interpreter interpreted (T 21, line 31 – 33). It must be said that the applicant’s selective quotes from the transcript, when seen in context of the entire relevant discussion, do not assist his case. The Tribunal’s impugned statement (see [115] above) may not have been “accurate” in terms of what the applicant said at T 21, line 31 but it was certainly accurate when regard is had to the greater part of the transcript.

7. The third part of the transcript relied on by the applicant is a T 21, lines 35 to T 32, line 48. It is headed in submissions: “Madam interpreter I have to ask you is there any problem with communication between you and the applicant?”:

   “MEMBER: So, what other protests were you involved in after that?

   INTERPRETER: [in Farsi] What other protests were you involved in after that?

   APPPLICANT: [in Farsi] I went to few protests after that. I think three or four after that which usually went towards Wali Asr Kargar Street, Bolwar Keshawarz, it used to start like this.

   INTERPRETER: [in English] After that demonstration I participated in three to four also demonstrations. One of them was in Wali Asr Square, another one was Kargar Street and then another one was Enghelab Square and one other was in Boelwar, .. Bolewar Keshawarz.

   APPLICANT: Bolwar Keshawarz

   INTERPRETER: yeah, Bolwar Keshawarz

   MEMBER: Let’s go through those one by one. So you say you participated in one at Wali Asr Square.

   INTERPRETER: [in Farsi] You participated in one at Wali Asr Square.

   APPLICANT: [in Farsi] What happened to me the day 18 Tir, I was in Kargar Street first, I then, because I had an appointment with my friends, I came to Wali Asr.

   INTERPRETER: [in English] The incident that happened to me was in Wali Asr Square in that demonstration because I was with my friends in 18 Tir Street, the name of street is 18 Tir

   APPLICANT: [in Farsi] No no no, the name of street is not 18 Tir, Kargar Street, Koye Daneshgah

   INTERPRETER: [in Farsi] Aha, the date is 18 Tir

   APPLICANT: [in Farsi] Yes, 18 Tir is the date

   INTERPRETER: [in English] I am sorry, 18 of Tir is the date but the name of the street is Kargar Street

   APPLICANT: [in Farsi] I, before that incident happens to me, I was in Kargar Street but because I had an appointment with my friends I came 7 Tir Square.

   INTERPRETER: [in English] Ok, because I had an appointment for gathering with my friends in Kargar Street me and my friends we came all the way

   APPLICANT: NO no no no

   INTERPRETER: [in Farsi] You came from Kargar

   APPLICANT: [in Farsi] I, I was, myself

   INTERPRETER: [in English] He, he came from Kargar, [in Farsi] where did come to?

   APPLICANT: 7 Tir.

   INTERPRETER: [in English] Yeah, I came to 7^th Tir Square.

   MEMBER: Madam interpreter I have to ask you is there any problem with communication between you and the applicant?

   INTERPRETER: No no no, because he mentioned that the day that I had incident before I had appointment with my friends in Kargar then he said I came to 7^th Tir, 7 Tir is a Square name, I thought is date, but 7^th Tir is the name of that square.

   MEMBER: That’s fine but it’s much better if you give me the name of streets in Iranian (Farsi) because that way I understand what is being said.

   MEMBER: At one point you seem to be saying you met your friend in Kargar Street and then you are saying you didn’t.

   INTERPRETER: [in Farsi] Did you see your friend in Kargar street or not?

   APPLICANT: [in Farsi] No, I had an appointment with them at 7 Tir.

   INTERPRETER: [in English] In Kargar Street I didn’t see my friend. I went to Kargar Street but we had appointment to meet each other in 7^th of Tir Square.

   MEMBER: [INDISTINCT]

   INTERPRETER: [in English] He was by himself in Kargar Street then he went to 7^th of Tir Square.

   MEMBER: Yes, I understand that what you are saying now but it is not that what interpreted and translated what you were saying initially.

   INTERPRETER: [in Farsi] He says that may be you said something different initially.

   INTERPRETER: [in English] I am sorry, I thought it is a date but he said 7^th of Tir is a square.

   MEMBER: Don’t worry about the misunderstanding about the 18 Tir, it wasn’t about 18 of Tir, it was about 7^th of Tir which is a date.

   INTERPRETER: [in English] I am sorry I thought they are with friends together in 7^th of Tir then he told me no, I was by myself in 7^th

   MEMBER: Kargar.

   INTERPRETER: [in English] Met with my friends in 7^th Tir.

   MEMBER: But we seem a bit of head of ourselves [applicant] because you were telling me you had been involved in a number of protests.

   INTERPRETER: [in Farsi] He says that you were in few protests.

   APPLICANT: Yes”

   [Emphasis as per the applicant’s written submissions.]

8. This section of the hearing concerned the date on which the applicant said he participated in another demonstration and the relevant street location of that demonstration.

9. The applicant’s reliance on this part of the transcript, however, was in particular focused on T 22, lines 16 – 17:

   “MEMBER: Madam interpreter I have to ask you is there any problem with communication between you and the applicant?”

10. The applicant’s submission was that there were problems with interpretation and that the Tribunal relied on the applicant’s evidence as interpreted to find that the applicant’s evidence was vague and evasive, and that the evidence given at the hearing did not suggest that he had been involved in demonstrations after the June 2009 presidential elections. The problem for the applicant now is that the very part of the transcript which he emphasised and sought to rely on, when read in context, provides the answer against his arguments.

11. The Tribunal was plainly aware that there was some difficulty with the interpretation. In particular, at the part relied on here by the applicant there was confusion as to whether “7 Tir” (7^th Tir) was a date or the name of a “square”. Plainly the relevant square was named after a particular date.

12. In any event, the Tribunal was alert to the particular problem. In relation to “7 Tir”, clarification was provided by the interpreter. The Tribunal proceeded on the basis of the applicant’s evidence as he meant to give it. In those circumstances, it can hardly be said the applicant was prevented from giving his evidence. Even further, the Tribunal’s own account of the summary of the applicant’s evidence accords with the “clarification” ultimately provided (see [77] at CB 216 and T 22, lines 51 – 56).

13. In addition, the Tribunal proceeded, in its analysis, on the basis that the relevant demonstration occurred on 18 Tir. “7 Tir” does not feature in its analysis as to the date of the demonstration. To the extent that the applicant now says that the Tribunal’s adverse credibility finding arose from the interpretation including 7 Tir, it is clear that the Tribunal’s finding in that regard arose from other evidence not specifically impugned now by the applicant. That is, amongst others, that the applicant’s evidence in relation to what he was doing between June 2001 and June 2009 was “vague and evasive” ([130] at CB 226), that he could not provide “specific information” about what he had “seen at the demonstrations” ([131] at CB 226) and that his claim that his friends were still imprisoned did not accord with country information before the Tribunal ([138] at CB 228).

14. The fourth instance of interpretation relied on by the applicant appears to be at T 26, line 24 – 43 and referred to in the applicant’s written submissions as “No No No”:

    “MEMBER: [Applicant], there were numerous reports as present and I had very detailed reports about everything that took place from hour to hour, from minute to minute.

    INTERPRETER: [in Farsi] he says that I have reports minute to minute.

    APPLICANT: [in Farsi] no no no, look, he may have not got my points of view properly. I am saying that it is not like any other place that if there is a clash, a wiping, hitting someone with stick, that would be a big thing. But in Iran in every demonstration there were clashes. I meant that.

    INTERPRETER: [in English] I am not telling that [INDISTINCT] my main point is that in any part of the country which incident happen the news make it much bigger than what it is and they have the chance to bring it up to the society but in Iran everything, everything these things there happening and it was like at the regular basis.

    MEMBER: [INDISTINCT] appropriate for us to have a break. I just to call someone to come along and to turn off the recorder to be able to leave the room, for five minutes because you are in detention. We have to wait someone to come along.

    INTERPRETER: [in Farsi] he is going to give us a break [INDISTINCT].

    [Pause]

    MEMBER: take a break for about 5 minutes

    [BREAK]

    SECRETARY: [INDISTINCT] the time is: 3.38pm.”

    [I note the applicant’s written submissions refer to “CD 2: P 2” which does not correspond to that part of the transcript which is excerpted in written submissions. The excerpt corresponds to T 26, lines 24 - 43]

15. The applicant’s attack is that the interpretation error here is such that the interpretation given to the Tribunal is “irreconcilable” with what the applicant said.

16. I do not agree. The extract, even on its own and certainly when read in context with what immediately precedes it, reveals as follows. The Tribunal was plainly concerned with the applicant’s evidence regarding his claim to have been at a number of demonstrations, including a demonstration at “Bolwar Keshawarz”.

17. At T 25, line 49, and subsequent, the Tribunal specifically asked the applicant to: “… tell me anything specifically about that demonstration at all that would convince me that you were on that demonstration”. The applicant responded that all demonstrations were similar (T 26, line 5-8). He then emphasised for the Tribunal that demonstrations in Iran were not like demonstrations in other countries where there is media scrutiny. The implication was that in Iran, in the absence of such scrutiny, clashes with the police meant that police violence could be repeated at each demonstration with impunity (T 26, lines 12 – 15).

18. The applicant’s response here plainly formed the basis, in part, for the Tribunal’s finding that his evidence was “evasive”. He plainly did not address the Tribunal’s concern that he was unable to provide details about the demonstration. In this light, the Tribunal told the applicant that there were: “… very detailed reports about everything that took place hour to hour, minute to minute …” (T 26, line 24 – the start of the extract relied on by the applicant now).

19. There are certainly obvious terminological differences between what the applicant is reported to have said in Farsi (T 26, lines 27 – 29), and what the interpreter said in English (T 26, lines 31 – 34). But that illustrates the division identified in relevant authorities between a perfect interpretation and an adequate one. That is, that as a whole it is sufficiently accurate such that the concept which is intended was in fact communicated. It is to the latter that the standard (adequate) is set.

20. What the applicant was seeking to convey was that the situation in Iran was not like elsewhere. If a demonstrator in “any other place” was attacked by the police it would be a matter of some importance. But, that was said by the applicant not to be the case in Iran. The interpreter’s interpretation certainly conveyed the concept that in Iran such events occur regularly and they are not exposed as elsewhere.

21. It is the case that some discrepancy exists between the applicant’s “any other place …” (T 26 – line 28) (in context, meaning any place other than Iran) and the interpreter’s: “… in any other part of the country” (T 26, line 31). It is possible that what the interpreter actually said was: “… in any other country”, which would make sense in the context of the remainder of the sentences extracted. This is particularly so when the interpreter then goes on to distinguish that situation with what happens in Iran (“… but in Iran”). However, the Minister did not seek to challenge this, or any other, part of the transcript which is before the Court in an evidentiary context.

22. However, even with the words actually reported, the concept that the applicant was seeking to convey was transmitted. That is, that such events occur in Iran and no great moment is made of them given the lack of media exposure. In the context of what precedes it, it is tolerably clear that this was said to be in contrast to other countries (see T 26, line 17: “INTERPRETER: [in English] because in Iran it’s not like other countries that there are reporters there”).

23. A number of further matters must be noted. First, the applicant’s statement to the Tribunal as emphasised now in his submissions before the Court: “no no no, look, he may not have got my points of view properly” (T 26, line 27), when read in context, plainly did not relate to any error in interpretation.

24. It related to the Tribunal’s reference to the numerous reports which went to the matter of the detail of what occurred at the demonstrations. The applicant’s reaction shows he well understood that the Tribunal member was telling him that there were detailed reports available against which to compare his sparse account.

25. It must be remembered that the point extracted, and relied on, by the applicant now must be understood in the wider context in which it appears. The applicant’s focus on one small part is misleading. Earlier than the part relied on now by the applicant, the Tribunal was pressing the applicant for anything to satisfy it that he had been present at the demonstration in Bolwar Keshawarz as he claimed (T 25,

    
    

    lines 48 – 49). The interpreter’s interpretation was greatly consistent with that (T 25, lines 51 – 52). The applicant’s subsequent statements show that he was not responsive to the Tribunal’s questions. The applicant spoke generally and introduced the idea that demonstrations in Iran were different from elsewhere. If anything, this entire part of the transcript, which includes the part relied on by the applicant now, could have provided a part of the basis for the Tribunal’s finding that the applicant’s evidence was vague and evasive.

26. In any event, further and importantly, there was nothing before the Court to specifically link this extract to any specific finding made by the Tribunal.

27. The fifth extract relied on by the applicant is at T 34, line 28 – 54, headed in submissions: “I didn’t get what he meant by that question”:

    “MEMBER: as we discussed, there was a reason for these demonstrations were being held on 18 of Tir.

    INTERPRETER: [in Farsi] but it has been said that the reason behind this demonstration being held on 18 Tir what was the motivation? Reasons you said.

    APPLICANT: [in Farsi] Reasons, those I said? So what should I say now?

    INTERPRETER: [in Farsi] yeah I know what the main reason for this demonstration so what you expect me.

    APPLICANT: [in Farsi] excuse me I didn’t get what he meant by that question.

    INTERPRETER: [in English] can you like tell me what do you want me to say

    MEMBER: well, I am just surprised that you don’t know where the demonstration was supposed to end up, given the reason for the demonstration.

    INTERPRETER: [in Farsi] he says that you knew the reason for the demonstration but how come you didn’t know where this demonstration was supposed to end up.

    APPLICANT: [in Farsi] look, you, we in Iran the problem is that in Iran that wasn’t an organised demonstration as such. That was an impulsive move by people. There was no organising body, it is true that it was held under the name of Mir Hossein Mosawi, or the demonstrations triggered by the election, but you have no leader as such to organised a demonstration with a schedule to go from here to there.

    INTERPRETER: [in English] because in Iran, OK, all of these streets demonstration gathering was purely from the people. It wasn’t that much organised and we didn’t have the leader to arrange us specific direction that all of us get together and set us our destination because true that was because of Mr Hossein Mosavi which we were the followers but it wasn’t specifically the leadership and direction.”

    [Emphasis as per the applicant’s written submissions.]

28. The assertion here was that the applicant was prevented from answering a specific question put by the Tribunal because he did not understand the question.

29. It is the case that, again, the interpretation here was certainly not perfect. But the question posed by the Tribunal was the same as one posed earlier in the hearing. The Tribunal was concerned that the applicant, contrary to his claim to have been involved in the 18 Tir demonstration, did not know where the “demonstration was supposed to go” (T 34, line 14).

30. The Tribunal’s point was that any participant in the demonstration would have known of its final destination as the reason for the demonstration was the tenth anniversary of students killed in a demonstration in 1999. The protesters had planned to march to a square in front of the University to mark their deaths.

31. Prior to the extract relied on now by the applicant appears the following (T 33, line 45 to T 34, line 29):

    “MEMBER: and where this demonstration was supposed to go, [applicant].

    INTERPRETER: [in Farsi] He says that the target of this demonstration to what direction supposed to go.

    APPLICANT: I the demonstrations.. I in my talking..

    INTERPRETER: No, he is talking about this.

    APPLICANT: [in Farsi] I don’t know. I don’t know. But I only know that the Police was directing the people’s movement to that direction, toward north. I don’t know.

    INTERPRETER: [in English] We don’t know, I don’t know that was the main goal and place to stop this demonstration but I know that the police there trying to guide us to the north.

    APPLICANT: [in Farsi] because they guide us to that direction.

    INTERPRETER: [in English] yeah, because the police turned and guided everyone to the north.

    MEMBER: you say, you have arranged to meet your friend at the 7^th of Tir to join this demonstration.

    INTERPRETER: [in Farsi] you said that you saw your friend at 7 Tir and connected to this demonstration.

    APPLICANT: [in Farsi] yes.

    INTERPRETER: yes.

    MEMBER: and you are telling me that you didn’t know where the demonstration was supposed to go.

    INTERPRETER: [in Farsi] He says in fact, how didn’t you know where this demonstration was supposed to start to and to go to?

    APPLICANT: [in Farsi] look, demonstration when said, coordinated beforehand say for example all be at Wali Asr at certain time, there was no set destination to go because basically demonstration in Iran are considered illegal by the authorities, none of the demonstrations were not prearranged as such to have a preset direction.

    INTERPRETER: [in English] Because before the people gathering for example to tell us for example everyone gathered for example in Wali Asr Square or in any square, they used to tell us the gathering place but they never told us like the final destination. Because there were no legal demonstration, they were not permitted demonstration that they tell us the destination.

    APPLICANT: [in Farsi] to have a specific route.

    INTERPRETER: [in English] like, and to show and tell us where is the destination.”

1. What is abundantly clear is that the applicant understood that he was being asked about the direction taken by demonstrators and intended to have been taken by the demonstrators in the demonstration. His answers plainly revealed that he did not know. When read in context, this was not due to any error in interpretation. His answer plainly revealed a lack of knowledge. When read in its totality, this was not due to an error in interpretation. That provides part of the basis for the Tribunal’s finding at [137] (at CB 227 to CB 228), and see also [136] (at CB 227), that the applicant’s evidence was vague and evasive which, in turn, supported its finding that the applicant had not been involved in demonstrations as claimed (see at [131] at CB 226).

2. This ground, and the particulars relied on, as a whole, on its face and seemingly initially, could be distinguished from the other grounds in which the lack of merit was apparent. However, ultimately it also reveals a poor attempt to expose jurisdictional error in the Tribunal’s decision.

3. The relevant test is not made out by simply pointing to errors in interpretation. Nor by selectively quoting from the transcript while ignoring the wider context of the transcript from which those quotes are taken, and in which they appear.

4. What may look promising when extracted in written submissions may succeed in circumstances where the Court is not taken to other relevant parts of the transcript, or where the Court overlooks the entire transcript put in evidence. This has not occurred in this case.

5. The interpretation was not perfect. But when regard is had to the totality of the transcript and, (as set out above) in some instances, even the quoted extracts on their own, the interpretation was adequate to the purpose.

6. I cannot see, in relation to each complaint made by the applicant, that the applicant was denied the opportunity to give his evidence. The level of interpretation was not so inadequate. Nor were the errors made material to the Tribunal’s conclusion. Ground three is not made out.

Conclusion

1. None of the three grounds of the further amended application have been made out. In those circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  2 October 2012