SZQUX v Minister for Immigration

[2012] FMCA 700

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQUX v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 700

MIGRATION – Application for review of decision of Refugee Review Tribunal – application for an extension of time – alleged failure to put information to the applicant – alleged interpretation issues at the Tribunal hearing – Tribunal’s decision alleged to be unreasonable, irrational and illogical – extension of time refused – application dismissed as not competent.

Migration Act 1958 (Cth), ss.36, 48B, 65, 417, 424A, 424AA, 425, 476, 477

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
SZNZU v Minister for Immigration & Anor [2010] FMCA 197
SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26
SZQPN v Minister for Immigration & Citizenship [2012] FCA 424
BZABK v Minister for Immigration & Citizenship [2012] FCA 774
Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576
Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364
Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279
Vu v Minister for Immigration & Citizenship [2008] FCAFC 59
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609
WALA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1784
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471
SZMPT v Minister for Immigration & Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration & Citizenship [2008] FCA 1890
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511
Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19 ;(2000) 201 CLR 293
Applicant NAHF of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2003) FCR 359
VBAB v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100
Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575
Minister for Immigration & Multicultural & Indigenous Affair v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Commissioner of Police v Ryan [2007] NSWCA 196; (2007) 70 NSWLR 73
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

Applicant: SZQUX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2499 of 2011

Judgment of: Nicholls FM

Hearing date: 2 April 2012

Date of Last Submission: 13 April 2012

Delivered at: Sydney

Delivered on: 15 August 2012

REPRESENTATION

Counsel for the Applicant: Mr S E J Prince

Solicitors for the Applicant: SBA Lawyers

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The application to this Court, made on 2 November 2011, amended on 20 March 2012, and further amended on 2 April 2012, is dismissed as not competent by reason of the refusal to extend time.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2499 of 2011

SZQUX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application, made on 2 November 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), amended on 20 March 2012, and further amended on 2 April 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 23 September 2010, 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 (Court Book – “CB” – CB 2). He arrived in Australia on 21 February 2010 without a valid visa or appropriate documentation (CB 2). He was interviewed upon his arrival in Australia and claimed to be seeking asylum (CB 1 to CB 7).

2. Through the Immigration Advice and Application Assistance Scheme (“IAAAS”), on 23 February 2010 a migration agent, “Mr Kevin Ford of Playfair Visa and Migration Services”, was allocated to assist the applicant in making a protection visa application (CB 10 to CB 11).

3. On 4 March 2010 the applicant, through his representative, submitted an application for a protection visa (CB 12 to CB 58). Attached to that application was a document in which he set out his claims for protection (CB 27 to CB 28). Specifically:

   1)He had attended a demonstration (part of the Ashura protests), along with his wife and eldest daughter, on 26 December 2009 in support of Mir Hossein Mousavi (an Iranian politician). The Basij (a religious paramilitary group in Iran) had attacked the protestors, including the applicant and his family members. His wife was hit by a member of the Basij. The applicant intervened and knocked that Basiji to the ground, where he hit his head.

   2)Immediately following that incident the applicant was attacked by several other Basiji. He was able to escape and, along with his wife and daughter, ran to his home, which was located on the same street as the incident.

   3)One of the members of the Basij who had been present at the incident lived in the neighbourhood and recognised the applicant and his wife.

   4)That evening four or five men appeared at the applicant’s home. The applicant fled at the urging of his wife. He was later told by his wife that the men had entered the house, searched for him and told her that the Basiji the applicant had assaulted was now in a coma. His family home had subsequently been under surveillance.

   5)The applicant left Iran for Turkey. Upon arrival in Turkey he acquired a false French passport.  

   6)Since his arrival in Australia he had learnt, from his wife, that his family had been questioned as to his whereabouts. He was worried about the safety of his family. He believed he would be killed if he returned to Iran.

The Delegate

1. The applicant attended an interview with the Minister’s delegate on 12 March 2010 (CB 70).

2. On 15 April 2010, the delegate refused to grant the applicant a protection visa (CB 67 to CB 77). The delegate found the applicant to be “… mostly consistent and coherent in the presentation of his claims” (CB 75). However, given his limited political profile in Iran, evidenced by his attendance at only one demonstration, and that no charges had been laid against him by the Iranian authorities, the delegate held that he did not have a well-founded fear of persecution if he were to return to Iran (CB 76).

3. Further, the applicant’s departure from Iran, although likely to raise questions from the Iranian authorities, would not, in and of itself, ground a well-founded fear of harm (CB 76).

The Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision on 16 April 2010 (CB 78 to CB 81). The same IAAAS appointed migration agent was authorised to receive correspondence on the applicant’s behalf (CB 79).

2. By letter dated 24 May 2010 the applicant was invited to attend a hearing on 8 June 2010 (CB 84 to CB 86). The applicant indicated his intention to attend at that time and requested that a “Persian speaking Iranian (Not Afghani)” be arranged to assist him (CB 87).

3. The Tribunal received written submissions from the applicant’s representative on 7 June 2010 (CB 89 to CB 146, including annexures). Those submissions addressed some of the issues raised in the delegate’s decision, as well as provided a critique some of the delegate’s findings. Annexed to the submissions was material from various websites on the “Ashura protests”.

4. On 8 June 2010 the applicant and his representative attended the hearing before the Tribunal ([39] at CB 162). The applicant was assisted by an “interpreter in the Persian and English languages” ([39] at CB 162).

5. In addition to the claims set out in his statement (see [4] above), the applicant gave evidence that a “Summons” had been issued for him to appear at the Revolutionary Court in Iran. A purported copy of that Summons was provided to the Tribunal (CB 146) (a translation of the document was subsequently provided on 10 March 2010 (CB 152)). Further, the applicant claimed that his wife had been detained and questioned as to his whereabouts. As a result of these events, and the stress placed on his family, his father-in-law had passed away ([82] at CB 171 to CB 172).

6. Following the hearing, on 25 June 2010 the Tribunal wrote to the Department of Foreign Affairs and Trade (“DFAT”) in relation to the applicant’s claims and, in particular, the copy of the Summons he had provided to the Tribunal ([78] at CB 169). While a copy of the letter is not provided in the Court Book, an excerpt from that letter is provided in the Tribunal’s decision record ([79] at CB 169).

7. On 20 July 2010 DFAT responded to the Tribunal’s request and advised that the Summons was “plausible” and “on the face …. appears genuine” ([80] at CB 169). However, DFAT advised that “… forged documents do exist”, and that the Summons would need to be “assessed carefully” ([80] at CB 170).

8. On 23 September 2010 the Tribunal decided to affirm the decision of the delegate. The Tribunal set out its findings and reasons in its decision record ([82] at CB 171 to [111] at CB 175), a copy of which was provided to the applicant.

9. The Tribunal found that key aspects of the applicant’s claims were not credible and that, in the circumstances, he did not have a

   
   

   well-founded fear of persecution ([84] at CB 172). It rejected several of his key claims, including that he had departed Iran illegally ([85] at CB 172), that he had been motivated to attend the Ashura Day demonstrations for political reasons ([87] – [89] at CB 172) and that he had come to the adverse attention of the authorities in Iran ([90] – [98] at CB 173).

10. The Tribunal then turned its mind to the Summons that had been provided by the applicant. In light of its findings as to the applicant’s credibility, the existence of “forged summons” generally and the delay between the Summons being issued and mentioned by the applicant, the Tribunal did not place any weight on the document ([102] – [106] at CB 174).

The Application to the Court

1. At the first Court date consent orders were made that afforded the applicant the opportunity to file any amended application by 7 February 2012. An amended application was filed on 20 March 2012, some five weeks out of time.

2. At the final hearing, the applicant sought to file a further amended application. The Minister’s representative objected to the filing of that document on two bases. First, the applicant had at all times been represented by “experienced practitioners”. Second, the Minister was not in a position to meet ground two of the amended application as he was not able to comprehend it.

3. Ultimately, leave was granted for the further amended application to be filed in Court. To ensure that the Minister’s representative had adequate opportunity to address the amended application, leave was granted for the filing of written submissions with respect to particular two of ground one. The applicant was granted leave to file written submissions in reply.

4. The substantive application to the Court seeking review of the Tribunal’s decision was accompanied by an application for an extension of time within which the substantive application could be made to the Court, pursuant to s.477 of the Act.

5. The application for an extension of time, as set out with the further amended application, contains seven items. Those items essentially seek to explain why the application to the Court is out of time. Namely:

   “1. The first migration agent for the Applicant was Kevin Ford of Playfair Visa and Migration Services. After the DIAC refused a protection visa for the Applicant on 15 April 2010 and the RRT affirmed this decision on 29 September 2010, Kevin Ford was not able to assist the Applicant anymore.

   2. The Applicant’s brother-in-law recommended Mr Farnam Razzaghipour, a migration agent, who was a qualified interpreter in the Farsi language.

   3. Mr Razzaghipour advised the Applicant to write to the Minister because an application to the High Court or Federal Court or Federal Magistrates Court would take too much time and only risk another rejection by the RRT. The Applicant was advised not to waste time in the courts because the Minister would give visas straight away.

   4. The Applicant’s brother-in-law paid Mr Razzaghipour $2750 for his work.

   5. On or about October 2010 during a telephone call Mr Razzaghipour asked the Applicant, if he wanted to become a Christian to have better chance to get a visa. He was told the Minister would focus on the new religion and not about events in Iran or the fear in Iran of persecution. The Applicant was interested in Christianity but uncomfortable about being accused of a pretence.

   6. The Applicant’s first submission to the Minister on 26 October 2010 was refused and the second application to the Minister on 23 March 2011 was also refused on 16 July 2011.

   7. If the Applicant knew that writing to the Minister would take so long, and that he could not write to the Minister many times if he failed unless he had entirely new information every time, he would have decided to go to court. If the applicant had been advised correctly that approaching the Minister was the last step he would have decided to go to the Federal Magistrates Court and Federal Court.”

6. Three grounds are asserted in the substantive application to the Court, and as set out in the further amended application. They are:

   “1. That the Refugee Review Tribunal (RRT) did breach section 424A of the Migration Act 1958

   Particulars

   (1)     At paragraph 85 of the decision the RRT held that the applicant left Iran and arrived in Turkey on his own Iranian passport despite this never being put to the applicant.

   (2)     The Tribunal relied on information being the Report by DFAT No.1173 which related to the applicant and was part of the reasons for affirming the decision under review without providing the applicant with an opportunity to comment on the information.

   2. That the RRT did breach section 425 of the Migration Act 1958

   Particulars

   (1) The translation provided to the applicant during the hearing was flawed and failed to adequately convey Tribunal Member’s questioning; or to allow the applicant an opportunity to respond in respect of:

   - the applicant’s wife (as contained on pages 17-19/66 of the transcript).

   - the circumstances around which the applicant departed Iran illegally (as contained in

   
   

   pages 34-35/74 and 59-60/74 of the transcript).

   (2) The applicant repeats particulars (2) and (3) of ground 3 below.

   3. That the RRT decision was so unreasonable that it could not have been made by a reasonable person.

   Particulars

   (1)     The finding that the applicant and his wife were not in attendance at the protest and have not come to the adverse attention of authorities in Iran was unreasonable in light of cogent evidence that he was and the absence of evidence to the contrary.

   (2) In the alternative to ground 1, there was no evidentiary material or documentation upon which the Tribunal’s based its finding as to the manner in which the applicant entered Turkey.

   (3) The Tribunal found that the Summons from the Revolutionary Court was of no weight in circumstances where there was no evidentiary basis to doubt its authenticity and evidence to support its authenticity.”

Before the Court

1. At the hearing Mr S E J Prince of counsel appeared for the applicant. Mr P Knowles of counsel appeared for the respondent Minister.

2. The Court had regard to the Court Book, the applicant’s affidavit of 17 October 2011 and written submission filed by both the applicant and the first respondent. [I note that Mr Prince adopted and relied upon the applicant’s written submissions, although he indicated that they had been drafted by another counsel.] In addition, the applicant sought leave to read and rely upon the affidavits of Ms Farzaneh Pashmforosh of 18 January 2012 and 31 March 2012.

3. Ms Pashmforosh’s affidavit of 18 January 2012 made reference to two exhibits, being transcripts (“T”) of the interview with the delegate and of the hearing before the Tribunal respectively. Both documents were not filed at the time that the affidavit was “e-filed” with the Court’s Registry as their size prevented them being accepted by the Court’s online filing system. As such, the applicant sought to tender the two documents as exhibits. They were accepted into evidence, with no objection from the first respondent, and marked “Exhibit FP1” (“FP1”) and “Exhibit FP2” (“FP2”) respectively. [I note that FP2 is in two portions, the first is 74 pages and the second is 66 pages. For clarity, references to portions of FP2 throughout this judgment, and in the applicant’s and respondent’s submissions, are set out as: “T page/74” or “T page/66”.]

The Application for an Extension of Time

1. Section 477(1) of the Act provides that, relevantly, applications for judicial review of a Tribunal decision (a “migration decision”) must be made to this Court within 35 days of the date of decision.

2. The Tribunal’s decision in the current case was made on 23 September 2010. The application to the Court was made on 2 November 2011. That is, over 12 months after the expiry of the 35 day period.

3. The consequence of that circumstance is that the application is not competent. However s.477(2) of the Act does provide for the Court to extend that time if it is in the interest of the administration of justice to do so.

4. The elements relevant to this consideration have been canvassed in a number of cases before this Court (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44], SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23], SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 (“SZNZU”) at [52] per Barnes FM). They are:

   1)The extent of the delay and the reason for the delay.

   2)Whether there is any merit in the application.

   3)Whether there is any prejudice to the respondents.

   4)The impact on the applicant.

   5)The interests of the public at large.

   6)The Court’s discretion itself.

5. Not all are relevant in each case. However, in the circumstances of this case, at least two appear relevant. First, the length of the delay in applying for judicial review of the Tribunal’s decision and whether a satisfactory explanation in the circumstances has been presented for the delay. Second, the merits of the grounds of the substantive application, in this case as further amended.

1. I should just note that, in considering this question, I have had regard to SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26, and, in particular, to SZQPN v Minister for Immigration & Citizenship [2012] FCA 424 (per Jagot J) and BZABK v Minister for Immigration & Citizenship [2012] FCA 774 (per Foster J).

Extension of Time: Submissions

1. In relation to the issue of an extension of time Mr Prince submitted that time should be extended on two bases. First, given the meritorious grounds of the substantive application, it was in the interests of the administration of justice to do so. This was supported by the fact that the impact on the applicant, if the extension of time was not granted and the Tribunal had fallen into jurisdictional error, was severe, and that there was a “…complete lack of any prejudice to the respondent” in the Court extending time.

2. Second, there was a reasonable explanation for the delay in the application to this Court, namely that the applicant had “applied”, twice, for Ministerial intervention and had been awaiting resolution of those matters.

3. I raised with the applicant’s representative my concern that authority existed which suggested that, where an applicant had sought Ministerial intervention, with informed knowledge of his right to apply to this Court, the exercise of that choice was not a satisfactory explanation for the delay (Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 (“Applicant A2”) per von Doussa J at [5], Re Minister for Immigration & Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J and Plaintiff M90/2009 v Minister for Immigration & Citizenship [2009] HCATrans 279 per Crennan J).

4. In response, Mr Prince submitted that, on his understanding and with reference to Vu v Minister for Immigration & Citizenship [2008] FCAFC 59, Applicant A2 did not go as high as to establish a general principle that seeking ministerial intervention was not a satisfactory explanation for delay. Rather, applying for Ministerial intervention provided “an explanation of sorts” and the Court could, and should, in determining whether to exercise its discretion, take into account the period of delay that was caused by the applicant waiting for the Minister’s response to that intervention request.

5. The submission was further that in the current case, given that the applicant acted promptly after receiving the notification of the Tribunal’s decision, and after being notified of the Minister’s decision not to intervene on both occasions that he requested intervention, the delay was satisfactorily explained. Further, that the delay was not of great significance or length when the time taken between the applicant requesting intervention and the Minister responding was excluded. Particularly as the applicant had “not sat on his hands” following receipt of the Tribunal’s decision.

6. In those circumstances, it was submitted that, even if the applicant’s explanation for the delay was found to be unsatisfactory, time should still be extended. In support of this, Mr Prince referred the Court to the applicant’s affidavit of 27 October 2011 and, as set out there, the steps that the applicant took following receipt of the Tribunal’s adverse decision.

7. In reply, Mr Knowles submitted that the applicant had made a choice in electing to apply, twice, for Ministerial intervention and, as such, lacked a satisfactory explanation for the delay in bringing an application to this Court. Further, even if the grounds of the application were found to have merit, that did not, in and of itself, warrant the Court exercising its discretion to extend time. Rather, with reference to Barnes FM’s approach in SZNZU, the administration of justice was only one factor to be weighed by the Court in determining whether to extend time.

Extension of Time: Consideration

1. The applicant’s evidence does not assist his argument in satisfactorily explaining the delay. The applicant says that, on receipt of the Tribunal’s decision, his then migration agent told him he could no longer assist him. While the applicant’s evidence is deficient in terms of any reference to dates, it appears from the circumstances he presented that, soon after and with the assistance of his

   
   

   brother-in-law, he consulted a migration agent. He made clear in his evidence that that individual was not a lawyer.

2. The applicant’s evidence, in both of his affidavits, is that, acting on the advice of that agent, he agreed to the sending of two letters to the Minister seeking intervention pursuant to s.417 of the Act, and a lifting of the bar to applying for a protection visa, on a second occasion, pursuant to s.48B of the Act.

3. Given that, on the applicant’s own evidence, the first of these letters was sent on 26 October 2010, a clear inference can be drawn that the discussions he reports with that migration agent, and his brother-in-law, occurred in September/October 2010.

4. It is the applicant’s evidence that during this time he had conversations with that migration agent, including asking him whether he could go to the Court. While the agent advised that he should write to the Minister, because it would be quicker, it is clear that at that time, at least, the applicant was on notice of the option of initiating legal proceedings in relation to the Tribunal’s decision.

5. The fact that he was ultimately unsuccessful in his approaches to the Minister, in part, on his view, because he did not provide “new” information to the Minister and did not know he had to do so ([23] of the affidavit of 27 October 2011), does not detract from the fact that, as Mr Knowles submitted, the applicant elected not to come to Court in October 2010 (a time when he would have been within the 35 day limit). Instead he chose to pursue a different course.

6. Whatever the ultimate value of the advice given to him, and even taking into account that it was not legal advice, what still remains is an election by the applicant. While the applicant may now regret his choice (“A wise mind never misses the boat” – [24] of his affidavit filed on 6 February 2012), such regret does not provide a satisfactory explanation for the delay in coming to Court occasioned by his election (Applicant A2 at [5]).

7. To the extent, therefore, that this is an element relevant to the current consideration, the applicant has not provided a satisfactory explanation for the delay of over a year.

8. Nor, for the reasons set out below, does the substantive application to the Court, as further amended, provide support for the applicant in his application to extend time. Before the Court the applicant was represented by solicitors and had experienced counsel to press and explain the three grounds alleging jurisdictional error on the part of the Tribunal.

9. I am satisfied, on what was presented, that this constituted, in the circumstances, the highest expression of the applicant’s case. However, after a full hearing of the matters pressed, I was not persuaded that the Tribunal’s decision was infected with jurisdictional error.

Ground One: The Submissions

1. In ground one, the applicant’s case appeared to be concerned with what were said to be two pieces of “information” that were not put to the applicant by the Tribunal in breach of s.424A of the Act. First, information obtained by the Tribunal from DFAT (No.1173 at [78] – [80] at CB 169 – CB 170). Second, information provided by the applicant at the airport interview upon arrival in Australia, specifically his evidence regarding the passport on which he had departed Turkey.

2. The following paragraphs from the Tribunal’s decision record are relevant to the understanding of the ground:

   1)[18] at CB 160:

   “Unauthorised arrivals interview

   [18] The applicant was interviewed at the airport as an unauthorised arrival. At the interview the applicant provided the relevant details about his age, date of birth, marital status, occupation and relatives. He stated that he had travelled from Iran to Turkey by road where he met up with smuggler who provided him with a false French passport. He stated that he used his Iranian passport to leave Turkey and destroyed his passport on the aeroplane and used his French passport to enter Singapore. He stated that he stayed in Turkey for 40 days and Singapore for four days. He stated that he had a sister living in Canada and a brother-in-law who lives in Canberra but with whom he is not on good terms.”

   [Emphasis added.]

   2)[78] at CB 169 to [80] at CB 170:

   “[78] On the 25 June 2010 the Tribunal wrote to the Department of Foreign Affairs and Trade 2010, DFAT Report No.1173 - Iran: RRT Information Request in respect to the documents provided by the applicant in support of his claims.

   [79] The Tribunal provided the following background.

   ‘…

   … On 26 May 2010 the applicant’s wife was alerted by unspecified persons that a summons for her husband had been issued by the Revolutionary Court. The wife herself was unaware of the Summons. The wife and her brother went to the court the next day and obtained a copy of the summons from the filing department. A copy of the summons issues 14 February 2010 with English translation is attached’

   [80] On 20 July 2010, the Department of Foreign Affairs and Trade provided the following report in response to Tribunal’s request for information on summons and summons procedures:

   ‘…

   Post advises that background set out in the request is plausible. An individual who was involved in a situation such as that outlined by the applicant could be summonsed to appear before the Revolutionary Court, and this could happen in the manner and timeframe outlined in the background.

   …

   On the face of it, the attached summons appears genuine. The logo, form, signature and details written in the summons are consistent with Revolutionary Court documents of this nature. The description of the charge against the accused is consistent with the likely response to the applicant’s activities as set out in the request. There are no obvious indications that the summons is not genuine. However, forged documents do exist and the attached summons would need to be assessed carefully alongside other available evidence.

   …’

   [Emphasis added.]

   3)[85] at CB 174:

   “The Tribunal accepts that the applicant endeavoured to enter Australia on a false French passport however the Tribunal is not satisfied that the applicant departed Iran illegally as he so claims. The applicant stated at the hearing that when left Turkey he did so using his Iranian passport not his false French passport to avoid possible detection by the Turkish authorities. The Tribunal considers that if the applicant was prepared to exit Turkey on his Iranian passport then he would have entered Turkey from Iran on this passport, to do otherwise would have also raised the suspicion of the Turkish authorities as to how he had entered Turkey. The Tribunal is unconvinced that the applicant destroyed his Iranian passport on route to Australia.”

   [Emphasis added.]

3. The first argument put was in relation to the information provided by the applicant at the airport upon his arrival. That information was given prior to his making an application for a protection visa. By logical extension, therefore, this was not provided in support of his application and, as such, was not captured by the exemptions contained in s.424A(3) of the Act. Given that it was relied on by the Tribunal to come to a conclusion adverse to the applicant, it was required to have been put to him. The Tribunal did not do so.

4. In relation to the second limb, the applicant asserted that the information provided by DFAT was relied on by the Tribunal to reject the Summons provided by the applicant. In particular, that the Tribunal had “selected and isolated” the statement that “… forged documents do exist and the attached statement would need to be assessed carefully …” to ground its decision to afford no weight to the Summons. In those circumstances, it was said, that the DFAT information was one of the bases for the Tribunal affirming the delegate’s decision. Pursuant to s.424A of the Act, the Tribunal was required to put that information to the applicant. The Tribunal did not do so.

5. With respect to the Tribunal’s finding that the applicant had arrived in Turkey on his Iranian passport, Mr Knowles submitted that that finding was based on logical inference, not “information” as that term is understood in s.424A of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) at [18]). As the Tribunal is not required to put its subjective appraisals or thought processes to an applicant, in the current case the Tribunal can not be said to have breached s.424A of the Act. Further, the information that supported the Tribunal’s reasoning, namely that the applicant had departed Turkey on his Iranian passport, was information provided by the applicant at the hearing before the Tribunal and was therefore excluded from the obligation under s.424A(1) by s.424A(3)(b) of the Act.

6. Further, Mr Knowles submitted that the DFAT information was not required to be put to the applicant pursuant to s.424A of the Act for three reasons. First, the information was held by the Tribunal to be “equivocal” and “of little assistance” ([102] at CB 174), and thus could not be said to engage the operation of s.424A of the Act as it was not information that the Tribunal thought would be the reason, or part of the reason, for affirming the delegate’s decision.

7. Further, the information contained in the DFAT report, when properly construed, was not adverse to the applicant’s claims. As the information didn’t contain “… a rejection, denial or undermining of the claims” (SZBYR at [17]) the Tribunal was not required to put it to the applicant.

8. Finally, the only part of the DFAT information that arguably was adverse to the applicant’s claims was the statement that “forged documents do exist”. That information was generic country information, not in personam information, and was therefore excluded from the Tribunal’s obligation under s.424A of the Act by the operation of s.424A(3)(a).

9. During the hearing before the Court leave was granted to the parties to make further submissions in relation to particular two, namely the matter of the DFAT report.

10. The Minister submitted that WALA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1784 (“WALA”) at

    
    

    [54] – [59] may stand in answer to the submission that s.424A(3)(a) of the Act excludes from the operation of s.424A(1) the “generic” information contained in the DFAT report about the availability of forged documents. Nonetheless, WALA leaves undisturbed the Minister’s remaining two arguments.

11. The applicant submits that the approach in WALA at [54] – [59] supports his position that s.424A(3)(a) is not available to the Minister in relation to this information because the information extracted in the Tribunal’s decision at [80] (see [50](2) above) are answers directed to questions of a specific nature about him.

Consideration

1. Dealing first with particular one. While the presentation of the argument relevant to this particular involved some circumlocution, what the thrust of the attack came down to was that the Tribunal made a particular finding based on information that was not given, in writing, to the applicant for comment pursuant to the Tribunal’s obligation arising from s.424A(1) of the Act.

2. It must be said as a general observation that, on any plain reading of the material before the Court, the applicant’s case was based on misrepresentations of what actually occurred at the Tribunal hearing (even on the account presented by Ms Pashmforosh), misunderstanding of the Tribunal’s reasoning and a failure to properly engage with relevant authority.

3. First, the impugned paragraph in the Tribunal’s decision record ([85] at CB 172) must be read in context of the Tribunal’s decision record as a whole, and in particular its analysis as revealed in its findings and reasons.

4. Second, it is well to be reminded of the nature and requirements of the section which the Tribunal is said to have breached. Section 424A(1) of the Act compels the Tribunal to give, in writing (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162), to an applicant, “clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the delegate’s decision” [emphasis added].

5. Third, the meaning of “information” for the purposes of s.424A(1) was explained by the High Court in SZBYR at [17] – [18]:

   “[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration ‘would be the reason, or a part of the reason, for affirming the decision that is under review’. The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal's published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The ‘reason, or a part of the reason, for affirming the decision that is under review’ was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

   [18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’.

   ‘does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc’.

   If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”

1. Fourth, to the extent that the applicant’s arguments made reference to s.424AA, that section is only engaged, if the Tribunal chooses to do so, as a facultative mechanism if s.424A is engaged. Any alleged breach of s.424AA cannot reveal jurisdictional error of itself. If the Tribunal fails to comply with any requirement of s.424AA in circumstances where s.424A(1) is engaged, and the Tribunal does not otherwise act to comply with that obligation, then jurisdictional error will result, but in relation to s.424A (SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46, (2009) 174 FCR 415 (“SZMCD”)). If s.424A is not engaged then the matter ends there (SZMCD).

2. Fifth, as will be seen below, the applicant seeks to rely on VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, but makes no reference to the context within which the High Court endorsed the relevant reasoning of the majority in that case.

3. Sixth, while the Tribunal’s decision record may assist to inform as to what the Tribunal considered would be the reason, or part of the reason, for affirming the delegate’s decision (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopsis J), as the High Court plainly said in SZBYR, the relevant statutory criterion to which the Tribunal must have regard did not “… turn on, ‘the reasoning process of the Tribunal’, or ‘the Tribunal’s published reasons’” (at [17]).

4. Further, whatever the criterion, or criteria, to “be found elsewhere in the Act”, the “operation of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case” (at [17] of SZBYR).

5. In this latter light, the applicant’s starting point, with a part of the Tribunal’s decision record and without anything further of substance, ignores that fundamental part of the explanation of the operation of s.424A of the Act provided in SZBYR.

6. It also, and further, betrays the obvious weakness in the applicant’s case. No matter how the applicant may seek to obfuscate his attack, to divert attention with alleged Tribunal misunderstandings, or interpretation mistakes (see also below for the difference between mistakes in interpretation and an inadequate level of interpretation), what remains is that what is set out at [85] (at CB 172) of the Tribunal’s decision record is exactly the Tribunal’s subjective appraisal, its thought process and its determination in relation to one part of the applicant’s claims. As such, it is not “information” for the purposes of s.424A(1).

7. The applicant attempts to overcome this deficiency in his case in two ways. One, that the Tribunal did not give to the applicant the information that it used to ground its findings at [85] (at CB 172) and two, that the Tribunal misconstrued the applicant’s claims at the hearing.

8. The applicant submitted that the information used to ground the Tribunal’s finding at [85] came from country information to which the Tribunal said it had researched and read. The applicant seeks to particularise this with reference to the transcript of the hearing at T 5/74: “Tribunal Member: Also, I have my own country research”, and T 13/66 – T 14/66:

   “Tribunal Member: You know I read quite a little bit – I mean I read about – you gave me country information about the demonstration and a read quite a little bit about of people attending the demonstration, who have been arrested, detained and a number of those people, or some of those people have sought protection in Turkey. So, when you got to Turkey why you did not seek protection there?”

9. Those references do not assist the applicant. At T 5/74 the Tribunal was clearly making introductory remarks as to the range of material available to it. It is the case that the Tribunal did make reference to having done its own “country research”. But there is nothing to show, nor did the applicant attempt to link this to anything other than generic country information of a non impersonam nature (note: this is in relation to particular one only).

10. In this sense, even if it could be said that s.424A(1) of the Act was engaged, in the absence of any particular reference such “country research” would be caught by the exception in s.424A(3)(a) of the Act.

11. At T 13/66 the Tribunal did refer to having read “quite a little bit… about… country information”. However the Tribunal subsequently explained that this was about the demonstration at which the applicant said he and his wife attended, and about persons who subsequently sought protection in Turkey.

12. Even though the applicant’s submissions made no reference to it, the Tribunal subsequently gave the applicant the substance of this information at the hearing. It was information about persons who participated in the demonstration and then went to Turkey and sought asylum there. The Tribunal, not unreasonably, asked the applicant why he had not done the same. The Tribunal later asked the applicant why he had in fact embarked on a far more uncertain course of travelling to, and seeking protection in, Australia. Further, the “information” was said to be about the authorities attitude to the demonstrators and that they did “not discriminate between males and females”, and about the right to subsequently work in Turkey (see at T 16/66, and earlier at T 15/66).

13. There was nothing in that information directly about passports. Even if s.424A(1) was at first seemingly engaged, s.424A(3)(a) applied to exclude the obligation under s.424A(1) of the Act. In any event, none of that supports the applicant’s contention that it “grounded” the findings at [85] of the Tribunal’s decision record (CB 172).

14. For the sake of completeness, the applicant’s submission that the Tribunal’s references at the hearing “may also have included” information about passport procedures in the delegate’s decision (at CB 76) does not rise above speculation. Again, even if it did, s.424A(3)(a) of the Act would apply to any such information in the circumstances.

15. While the applicant contended that the proposition in [85] (at CB 172) was “higher than mere subjective appraisal, thought processes or determination”, he never explained how or why that is the case or how the extracts of the transcript to which he referred supported that submission.

16. The second avenue suggested to overcome the central deficiency in his attack (see [71] above) was that the Tribunal misconstrued the applicant’s claims at the hearing. That is, that the Tribunal proceeded at the hearing on a “false premise” that the applicant left Iran using his Iranian passport. A passport which he actually claimed to have obtained in Turkey.

17. One aspect of the applicant’s submissions before the Court can be generally accepted. That is, that the applicant’s various accounts as to his leaving Iran, entering Turkey, obtaining a French passport there and his travel to Australia via Singapore were generally consistent (except for the delegate’s summary – see [82](3) below).

18. The following can be relevantly extracted from each account:

    1)The Entry Interview on 21 February 2010 (CB 4):

    i)He “illegally” escaped from Iran to Turkey.

    ii)Once in Turkey, the applicant was given an Iranian passport in his own name.

    iii)He was given a French passport by a smuggler a few days before he left Turkey.

    iv)He used the Iranian passport to leave Turkey.

    v)The Turkish police checked his Iranian passport three times.

    vi)He destroyed the Iranian passport on the flight.

    vii)He used the French passport to enter Singapore.

    2)In the written statement submitted with the protection visa application (CB 28):

    i)The applicant’s brother-in-law arranged for smugglers to get him a “false passport in Turkey”. [It was not clear whether this was a reference to the Iranian or French passport.]

    3)The delegate’s summary of the applicant’s claims (CB 70):

    i)“He left Iran without using his own passport or passing through border control and travelled overland to Turkey.”

    4)The summary of the applicant’s interview at the airport upon arrival in Australia contained in the Tribunal’s decision record ([18] at CB 160):

    i)The applicant travelled from Iran to Turkey by road and was given a “false” French passport by a smuggler.

    ii)He used his Iranian passport to leave Turkey and destroyed that passport on the aeroplane.

    iii)The French passport was used by the applicant to enter Singapore.

    5)The Tribunal’s summary in its decision record of the applicant’s claims in his protection visa application ([20] at CB 160):

    i)The applicant arrived in Australia on 20 February 2010 with a “false” French passport.

    ii)“He had an Iranian passport which he destroyed on route”.

    6)The Tribunal’s account of the hearing before it as contained in its decision record (see relevantly at [40] – [43] and [59]).

    i)The applicant had a “current Iranian passport which he believed would expire in about three years’ time” ([40] at CB 163).

    ii)He used his Iranian passport to leave Turkey and destroyed it on route to Australia ([40] at CB 163).

    iii)He “transferred to using his forged French passport en route from Singapore to Australia” ([42] at CB 163).

19. It appears, on the various evidence, that the applicant had an Iranian passport that was valid beyond the period he was in Turkey. He gave other evidence that he was “issued” with an Iranian passport in Turkey. It was unclear whether that was a new passport or a renewal of his previous passport. Either way, it is immaterial because the Tribunal’s finding is based on the applicant having an Iranian passport at the time he left Turkey and that informed its finding on how he entered Turkey. Whether that Iranian passport was the same, or a renewed or new passport, is not material to the Tribunal’s analysis.

20. In essence, the applicant launched two contradictory attacks in relation to this. The first, essentially expressed in written submissions, was that the transcript of the Tribunal’s hearing reveals a “fundamental disconnect” between the Tribunal and the applicant at the hearing. (See generally T 21/74 to T 24/74, but in particular as per [25](b) of the applicant’s written submissions):

    “Tribunal Member:  Have you ever had an Iranian passport?

    Interpreter: Yes.

    Tribunal Member: Can you tell me whether was current when you came to Australia or whether it expired?

    Interpreter: Was current.

    …

    Tribunal Member: When you are travelling you had French passport and your Iranian passport both with you.

    Interpreter: At the beginning of my trip, yes.

    Tribunal Member: Can you remember the details of your Iranian passport? When does it expire?

    Interpreter: I believe still it has another 3 years validity because it is normally valid for 5 years and I got it 1 or 2 years ago. So, should have another 3 years.

    Tribunal Member: Have you travelled on that passport?

    Interpreter: With that passport, no … As I did exchange that passport, I travelled with my previous passport.

    Tribunal Member: So, you renewed your passport?

    Interpreter: Yes.

    Tribunal Member: Where have you travelled to?

    Interpreter: Turkey.”

21. The submission was that the Tribunal member proceeded at the hearing without the benefit of having acquainted herself with the earlier material, in particular what was said in the entry interview (at CB 4). Namely, that upon arrival in Turkey he was issued with an Iranian passport under his real name and that the Turkish authorities had checked that passport three times and had not determined that the passport was fake (see the applicant’s written submissions at [25](b)).

22. The argument was that the Tribunal proceeded on a “false premise”. In this context s.424AA of the Act was not “enlivened” (or not properly utilised) because clear particulars were not put to the applicant of information used to impeach his credibility. Other breaches were also said to have occurred which, without actual reference, appear to relate to s.424AA(1)(b)(i) and (iii) of the Act.

23. The obvious difficulty for the applicant in this regard is that it misunderstands the facultative relationship between s.424AA and s.424A of the Act. The former is not “enlivened” in some abstract way. As is made clear in s.424A(2A) of the Act, the use of s.424AA relieves the Tribunal of the obligation to give, in writing, information pursuant to s.424A(1), if it gives this information orally under s.424AA of the Act (SZMCD).

24. The applicant may have been correct to say that s.424AA was not “enlivened” if what had been meant was that the obligation in s.424A was not enlivened in the first place. The applicant’s attempt to argue that the information should have been properly given so that the requirements of s.424AA were met fails to reveal error.

25. What is also being asserted is that at the hearing the Tribunal did not understand the applicant’s claims because, in part, it did not have regard to the earlier material. But in those circumstances, the material that the Tribunal did rely on, logically given the submission, was the applicant’s own evidence given at the hearing for the purpose of the review. Therefore, even if s.424A(1) of the Act was initially engaged, s.424A(3)(b) would serve as an exclusion to any such obligation. The argument that the Tribunal failed to properly follow procedure in s.424AA (that is, for example, to advise the applicant he may have more time to comment on the information (s.424AA(b)(iii)) is patently nonsense when the argument is also that the information was not given in the first place. Any such complaint can only relate to s.424A. Section 424AA is, as set out above, one facility by which the Tribunal may discharge its obligation in s.424A. It does not create an additional obligation in that sense, as the applicant’s submissions imply or assert.

26. The other difficulty for the applicant is that what is variously described as the Tribunal’s “false premise”, or the “fundamental disconnect”, is not made out on the applicant’s selective quotes from the transcript.

27. The applicant relied on quotes taken from T 21/74 to T 24/74, T 11/66, T 35/66 and T 56/66 to T 58/66 (see also later for claims of interpretation errors). What he does not refer to are relevant exchanges from T 19/74 to T 39/74.

28. The applicant’s attack in this regard also suffers from the deficiency of seeking to argue a breach of s.424A of the Act by reference generally to material existing prior to the hearing and comparing this with what was said to have been reasoned by the Tribunal in its subsequent analysis. But no attempt is made to specifically link that material to what the Tribunal actually reasoned at [85] (at CB 172), and the information on which that reasoning was based.

29. The applicant’s attempts to obfuscate do not hide the very simple and clear point made by the Tribunal at [85] (at CB 172). That is, that it reasoned that if the applicant was prepared to leave Turkey on an Iranian passport (the applicant gave this evidence to the Tribunal at the hearing – see T 30/74 to T 31/74), then he would have entered Turkey on an Iranian passport. There would have been no reason in the circumstances not to have done so. Plainly the Tribunal considered that if the applicant was not concerned that he would be detected on exiting Turkey, therefore there would be no reason for him to be so concerned on entering Turkey.

30. Attempts by the applicant now to take issue with the Tribunal’s finding (although, it must be said, not in any clear way, as for example, by pointing to his evidence that the smuggler told him to destroy the passport, or that his brother-in-law arranged his entry into Turkey), do not rise above a challenge to the Tribunal’s factual finding. The applicant’s attack seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). It does not reveal any breach of s.424A of the Act.

31. The Tribunal’s relevant finding ([85] at CB 172) that the applicant did not leave Iran illegally as he claimed is its appraisal of the evidence before it. That finding does not fall within s.424A of the Act for the reasons set out above. The information on which that finding was based was information given to the Tribunal at the hearing. As a result, even on the applicant’s position it could be said that s.424A(1) of the Act was engaged, s.424A(3)(b) would operate to exclude it from the operation of s.424A(1) of the Act.

32. To the extent that this line of submission may imply that there was material before the Tribunal to which it did not have regard (for example, the entry interview or the “initial application” – see [14] of the applicant’s written submissions), then the grounds as pleaded make no reference to any failure to deal with an aspect of the applicant’s claims in the manner explained in such authorities as WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, where any such failure could lead to jurisdictional error.

33. Further, no such argument was developed before the Court. In fact, the oral submissions on this point contradicted the claim as made in written submissions, in spite of the claimed reliance on those submissions.

34. In oral submissions the applicant argued as follows. The Tribunal invited the applicant to a hearing because it could not be satisfied on the material before it that the applicant, in essence, met the definition of “refugee” as set out in Art.1A(2) of the Refugee Convention. The Court was taken to the transcript of the Tribunal hearing, and in particular to T 6/74 and immediately following. There the Tribunal told the applicant that where it cannot be satisfied on the “… papers alone the next step is to invite you to a hearing.”

35. Earlier, the Tribunal had referred to the applicant’s application for a protection visa (T 3/74), the documents the applicant provided in support (T 4/74), the delegate’s decision (T 4/74), the application for review to the Tribunal (T 4/74), submissions provided by his advisor (T 5/74), country information about “the protests”, and the Tribunal’s “own country research” (T 5/74). The Tribunal’s statement about the inability to be satisfied that the applicant met the definition of “refugee” was made in that context (T 6/74).

36. The argument was that that material contained “information”. It also included information about the “Summons” (see below), and the DFAT report (particular 2 to ground one). Such information was not the subject of a “s.424A letter”.

37. I could not see that the argument was developed beyond this point on the issue of a claimed breach of s.424A of the Act, and that submission diverted at this point to the other grounds.

38. What is left is that the Tribunal had, at least at the commencement of the hearing (8 June 2010) and, although not submitted as such, at the time of the invitation to the hearing (CB 84 to CB 85), information which was presumably part of the reason for affirming the delegate’s decision, and that information was not the subject of a “s.424A letter”. How it was information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision was left undeveloped.

39. It is important to note (as referred to above) that the Tribunal’s obligation in this regard arises at some point in advance and independently “… of the Tribunal’s reasoning on the facts of the case” (SZBYR at [17]). It is therefore open to the applicant to point to that material, as such, as forming some basis for this attack.

40. There are however a number of difficulties which were not explored in his submissions (except perhaps as mere general assertions) which in any event provide the answer to the attack.

1. First, the High Court in SZBYR (at [15]) relevantly explained:

   “This then requires close attention to the circumstances in which s 424A is engaged. Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of ‘particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. What, then, was the ‘information’ that the appellants say the Tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite ‘information’ as being the ‘inconsistencies’ between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.

2. The applicant’s submission in reality did not rise above a general assertion that the Tribunal might have thought that these matters were relevant to the decision under review. There was no argument, or reference, to any other evidence that this was “information” that the Tribunal considered “would be the reason, or a part of the reason, for affirming” the delegate’s decision.

3. Second, as the High Court made clear, the obligation in s.424A of the Act must be understood in light of the use of the words “would be” in that section. That is, that the use of the future conditional tense posits a temporal focus in advance of the making of the decision. That does not mean that any general reference to the sources of information before it, made in advance of the final consideration, inevitably elevates any such references to fit the test required. Plainly something more is required to do that. The applicant was silent in that regard.

4. Third, and in any event, even if it could be said that the Tribunal did mean to specifically include the information in relation to his entry and exit from Turkey in its introductory comments, the specific references to these sources by the Tribunal were references to information contained in material given by the applicant, in writing, for the purposes of the application for a protection visa, information given by the applicant for the purposes of the review and general country information. [Note: the date of the hearing, and therefore the date of the Tribunal’s comments relied on now by the applicant, was 8 June 2012. The DFAT report – see particular two – could not have been part of this information as it post-dated the hearing (20 July 2010) (CB 169).]

5. In these circumstances, all of this “information” falls within the exceptions set out in s.424A(3) of the Act. Namely, s.424A(3)(ba), (b) and (a) respectively.

6. At the part of the transcript relied on by the applicant now, in circumstances where the Tribunal made specific references to other sources of information, no reference was made by the Tribunal to the entry interview. The information in the entry interview does not fall within the exceptions to s.424A of the Act. However that part of the transcript, on balance, does not provide evidence to support the applicant’s claim, even if the applicant could overcome the difficulty set out at [104] – [109] above.

7. It is also the case that information which an applicant gives orally to delegate is not caught by the exception in s.424A(3)(ba) of the Act. But the Tribunal’s reference at the hearing (relying on the applicant’s transcript) to the delegate’s decision record, even if it was a reference to information concerning the applicant’s entry and exit from Turkey, was information contained in the record arising from what the applicant had given in writing (see CB 70.3). It fell within s.424A(3)(ba). The Tribunal’s “summary” of the interview with the delegate contains no such specific reference (CB 70.4).

8. In all therefore, to the extent that ground one relied on particular one, it is not made out. [The errors in interpretation at the hearing alleged in submissions are dealt with below. For the reasons given there, when read in context of the above, they also do not assist the applicant in relation to this ground.]

9. The second particular to ground one asserts a breach of s.424A of the Act because it is said that the Tribunal relied on information contained in a report from DFAT without giving the applicant the opportunity to comment on it.

10. The circumstances giving rise to this are, relevantly, as follows. The applicant claimed to have attended with his wife and daughter at a particular demonstration in Iran (the Ashura protests). A group of men opposed to the demonstrators (the Basij) attacked the demonstrators. His wife was hit. He ran to protect her. He pushed one of the men. That man was injured. The applicant was recognised. He left Iran after Basiji came to his house looking for him (CB 27).

11. In written submissions, dated 7 June 2010, the applicant’s adviser stated that the applicant’s wife had told him, in a telephone conversation in May 2010, that the Basiji had come to their house and asked why he had not surrendered to them in answer to a Summons issued by the Revolutionary Court (CB 92.1). A copy of that Summons was provided at the hearing, and a translation provided subsequently on 15 June 2010 (see CB 152 for the translation of that Summons).

12. In its decision record, Tribunal noted the Summons in setting out the material before it ([73] at CB 167). The Tribunal also recorded that it sought advice from DFAT on 25 June 2010 in relation to a number of documents submitted by the applicant, including the Summons ([78] at CB 169). It provided background information to DFAT ([79] at CB 169).

13. DFAT’s response was set out at [80] (CB 169 to CB 170). The Tribunal’s relevant consideration is in [101] to [105] at CB 174.

14. It must be said that the applicant’s written submissions were of no assistance in the resolution of this point. No reference was made to this particular in the written submissions. It appears that this particular “emerged” with the further amended application filed in Court on the day of the hearing.

15. It must also be said that oral submissions before the Court did little to assist the Court to understand this complaint. Those submissions, for a large part, focused on the Tribunal’s consideration of the material. Again, this approach appeared to ignore what was relevantly said by the High Court in SZBYR, and the need to focus on the temporal aspect of the emergence of the obligation in s.424A of the Act. That is, that it is antecedent to the Tribunal’s reasoning. Nor, importantly, was any attempt made to show how focusing on the Tribunal’s actual reasoning could help inform whether the obligation was engaged at any antecedent point.

16. Before proceeding further, it is important to note the Minister’s position. Initially, the Minister’s position appeared to argue for the exclusion of the operation of s.424A(1) of the Act. That is, that the DFAT report surrounding the Summons fell within that exclusion because the report concerned “generic” information about forged Court documents in Iran.

17. In subsequent written submissions (leave was given for this purpose at the hearing) the Minister submitted that WALA at [54] – [59] per Siopsis J was relevant to the applicant’s submission.

18. In light of the Minister’s “concession”, it is not necessary for this Court to explore this particular aspect further. It is not for the Court to make out the Minister’s case for him and to consider whether the subject, and circumstances, of the report in WALA were similar such as to apply in the current circumstances. A matter which, at first blush, remains unclear.

19. In any event, the Minister’s reliance on other parts of his submissions reveals that WALA has no bearing on the outcome of this case for other reasons. The applicant’s brief supplementary written submissions were of no assistance in the resolution of this complaint.

20. First, the applicant did not explain how and when it can be said that the Tribunal considered that the DFAT report, or more particularly the information in it, would be the reason, or a part of the reason, for affirming the delegate’s decision.

21. Nor did the applicant submit that by writing to DFAT seeking advice, the Tribunal, as at 25 June 2010, considered that any response would be the reason, or a part of the reason, for affirming the delegate’s decision. It is not for the Court to design that argument for him. However, even here the difficulty of course, amongst others, is that it argues that the Tribunal considered certain information to be a reason for the decision even before seeing that information, let alone before it came into existence.

22. The Tribunal received that information on 20 July 2010, that is after the hearing. It is here, in the circumstances, in my respectful view that Federal Court authorities that provide that the Tribunal’s reasoning may help to inform what the Tribunal considered to be the reasons for affirming the delegate’s decision are apt and of assistance.

23. Second, the applicant’s oral submissions are that, with reference to the Tribunal’s analysis and consideration, the Tribunal used the DFAT report adversely to the applicant’s interests. That submission, again, fails to understand that the Tribunal’s appraisals of the DFAT report and the relevant parts of the applicant’s evidence and circumstances are not “information” for the purposes of s.424A(1) of the Act (SZBYR). That alone disposes of the basis of the applicant’s submissions.

24. But further, and third, I agree with the Minister that, when its decision is read fairly, the Tribunal did not consider that the information would be the reason, or a part of the reason, for affirming the delegate’s decision. [To the extent that the published reasons can assist in informing what the Tribunal considered at an antecedent time.] In particular, the Tribunal found DFAT’s response to be “equivocal and of little assistance” ([102] at CB 174).

25. Fourth, I also agree that the information did not, in its terms, contain “a rejection, denial or undermining” of the applicant’s claims. While the Tribunal found the advice as a whole to be equivocal, the report in relation to the Summons itself was that “it appears to be genuine” (CB 169.9). That is a statement positive to the applicant. Further, that forged documents do exist, necessitating careful assessment of the applicant’s Summons, does not offend the descriptor and explanation contained in SZBYR at [18].

26. In all, and when taken in light also of the consideration below of parts of ground two, ground one is not made out.

Ground Two

1. Ground two alleges a breach of s.425 of the Act. The particulars assert that the “translation” (interpretation) at the hearing “was flawed” and did not adequately convey the Tribunal’s questioning such that the applicant was not provided with a meaningful opportunity to comment.

2. This is particularised in the ground with reference to T 17/66 to T 19/66 (regarding the applicant’s wife) and T 34/74 to T 35/74 and T 59/74 to T 60/74 (regarding the circumstances surrounding the applicant’s “illegal” departure from Iran).

3. There was no dispute between the parties that WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 (“WACO”), and Appellant P119/2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2003] FCAFC 230 (“Applicant P119”) assist in the resolution of this ground. While the applicant’s submissions ranged over such authorities as Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 (“SCAR”) at [33] – [37], Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6, Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCR 359 and VBAB v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100, the test expressed in Applicant P119 (at [17] per Mansfield and Selway JJ) is directly relevant to the current circumstances:

   “(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.”

4. What must also be noted is that, while a “substandard” level of interpretation may lead to jurisdictional error, any such errors made by the interpreter need to be “… material to adverse conclusions drawn by the Tribunal” (Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [85] per Perram J).

5. As to the adequacy of the level of interpretation, as was said in WACO: “… it sufficies that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated” (at [66] per Lee, Hill and Carr JJ).

6. What was emphasised in oral submissions by the applicant was that the transcript of the hearing was “replete” with examples of errors in interpretation, and was “riddled with errors in interpretation.” The applicant’s position was that he was “not urging perfection”, but that the errors were such that the standard of interpretation at the hearing was so inadequate that the applicant was effectively prevented from giving his evidence. Second, that certain errors made by the interpreter were material to the Tribunal’s conclusions.

7. Three matters are of preliminary note. First, the applicant does not contend that the Tribunal necessarily realised, or knew, that there were difficulties with the interpretation. Here the applicant says that the statutory obligation imposed on the Tribunal by s.425 of the Act is to provide a real and meaningful invitation to the hearing, which encompasses a real and meaningful opportunity to give his evidence (see SCAR and Applicant P119).

8. Second, in written submissions (at [27]) the Minister argued that aspects of the transcript were inadmissible for a variety of reasons However, at the hearing before the Court no objection was put to the reading of either affidavit of the person preparing the transcript (Ms Pashmforosh). In these circumstances, I proceeded on the basis of the relevant evidence as presented.

9. Third, I understood the applicant’s case to proceed on the bases of two separate “limbs” of the relevant test as set out in Applicant P119 (and see also in Perera as to the first) (see at [133] above). I agree with Mr Prince that the two are distinct.

10. For ease I have tabulated the applicant’s references with the consideration as against each of the two limbs of the relevant test. It is of note that while some deficiencies in the interpretation were only raised in written submissions, others were only raised orally before the Court. For clarity, I have noted whether the interpretation error or omission was dealt with in written submissions, oral submissions or both.

11. In addition, I note that there were a number of deficiencies in the presentation of Ms Pashmforosh’s evidence.

    1)The transcript of the hearing, annexed to her affidavit of 18 January 2012 and marked FP2, did not bear sequential page numbers. Rather, the pages were numbered as though the transcript was two separate documents, one of 74 pages, the other of 66 pages.

    2)Second, the transcript failed to provide a complete translation of the applicant’s answers to the Tribunal’s questions. Rather, for the most part, it set out the applicant’s evidence in Farsi script. In order for the Court to understand the applicant’s evidence before the Tribunal, it was necessary to have regard to Ms Pashmforosh’s affidavit of 31 March 2012 which set out the applicant’s evidence in English text, however, unhelpfully, only for selected portions of the hearing.

    3)Third, the transcript, in parts, sets out in Farsi text both the applicant’s comments and the interpretation said to have been provided. As a result, it was often unclear whether the Farsi text related to an answer given by the applicant, or the interpretation of the Tribunal’s speech provided to the applicant. For example at T 59/66 two paragraphs of Farsi text are set out. The transcript does not indicate whose speech those paragraphs record. When regard is had to annexure ‘B’ of Ms Pashmforosh’s affidavit of 31 March 2012, it appears that the first is the interpretation of the Tribunal’s question provided to the applicant, and the second is the applicant’s response.

    4)The transcript of the hearing contained comments, coloured red and titled “Farzaneh’s note”, which alleged various interpretation errors (I note on one occasion the note itself was in Farsi – T 13/74). Again, it was necessary for the Court to refer to Ms Pashmforosh’s later affidavit of 31 March 2012 in order to read what the interpreter was alleged to have said. Again, that later affidavit only provided translations for select parts of the hearing.

    5)Fifth, it was not always the case that the “note” within the transcript accurately described the error allegedly committed by the interpreter when regard was had to the translation provided in the subsequent affidavit of Ms Pashmforosh. For example at T 18/66 the “note” provides that: “this bit is missed out ‘that you both attended and the demonstration and the only additional fact that you are claiming is that you hit a Baseeji’”. Yet, when regard is had to the annexure to Ms Pashmforosh’s affidavit of 31 March 2012, the interpreter is said to have said “If you and your wife have both participate in the demonstration, and both of you have been seen in the demonstration – the only thing is that you have hit a Baseeji”.

    6)Finally, Ms Pashmforosh’s transcript of the hearing, on occasion, commented on the interpretation error or gave her opinion of its impact or effect on the applicant. For example, “Interpreter does not mention ‘the delegate’ she says ‘they’. How should [the applicant] know who they are?” (T 4/74). This hardly meets the standard required of a professional translator. It may reveal a partisan attitude.

12. In light of the above, it is not clear why the Minister chose not to challenge the evidence of Ms Pashmforosh or to, at least, provide another transcript of the hearing addressing these deficiencies. This is of course a matter for the Minister. But it left the Court in the position of spending far more time than necessary in “working through” these deficiencies.

13. The above reflects the applicant’s poor presentation of his case and, in the sense referred to immediately above, the unhelpful approach of the respondent.

14. It is in this light that I considered what the applicant said were the errors in the interpretation at the Tribunal hearing. That is, that the standard was so inadequate that the applicant was effectively prevented from giving his evidence and, separately, that some of the errors made were material to the Tribunal’s conclusion. Absent what were said to be the “minor issues of no significance”, the applicant put forward the following as establishing his case.

15. The errors asserted are as follows:

TABLE 1: Interpretation mistakes alleged to be material to the Tribunal’s disposition of the review.

1. “Tribunal Member: So, I find it difficult to come to terms with when you read about the sort of information to find that you claim that you just left your wife when she was just as vulnerable as you, because she also had been at the demonstration. The country information does not say that they only arrested people who had harmed a Baseeji, they arrested people who were at the demonstrations” (T 17/66).

Interpreter: “It is strange to me, that you abandoned your wife there and left. The information that we have about Iran, does not say that necessarily only those who have caused damages or those who have attacked will be arrested. They arrest everyone who has participated in the demonstrations” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([38](a) of the applicant’s written submissions and oral submissions.)

2. “Tribunal Member: I have difficulty with the idea that somehow they are targeting … if you wife was there and if you went to the demonstration and your wife went to the demonstration as you claimed and you were both sighted by the Baseejis and the only additional fact that you are claiming is that you hit a Baseeji” (T 17/66 – T 18/66).

Interpreter: “If you and your wife have both participated in the demonstration, and both of you have been seen in the demonstration – the only thing is that you have hit a Baseeji.” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([17](c) of the applicant’s written submissions and oral submissions.)

3. “Tribunal Member: I have difficulty accepting what you told me because that seems to me that one she was equally if you counted as it is, she was equally at risk as you and you run and left her which is extraordinary, and secondly they could have arrested her if they were looking to arrest people, which country information indicated that they were. They could have and there was no reason when they entered to the house, but they did not arrest her at that point of time.” (T 18/66 – T 19/66).

Interpreter: “The information that I have indicates … it is hard for me to accept that they came there … you were not there, but your wife was in the demonstration, and as much as you, she was in danger of being arrested or something like that. You abandoned her there and left and they did not arrest your wife. However, the information from the country says that they could have arrested her and it would not have made a difference to them.” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([17](d) of the applicant’s written submissions and oral submissions.)

4. “Tribunal Member: The other difficulty or concern I have is, it seems to me … my point is given that you weren’t anticipating any of this you know you said you went innocently to Ashura, with a religious sense in mind that so quickly within two days, your brother organised for you a people smuggler; the people smuggler organises a French passport for you; You travel in what’s clearly a well-planned way of coming to Australia” (T 35/66)

[Note, the bold text was said not to have been translated to the applicant.]

([18](h), [25](d) and [39] of the applicant’s written submissions.)

5. “Tribunal Member: you see, you said you didn’t know much about asylum seeking or you don’t know anything but when you were interviewed when you first arrived in Australia you said you’ve come to Australia to apply for protection or asylum, seems odd that you’d go to Turkey and stay there and you don’t know anything there to apply but you come all the way to Australia to apply for protection” (T 58/66 – T 59/66).

Interpreter: “when they interviewed you at the airport, you said you have come here as an asylum seeker and want to apply for a refugee visa. But the fact that you went to Turkey means that you had information, however, you did not do anything about it there.” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([18](i) of the applicant’s written submissions.)

6. “Tribunal Member: It does not make a sense for me whatsoever. If you had your Iranian passport, there is no need to exceeding – you said you did not anyway, you did not have a forged French passport that you used in Turkey. You did not use it in Turkey – you said you departed on your Iranian passport. So I do not know – where is – why you would think you would be put in jail.” (T 34/74).

Interpreter: “I do not understand that when you left Iran with an Iranian passport, why do you think they may have imprisoned you?” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([18](e) of the applicant’s written submissions.)

1. Items 1, 2 and 3 in the table above concern the applicant’s wife. The substance of the Tribunal statement at item 1 is that, having regard to country information about the demonstration, in particular that the Basij targeted all people who were at the demonstration, not just those who harmed a Basiji (as the applicant claimed to have done), it had difficulty accepting that he left his wife in Iran in circumstances where she too would have been a target of the Basij after the demonstration.

2. While the interpretation now asserted by Ms Pashmforosh is not identical to what the Tribunal member is recorded (with reference to the transcript) to have said, on any plain reading of the two versions, the substance of what the Tribunal said was conveyed. That is, the nature of the country information as to who the Basij targeted,  and his abandonment of his wife.

3. While this was certainly material to the Tribunal’s analysis

   
   

   (see [93] at CB 173 to [100] at CB 174), even on Ms Pashmforosh’s evidence as to what the interpreter said to the applicant at the hearing the substance of what the Tribunal was putting to him was conveyed such that he had the opportunity to understand what was being put against him.

4. Item 2 above, even when not read with what was said in item 1 above, again, has no difference of substance. The thrust of what the Tribunal was putting to the applicant was that both he and his wife were at the demonstration and both were seen by the Basij. The only addition to that was that he said he hit a member of the Basij. That was conveyed.

5. Item 3 above is similar. While there are differences between the two versions, the substance was conveyed. That is, that having participated at the demonstration his wife was in as much danger as he was, yet he left her in Iran. The Basij could have arrested his wife when they subsequently went to his house, but they did not do so.

6. Item 4 above involves the Tribunal’s finding as to how the applicant left Iran for Turkey and then came to Australia (the applicant’s submissions refer to the Tribunal’s analysis at [85] at CB 172). The “error” is said to be the omission in what was interpreted to the applicant. That is that he travelled to Australia in what was “clearly a well-planned way …”. The applicant’s submission was that this omission meant that the applicant was unaware of this “issue” and was therefore denied the opportunity to comment on it.

7. Even if the Tribunal characterised his travel at the hearing as being done in a “well-planned way”, on any plain reading this was not a part of the Tribunal’s finding or analysis at [85] (at CB 172), or indeed elsewhere in its analysis. The thrust of the finding at [85] (at CB 172) was not that he left in this fashion, but whether he left Iran illegally, how he entered Turkey, and how this could be informed by how he left Turkey. This was, on any plain reading of all of the relevant parts of the transcript, clearly discussed with him at the hearing.

8. Any suggestion arising from the applicant’s submission here that travelling “in a well-planned way” was an issue dispositive of the review, in the sense explained in SZBEL, must be rejected. Quite apart from the fact that such a characterisation was not part of the Tribunal’s ultimate analysis. The “issue” here was how he left Iran (illegally or otherwise). That issue was exposed at the hearing, if not at an earlier time.

9. Item 5 above again illustrates that what the Tribunal said and what the interpreter interpreted were not identical. But the substance was conveyed. The issue for the Tribunal was that the applicant said he travelled to Australian to apply for protection, but took no steps to do so in Turkey.

10. At item 6 the impugned part of the interpretation, when read on its own, makes little sense. Even what is said to have been said by the Tribunal is, in part, confused. However, when read in context of what precedes and follows in the transcript, it is clear that this was one small part of the discussion as to how the applicant left Iran, how he entered Turkey, what passports he acquired while in Turkey and how he left Turkey.

11. When item 6 is read in context of the transcript from about T 28/74 to T 39/74, whatever may have been said at the impugned part of the hearing (at T 34/74), the applicant would have understood that what was at issue was how he left Iran and the Tribunal’s concern with his evidence as to how he entered Turkey and what passport he used to depart.

12. It was clear that the Tribunal was concerned to receive an explanation, and clarification, from the applicant about his Iranian passport and the French passport provided by the smugglers. In all, I cannot see that, in the circumstances, the level of interpretation was so inadequate that the applicant was prevented from understanding what was at issue and what was put against him, and that he was denied the opportunity of giving his explanation.

13. If there was some inadequacy in the applicant’s evidence I am not satisfied that, having regard to the applicant’s answers on this matter, it arose from inadequate interpretation. Ultimately the Tribunal understood the applicant’s position in relation to the Iranian and French passports. That was never challenged before the Court. It was just that the Tribunal found his answers (which on the actual questions of the French and Iranian passport it accepted) to be unsatisfactory in terms of supporting his claim to have left Iran illegally.

14. The remainder of the items impugning the adequacy of the interpretation were not put as seeking to show inadequate interpretation in relation to a particular material and critical findings, but that the deficiency in interpretation, when read also with the other items, meant that the applicant was effectively prevented from giving evidence.

15. The matters raised, the differences and omissions, are such that I do not agree that the applicant’s complaint is made out. The following can be said about each item:

TABLE 2: Interpretation errors alleged to reveal an inadequate level of interpretation.

Alleged Interpretation Error

(NOTE: Where the interpreter is alleged to have omitted interpreting something that was said, the omitted part is in bold)

Consideration

1. “Tribunal Member: As I understand, we have somebody sitting here who is an observer who is working at tribunal, is that right for you?” (T 2/74).

Interpreter: “do you have any problem with people at the tribunal” (“Farzaneh’s note” at T 3/74).

(Oral submissions.)

Whether an observer sat in at the hearing, and whether the applicant agreed to that, plainly had no impact on the applicant’s understanding of the case against him and his opportunity to respond. Nor is there anything to show the presence of an observer hindered the applicant’s capacity to meaningfully participate (nor was that alleged before the Court).

2. “Tribunal Member: Now, what we tend to do is work away through the issues I can ask you some questions. When I asked all questions I need to ask you, I will give you this opportunity to make a further statement” (T 10/74).

Interpreter: “When I asked all questions I need to ask you, I want you to reply” (“Farzaneh’s note” at T 10/74).

([16](a) of the applicant’s written submissions and oral submissions).

The transcript reveals that when the Tribunal had asked all the questions it “needed” to ask, the applicant was given the opportunity to make “further statement” (see T 48/66, T 52/66 and T 53/66 and following). Nor was he denied the opportunity to reply to individual questions.

3. “Tribunal Member: When I have asked you all the questions that I need to ask you, I will give you the chance to tell me things that you think I have not covered in asking you questions.” (T 19/74).

Interpreter: “I want the answers to those issues which are not covered and raised in your document” (“Farzaneh’s note” at T 19/74).

(Oral submissions.)

The same as for item 2 above.

4. “Tribunal Member: that is what you face serious harm going back to your country because of one of the five reasons that listed there in the definition.” (T 17/74).

([17](b) of the applicant’s written submissions and oral submissions.)

The subject of the claimed omission (the five Convention grounds) would have been known to the applicant by way of his application for a protection visa (see CB 19), the delegate’s decision (CB 71) and his adviser’s submissions on his behalf (CB 89 to CB 92).

5. “[Applicant]: the only country one can escape to from Iran is Turkey. Other neighbours of Iran are not suitable. I mean one cannot go there.” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

Interpreter: “Turkey is the only country that you can travel from Iran, the other neighbours of Iran are not …” (T 59/66 and in response to the question posed at item 5 in table 1 above).

([25](d) of the applicant’s written submissions.)

This item is linked to Item 5 in Table 1. Further, the thrust of the Tribunal’s comment was conveyed. The only country that the applicant could escape to, from Iran, was Turkey.

6. “Tribunal Member: that’s not my point … my point is you said you left the country in a hurry or difficulties and you didn’t have any information that you could apply in Turkey but when you arrive in Australia and they asked you at your arrival interview at the airport why have you come, and you said to seek asylum. So I have difficulty accepting you could know so little about a county which you have already been to, twice. And come to a country a lot further away and come to seek asylum.” (T 59/66 – T 60/66 and in response to the applicant’s answer at item 5 in table 2)

Interpreter: “This is not my question. My question is that you went to Turkey and you said you did not have any information about seeking asylum. But when you arrived in Australia and when you were interviewed you said you have come here to seek asylum. The issue for me is that you did not seek asylum in a county to which you have been twice before, and then you came all this long way to Australia to say that you have come here to seek asylum.” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012).

([17](i) and [25](d) of the applicant’s written submissions.)

This item concerns the incongruity explicit in the applicant’s evidence that he knew nothing about whether, or how, he could apply for asylum in Turkey, a country to which he had travelled twice in the past and neighbouring his own country, given that, amongst other things, he said he left Iran in a hurry. Yet in the same circumstances he knew how to go about immediately seeking protection in Australia, a country he had never previously visited and that was so far away. First, this was not material or critical to the outcome. Nor does the applicant say that it was. Second, as an example of inadequate interpretation, it stands as an example of the weakness in the applicant’s approach now. The level of interpretation did not have to be perfect. Nor identical. It had to be adequate to the purpose. On what Ms Pashmforosh says was interpreted, the applicant can have been left in no doubt of the incongruity in his evidence as referred to above.

7. “Tribunal Member: But I am trying to understand. You said you left Turkey with you own passport and then switched to French passport; when I asked you why you did that you said that because Turkey and Iran have a good relationship” (T 32/74).

([17](d) of the applicant’s written submissions and oral submissions.)

The claimed omission here plainly has no relevance to the thrust of the Tribunal’s relevant questions and concern. The question here was why he left Turkey using his Iranian passport. That he subsequently “switched” to a French passport was irrelevant to the Tribunal’s concern at this point. In any event, that he subsequently “switched” to a French passport was clear when the impugned item is read in context of what surrounds it at the hearing.

8. “[Applicant]: as I mentioned, if I departed Turkey with a French passport, I would have been caught in Turkey. They may have arrested me and found out that my passport is counterfeit; and they may have done that to me” (Annexure “B” to Ms Pashmforosh’s affidavit of 31 March 2012 and in response to the question posed above at item 6 in table 1 above).

Interpreter: “As I explained to you, if I had travelled with French passport from Turkey, if I wanted to travel with French passport from Turkey and they would found out about that might by my situation, might be the situation they might put in the jail.” (T 35/74).

(Not raised in oral or written submissions but noted in the transcript of the hearing and a translation was provided).

First, this item makes plain that, whatever may be said to have been omitted by the interpreter at item 7 above at that part of the hearing, the applicant plainly understood that what was of importance was his use of his Iranian passport to leave Turkey, and not the French passport given to him by the smuggler. Second, just what the difference in substance is between the two versions is not apparent on any plain reading. Nor was any difference, in substance, put forward to the Court.

1. On the unchallenged (and certainly, untested) evidence presented by Ms Pashmforosh, it must be accepted that some errors and omissions in interpretation did occur. But as set out above, the series of errors and omissions were not such, both individually and cumulatively, to say that the applicant was effectively prevented from giving his evidence. I do not respectfully understand the authorities to have postulated a test of “inadequacy” of interpretation in the abstract, or to be understood in isolation from the circumstances of each individual case.

2. Rather, the standard of interpretation, its adequacy or otherwise, is linked to the statutory purpose of s.425 of the Act. That is, that an applicant is invited to a hearing for the purpose of giving his evidence to the Tribunal. That opportunity must be meaningful in the sense that he can know the case against him and respond to it. This is made clear with the language of the statute, the invitation to “…to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

3. Before the Court, Mr Prince submitted that Mr Knowles had sought to “morph” the two limbs of the test (in Applicant P119) as set out above into one limb. I did not understand Mr Knowles to have done that. Rather, while there may be some commonality of reference, given that the errors alleged were in varying degrees common to both limbs, I understood Mr Knowles to focus on whether the errors in interpretation were such as to prevent the applicant from giving his evidence in relation to the issues in the review and, quite separately, whether the errors were material to the conclusions reached by the Tribunal.

4. It is on that basis that I approached consideration of the alleged errors. While on the evidence some errors and omissions were evident, neither limb of that test is established by those errors.

5. In his further amended application the applicant says he repeats particulars two and three of ground three and seeks to incorporate those particulars as part of ground two. This was never developed before the Court. In light of this, it is unclear how particulars two and three can assist in understanding a complaint of breach of s.425 of the Act as asserted in ground two. I accept Mr Knowles’ submission that the particulars on there own were not capable of comprehension. No further enlightenment was provided by the applicant.

6. If what the applicant seeks to assert is that the issues to which particulars two and three of ground three may be relevant (that is, the applicant’s entry and exist from Turkey and the Summons were not raised with the applicant at the hearing and therefore reveal jurisdictional error in the way explained in SZBEL), this must be rejected. The relevant excerpts contained in the tables above provided the basis for this rejection.

7. Further and in addition, for the reason explained below in ground three, the factual basis for the assertions made in particulars two and three of ground three is not made out.

8. Ground two is not made out.

Ground Three

1. In ground three the applicant asserts jurisdictional error on the basis of unreasonableness. This is particularised in three ways. First, that it was unreasonable of the Tribunal to find that the applicant and his wife were not present at the demonstration as he claimed. Second, there was no evidence to base the Tribunal’s finding as to the manner in which the applicant entered Turkey. Third, the applicant takes issue with the Tribunal not assigning weight to the Summons in circumstances where there was no doubt as to its authenticity. The exact legal basis for that complaint was not clear.

2. In another divergence between the written and oral submissions, and with the grounds in the further amended application, the written submissions make reference to Minister for Immigration & Multicultural & Indigenous Affair v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [68] per Gummow and Hayne JJ and appeared to expand the attack to include irrationality and illogicality. The reference to Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) at [39] appears to be consistent with the ground as pleaded, but reference to Commissioner of Police v Ryan [2007] NSWCA 196; (2007) 70 NSWLR 73 as “favourably quoted” in SZMDS (at [23]) appears to further broaden the attack to include “irrationality”. Ultimately, the written submissions concluded with describing impugned findings of the Tribunal as “arbitrary, capricious, irrational”, as well as “not bona fide”.

3. Nor did the applicant’s oral submissions clarify the exact nature of the attack. For the greater part the submissions referred to illogicality.

4. Whatever the exact nature of the complaint, resolution of this, for this Court, is to be found in SZMDS per Crennan and Bell JJ (particularly at [121] – [131]). As their Honours said at [130]:

   “In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

5. The applicant’s written submissions did not refer to SZMDS per Crennan and Bell JJ. At the hearing the applicant submitted it was unnecessary to distinguish between the joint judgments of Gummow ACJ and Kiefel J on the one hand and Crennan and Bell JJ on the other for the purposes of this case. That was said to be because the impugned findings were so clearly irrational, unreasonable and illogical that even on the joint judgement of Crennan and Bell JJ, error is clear.

6. Paragraph 131 of SZMDS (per Crennan and Bell JJ) provides the direction for this Court to resolve the applicant’s attack, whether it is said to be one of unreasonableness, illogicality, irrationality or otherwise in the Tribunal’s decision.

1. Further the applicant’s submissions did not refer to what Heydon J said in SZMDS (at [78]) which, in my respectful view, is sympathetic to what was said by Crennan and Bell JJ (at [131]). His Honour said (at [78]):

   “The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could be said to reveal an absence of any basis whatsoever for her conclusion.”

2. At the hearing before the Court, the applicant raised three instances which he says reveal that the Tribunal’s decision was illogical, unreasonable or irrational.

3. First, that the Tribunal found that the applicant and his wife did not attend at the Ashura protest as claimed, and did not come to the adverse attention of the Iranian authorities. The applicant argued that there was evidence before the Tribunal (his own evidence, country information and the Summons in particular) that the applicant had come to the adverse attention of the authorities. Further, there was an absence of evidence to the contrary.

4. Second, that there was no evidence to doubt the authenticity of the Summons such as to assign no weight to it.

5. Third, that there was no evidentiary basis upon which the Tribunal based its finding as to how the applicant entered Turkey. In submissions this was expanded to an argument that there was no logical inference that arises from how the applicant left Turkey that could inform how he entered that country.

6. The Tribunal’s above findings were all based on the following reasoning. However, as a preliminary matter, it is important to note that the Tribunal found that the applicant was “not credible in respect of key aspects of his claims” ([84] at CB 172). That conclusion, arising as it does from all the circumstance presented, including the matters now the subject of the applicant’s attack, is necessary to note because it provides an important part of the answer to that attack.

7. The Tribunal is required to reach a requisite level of satisfaction, on the material presented to it, before a protection 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). That level of satisfaction is based on findings of fact made by the Tribunal. What was missing in the applicant’s attack before the Court (although some initial reference is made in written submissions) was recognition that a significant part of the reason for the Tribunal’s ultimate conclusion was that it simply did not believe (for the reasons given) the applicant’s evidence in respect of key claims.

8. In relation to the applicant’s, and his wife’s, attendance at the demonstration, that finding was, in part, based on its assessment of the applicant’s own evidence (see [88] at CB 172). The Tribunal found that evidence to be “unpersuasive”. It gave reasons for this including inconsistencies between his written claims and evidence to the Tribunal (see [88] – [89] at CB 172).

9. Further, in relation specifically to the claim that he came to the attention of the Iranian authorities as a result of his attendance at the demonstration, the Tribunal based its finding on the applicant’s own evidence at the hearing, and found it to be “… incongruent and not in accord with the country information” (at [90] – [92] at CB 173).

10. Nor did the Tribunal find as plausible that the applicant would flee his house when the Basij came, leaving behind his wife and daughter who, on the applicant’s own evidence, also attended at the demonstration ([93] – [95] at CB 173). The Tribunal was not persuaded that, in circumstances where the wife participated in the demonstration, the Basij would focus on him and not also on her as a protestor ([96] at CB 173), particularly in circumstances where country information before the Tribunal was to the effect that the Basij were “brutal” in their treatment of all protestors, including women ([97] at CB 173). The Basij’s treatment of her, based on the applicant’s own evidence, did not accord with that country information ([98] at CB 173).

11. The Tribunal found it “incongruent” that no arrangements were made by his relatives to assist his wife to flee, even in circumstances where it was subsequently claimed she had been detained for two days ([99] at CB 174). It found unconvincing the applicant’s explanation that his wife could not flee because it was winter and too cold ([100] at CB 174).

12. As to the Summons, it was open to the Tribunal to accord it no weight on what was before it. It was open to the Tribunal to regard the DFAT advice as to the genuineness of the Summons in all the circumstances as being “equivocal” ([102] at CB 174). The genuineness or otherwise of the Summons was not the relevant finding made by the Tribunal on which it based its relevant conclusion adverse to the applicant. That finding was that the Tribunal found the Summons not to be of any weight in supporting the applicant’s claim. The Tribunal’s reasons did not include any finding that it was not genuine. Rather it arose from its evaluation of other evidence before it. Namely that the applicant had made no mention of any such Summons before the Minister’s department but rather for the first time at the Tribunal hearing ([104] at CB 174). The Tribunal did not find credible that his wife would have withheld the Summons from him so as not to upset him in circumstances where she had, on his own evidence, communicated “other claimed worrying occurrences” ([105] at CB 174).

13. The Tribunal’s finding that the applicant’s claims in relation to his entry into Turkey, the Summons and indeed more broadly, were not credible arose from its evaluation of his own evidence and country information before it. The applicant’s complaint that there was no evidence on which the Tribunal could base its findings is factually incorrect.

14. Finally, in terms of the relevant test, it was not unreasonable, illogical or irrational for the Tribunal to make findings and reach a conclusion on the material before it which was open to it to make. Minds may differ but, as was made clear by the “majority” in SZMDS, where probative evidence can give rise to minds differing as to the conclusion to be drawn, it is not irrational, illogical or unreasonable for one mind to take a particular view with which another person (in the current case the applicant and his legal representatives) disagrees.

15. In written submissions the attack appeared to be focused on the Tribunal’s reference to country information that “millions of Iranians” had participated in demonstrations around Iran on the day that the applicant said he and his wife participated in the demonstrations (see [86] at CB 172).

16. What was said in written submissions to be unreasonable was the Tribunal’s finding that the applicant had not attended the demonstration in light of that evidence. As the Minister submits, this falls far short of the legal threshold for unreasonableness, and for that matter illogicality and irrationality. This was one piece of country information before the Tribunal. The Tribunal accepted, at least implicitly, that this would support the applicant’s claims. But as is set out above, against this was the Tribunal’s analysis of the applicant’s claims as presented by his own account of events. That is, the applicant’s own evidence.

17. In all, as the Minister submits, the applicant’s attack in this regard is again, in the circumstances, no more that a request for impermissible merits review (Wu Shan Liang). That is, that the Court should interfere to substitute for the Tribunal’s findings those sought, or pressed, by the applicant. This is not an appropriate course for this Court. Nor is it open to the Court to do so.

18. The other particular said to reveal irrationality or unreasonableness on the part of the Tribunal concerns the applicant’s mode of entering Turkey. The applicant argues that the Tribunal found he entered Turkey with an Iranian passport (when he says that he did not), and that this was not a logical inference to draw from his having left Turkey with an Iranian passport.

19. I disagree. The Tribunal found that if the applicant was prepared to present his Iranian passport on departure to the Turkish authorities he would have used an Iranian passport to enter Turkey from Iran because to do otherwise he would run the risk of raising the suspicions of the Turkish authorities as to how he entered Turkey in the first place. Again that conclusion, it must be remembered, was arrived at in the context of the Tribunal having rejected the applicant’s credibility in a number of other key aspects of his claims

20. What the applicant has not satisfactorily explained, in light of the relevant test, is how the Tribunal’s reasoning was irrational, illogical or unreasonable in this regard. Nor for that matter was it arbitrary, capricious or not bona fide. In the circumstances, while another Tribunal member may indeed have reasoned differently and come to a different conclusion, it was open to this Tribunal member to have so reasoned, and found, in the circumstances.

21. Ground three, as particularised, and as submitted in support both in writing and orally, is not made out.

Conclusion

1. In all, therefore, the question for the Court is to consider whether the time for the making of this application, made to this Court outside of the time limit provided for in s.477(1) of the Act, and as amended, should be extended pursuant to s.477(2) of the Act.

2. For the reasons set out above, the applicant has not provided a satisfactory explanation for the delay in coming to his Court. Of far greater moment is that, with the benefit of legal representation, he has presented his arguments as to why his grounds of review require an extension of time. Those grounds are not made out. In great part they seek impermissible merits review.

3. That alone, in the circumstances above, makes an extension of time an exercise in futility. I cannot see any utility in extending time merely to dismiss the application. But far more relevantly, in the circumstances, it is not in the interests of the administration of justice to do so.

4. This leads to the conclusion that the extension of time is to be refused for that reason. As a result, the application for judicial review of the Tribunal’s decision, as amended, is not competent again for the reason immediately above. I will make orders accordingly.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  15 August 2012