SZULJ v Minister for Immigration - [2014] FCCA 2611

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULJ v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2611

Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether Tribunal breach procedural fairness obligations – whether Tribunal misconstrued complementary protection criterion – whether Tribunal failed to consider a claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 38
SZNMJ v Minister for Immigration and Citizenship [2009] FCA 1345; (2009) 112 ALD 284

Applicant:

SZULJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1474 of 2014

Judgment of:

Judge Nicholls

Hearing date:

28 October 2014

Date of Last Submission:

28 October 2014

Delivered at:

Sydney

Delivered on:

14 November 2014

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Ms D Watson of Australian Government Solicitor

ORDERS

The application made on 30 May 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $ 6 , 825.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1474 of 2014

SZULJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 30 May 2014 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal made on 2 May 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

The bundle of relevant documents filed by the Minister is in evidence before the Court (“the Court Book” – “CB”). The Minister has also filed written submissions. These summarise the relevant background to this case and the Tribunal’s decision. In my view they are a reasonable summary of what relevantly appears in the Court Book and for convenience I adopt them for the purposes of this judgment ([2] – [10] of the Minister’s written submissions):
“[2] The applicant arrived in Australia as an unauthorised maritime arrival in May 2010. He claimed to be a person (referred to as AR) who was a stateless Faili Kurd and had been living illegally in Iran for many years. The applicant went through a refugee status assessment and independent merits review process which ultimately resulted in a decision by the first respondent under s 46A(2) to permit the applicant to lodge a protection visa application (RD 69). This he did on 3 September 2013 (RD 71-105).
[3] However, by letter dated 4 December 2013, the applicant was notified that the Department had identified him as an Iranian citizen (referred to as ZG) who had previously applied unsuccessfully for a prospective marriage visa to travel to Australia in 2008 (RD 115-118). He was advised of this information prior to a decision on his protection visa application and was interviewed by the delegate to enable him to comment on this information. He denied that he was the person identified by the Department (see delegate’s decision record at RD 141). The delegate found that the applicant was in fact ZG, who was an Iranian citizen, and his claims were assessed accordingly. The delegate refused the application for a protection visa.
[4] The applicant sought review in the Tribunal (RD 169-175). Before the Tribunal, the applicant maintained that he was AR and not ZG. The applicant also claimed that, in addition to fearing persecution based on him being a stateless Faili Kurd, he would also suffer harm as a returnee from the west, as he would be regarded as pro-Western or a spy. This claim was subsequently expanded to include harm based on being a failed asylum seeker and that this would impute him with an anti-government sentiment. This would be exacerbated by the fact that he was a member of an ethnic minority (see in particular the pre-hearing submission at RD 197-221).
[5] In a submission provided after the Tribunal hearing

(RD 224-228), the applicant raised the issue of the data breach on the Department’s website. This was relied upon to support his argument that he would be at risk as a failed asylum seeker if returned to Iran.
TRIBUNAL DECISION
[6] The Tribunal firstly considered a claim raised that the applicant was suffering from mental health issues and that his mental health had deteriorated due to his lengthy detention and that this be considered in assessing his credibility. It found that he had the capacity to participate in the hearing, noting that there was no evidence from any health professional expressing a contrary view and that he was able to respond to questions appropriately. In so far as it was submitted that his mental state should be considered in considering his credibility, the Tribunal noted that his evidence had been relatively consistent throughout. However, the issues that the Tribunal had concerning credibility were due to his account of being an undocumented Faili Kurd but then also stating that he worked openly for extended periods in Tehran and having been picked up a few times by the Basij but never being asked for his documents (see RD 244-5).
[7] The Tribunal also relied on the information concerning the fact that the applicant had been identified as a failed visa applicant who was an Iranian citizen (RD 245-6). In relation to this, it relied on the facial imagining comparison report which stated that the applicant was the same person as the failed visa applicant, and the fact that the applicant had given the same name and contact details of a person in Australia as the failed visa applicant (although this person had previously been described as a brother, but was now claimed to be a friend of the applicant).
[8] The Tribunal ultimately found that the applicant was, in fact, ZG (RD 245 and 247). The Tribunal had given the applicant an opportunity at the hearing to make any claim based on that identity, but the applicant continued to insist that he was not that person. Having found that the applicant was this person, the Tribunal did not accept that the applicant was persecuted for a convention reason in Iran.
[9] The Tribunal did, however, accept that the applicant will be able to be identified as a failed asylum seeker (RD 246) upon his return to Iran. This would have been the case, irrespective of the data breach, as it was accepted that an involuntary returnee to Iran would be identified as a failed asylum seeker. However, country information relied upon by the Tribunal was to the effect that there was nothing to suggest that the act of applying for asylum would, in itself, trigger mistreatment. The Tribunal also rejected the suggestion that the applicant would be regarded as pro-Western or accused of spying or imputed with having anti-government sentiments as a result of having been living in Australia for 4 years.
[10] For similar reasons the Tribunal was not satisfied that there was a real risk that he would face significant harm if returned [to] Iran.”
Given the applicant’s grounds of his application to the Court (see below), it is important to emphasise from the above that before the delegate and the Tribunal the applicant insisted that his true identity was “AR” and not “ZG”. The Tribunal (and for that matter the delegate) found that, in fact, the applicant was “ZG”. The Tribunal gave reasons for this, reasonably open to it on what was before it.
As noted above, the applicant sent a statement to the Court on 24 July 2014. The statement is in the following terms:
“I have been asked to provide documents showing the need for for support by the scond country, but unfortunately I am from the Kurdish minority group and have no document with me. Since ethnic minority is of five items of the United Nations, I decided to find a new place for living so I run away from the risk of death.
As I have been put in trouble a few times because of not having identity document, and if I go back my life would be in danger I do need your support, please.
Also when all information about refugees in the immigration site was leaked, some friends of mine obtained me. Therefore the Iranian Intelligence organisation would be also able to obtain those information.”
[Errors in the original.]
Given, in particular, that it had attached to it a copy of orders made by the Court which, amongst other things, gave the applicant the opportunity to file written submissions, I took the view and treated this communication as being in the nature of written submissions.

Application before the Court

The application before the Court contained the following grounds:
“1. The tribunal committed jurisdictional error when it made its decision on 2 May 2014 giving the fact that the tribunal denied me procedural fairness by its failure to consider and take into account relevant materials and consideration.
2. The Tribunal misconstrued the complementary protection legislation and misinterpreted section 36(2A) aa of the Migration Act 1958. This is a denial of procedural fairness and a denial of natural justice.
3. The Tribunal failed to have regard to my mental state and did not consider that my mental illness put me in a situation that if returned back to Iran, I will be killed and or tortured and be subjected to degrading and inhuman treatment. This is a jurisdictional error. Giving the fact that as a Kurd I am am a member of a particular social group and the Tribunal had failed to consider and take into account relevant considerations.
4. The Tribunal departed from Australia’s International Obligation under the Refugee’s Convention. Giving the no refoule (no-return) as I will face and be subjected to cruel and degrading treatment and the death penalty will be applied and carried out on me.”
[Errors in the original.]

Before the Court

At the hearing of this matter the applicant appeared in person. The applicant was held in immigration detention on Christmas Island. His appearance was facilitated by video link. He was assisted by an interpreter in the “Persian”, or more particularly, the Farsi language. Ms D Watson appeared for the Minister.
The applicant made the following submissions to the Court. First, he asserted that he was not an Iranian citizen, that he was a Faili Kurd and was a refugee. He said he had no documents to support this claim.
Second, he had provided “false identification” in his earlier application (for a prospective marriage visa) in relation to his claimed marriage to an Australian resident. He stated that the documents provided by him contained his photographs, but “someone else’s name”. He explained that he did this because he was scared of giving his true identity. He had decided to tell the truth now.
Third, that when he first came to Australia he “presented Mr Hakim’s name” as being a friend, not as his brother (see further below for explanation).
Fourth, and finally, he asserted that he had been “tortured” while held in immigration detention in Australia. He referred to an injury to his index finger, scarring to his knee and that his hair had been “pulled”.
At the hearing, I drew the applicant’s attention to the grounds of the application. Following, for the applicant’s benefit, translation by the interpreter of each of his grounds, the applicant submitted the following.
1)He had nothing to say in relation to ground one.
2)In relation to ground two, the Tribunal did not believe what he had said because it had “found out about those documents” (in context, what he now said were the “false documents”).
3)In relation to ground three, he could not return to Iran or Iraq because he was a Faili Kurd and would face persecution. He claimed that this had happened to Faili Kurds who returned in Iran or Iraq from Sweden.
4)In relation to ground four, if he returns to Iran or Iraq as a Faili Kurd, he would be in danger because he would be perceived as engaging in “espionage”.

Consideration

Dealing first with the submissions and complaints made to the Court, as summarised above (at [8] – [11]).
The first complaint (at [8] above) does no more than assert a claim made before the Tribunal, and rejected by the Tribunal. The Tribunal’s relevant finding, and the antecedent findings that led to it, were all reasonably open to it and for which it gave reasons probative of the material before it. Therefore, this complaint seeks impermissible merits review and does not reveal jurisdictional error in the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The second complaint (at [9] above) is plainly contrary to what he repeatedly asserted to the Tribunal (and to the delegate). Before the Tribunal, the applicant claimed to be AR, a Faili Kurd and that he had no knowledge of the application for the prospective marriage visa made in the name of “ZG”. While he continued to press before the Court that he was a Faili Kurd, and, that the Tribunal was in error to find to the contrary, he stated that the documents he provided to the Minister’s department in relation to his prospective marriage visa application were not his documents, that he had caused his photograph to be substituted in those documents for the person to whom they belonged, and lodged these documents with the application for the prospective marriage visa.
This is a claim not made before the Tribunal. Before the Tribunal (and the delegate), the applicant had insisted that he was AR, that he was not the person who had been the applicant for the prospective marriage visa, and that the photograph on the documents relating to that application was not a photograph of him.
The applicant claimed before the Court that he now wanted to tell the truth about this. That may be the case. What remains is that he conceded that, at least in relation to the matter of the prospective marriage visa application, he did not tell the truth to the Tribunal.
Ultimately, this submission cannot assist the applicant for the purposes of his application to the Court. It is a new claim not made to the Tribunal and in fact contrary to the claim made to it. In these circumstances, I cannot see that this submission can reveal jurisdictional error on the part of the Tribunal.
The third complaint (at [10] above) requires some explanation. As part of its examination of the matter of the applicant’s identity, the Tribunal put to the applicant the following ([31] at CB 242):
“I put to the applicant that, as he was aware, there was information before me indicating that he was an Iranian citizen named [ZG], born in 1970 in Tehran. I put [to] him that [ZG] had applied for a visa to come to Australia in 2008. He had said in that application that he was a national of Iran and he had produced a copy of his passport issued in 2005, his shenas nameh, his national identity card, his military service card and a ‘clean record certificate’ bearing his photograph. He had said that his younger brother, [Mr Hakimi], lived in Australia and he had given the same telephone number for [Mr Hakimi] which the applicant had given in his application. The person who had sponsored [ZG’s] application had named Mr Hakimi as James, the same name which the applicant had given for Mr Hakimi in his application. I put to the applicant that a Facial Image Comparison Specialist had examined a photograph of him and a photograph of [ZG] and had concluded that the photographs were of the same person.”
The Tribunal explained why this was relevant to the review ([32] at CB 242 to [34] at CB 243). The latter part of [33] and the first part of [34] (at CB 243) assist in understanding what the applicant put to the Court:
“[33] … The applicant said that he understood but he did not accept that he was [ZG]. I asked him if he wanted to comment on or to respond to this information immediately or if he wanted more time to comment on or to respond to this information. The applicant responded that he had said this a hundred times and that he did not need extra time. He referred to the fact that I had said that Mr Hakimi and [ZG] were brothers but they had different family names.
[34] I put to the applicant that this was not unusual in this jurisdiction. I indicated that I did not know why they had different family names. All I was saying was that [ZG] had stated in his application that Mr Hakimi was his brother…”
The Tribunal found, relevantly ([41] at CB 245):
“As I put to the applicant, there is information before me based on the comparison of a photograph of him and one of the images supplied with an application for a visa made by [ZG] in 2008 which suggests that the applicant is in fact [ZG]. I accept that the applicant has consistently denied this and that if he were telling the truth about being an undocumented stateless Faili Kurd he would obviously not be able to produce documents indicating that he is [AR] as he has claimed. However I place weight on the report of the Facial Image Comparison Specialist who examined a photograph of him and a photograph of [ZG] and concluded that the photographs were of the same person. The applicant’s representatives have submitted that the applicant believes that the photographs of [ZG] are of a man who is older than him and at the hearing before me he said that his hair had turned grey only since he had been in Sydney. However, as I put to him, the Facial Image Comparison analysis looks at the structure of the face. The applicant has argued that this could be a case of mistaken identity and at the hearing before me he produced photographs of people who looked alike. In their submission dated 1 May 2014 his representatives said that he instructed them that facial recognition testing was not 100 per cent accurate. However, as I put to the applicant, I also consider it relevant that he named [Mr Hakimi] in his original application as a friend and he gave Mr Hakimi’s mobile telephone number. As I put to him, [ZG] named [Mr Hakimi] in his application as his brother and gave the same telephone number and the person who sponsored [ZG] indicated that Mr Hakimi was known in Australia as ‘James’. I consider it too much of a coincidence that two people from Iran who look identical should both know Mr (James) Hakimi.”
In all, therefore, the applicant’s complaint, expressed through his submissions, is a challenge to the findings made by the Tribunal. It does not rise above a request for impermissible merits review. The Tribunal’s finding in this regard was reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)). It gave cogent reasons for this finding.
The fourth matter (at [11] above) raised by the applicant regarding his treatment in detention in Australia cannot assist in revealing jurisdictional error in the Tribunal’s decision. The applicant made no claim to the Tribunal that he would face harm in Iran (or for that matter Iraq) for reason of his claimed mistreatment while in immigration detention in Australia.
Turning to the grounds of the application. Ground one is as the Minister submitted, a mere assertion that the Tribunal did not take into account relevant materials. There are no particulars to the ground. As stated above, the applicant said nothing about this ground before the Court when he was given the opportunity to do so.

On what is before the Court, I cannot see that the Tribunal failed to take into account, including in the sense of properly consider, any of the applicant’s claims, submissions or evidence relevant to his claimed fear. In these circumstances, it remains that the applicant’s complaint is in reality that the Tribunal did not accept what he had put to it. No jurisdictional error arises here.
In relation to ground two, the applicant’s submission before the Court was not of apparent relevance to the ground. The ground asserts that the Tribunal misconstrued the complementary protection provisions in the Act, presumably with reference to s.36(2)(aa) of the Act, and misinterpreted s.36(2A) of the Act.
On what is before the Court, no jurisdictional error is evident in this regard. The Tribunal set out its understanding of the relevant legislation, made specific reference to s.36(2)(aa) and s.36(2A) of the Act and made appropriate reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 296 ALR 525 as to the applicable test (see [61] at CB 251). There is nothing in the Tribunal’s decision record to reveal jurisdictional error in the way the Tribunal assessed the applicant’s claims on the facts, as found against the legislative requirements.
The submission in relation to ground two was to complain that the Tribunal found adversely to the applicant’s credit in relation to his claims, because of what the Tribunal found in relation to the prospective marriage visa application.
It is the case that the Tribunal ultimately dealt with the major part of the applicant’s claims on the basis that he was not who he said he was. That is, that he was ZG and not AR. On this basis, the Tribunal found that the applicant as an Iranian citizen would not face the harm he claimed to fear in Iran, given that that fear was not based on the applicant’s true identity and circumstances. The Tribunal’s conclusion was reasonably open to it on what was before it. In all the circumstances, this submission seeks impermissible merits review.
I note that as to the remainder of the applicant’s claims, the Tribunal accepted that he would be identified as a failed asylum seeker. This applied irrespective of whatever identity was the applicant’s “real” identity. However, the Tribunal found that there was not a real chance of serious or significant harm for the applicant in the circumstances presented.
This was based on evidence before the Tribunal as to the relevant situation regarding such returnees from a Western country (see [45] at CB 246 and [47] at CB 247). No jurisdictional error arises here.
Ground three asserts two elements. The first is that the Tribunal failed to have regard to his “mental state” and that he would face, in effect, significant harm for reason of his “mental illness” if he returned to Iran. The second element is described at [38] below.
It is not clear what the exact assertion of legal error is here. If this was some complaint to say that the Tribunal failed to consider a claim that he would suffer significant harm, or even serious harm, if he returned to Iran, then no such claim, either expressly made or clearly arising was made to the Tribunal or before the delegate (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, and Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244). The material before the Court reveals that no substantial, clearly articulated claim in this regard, relying on established facts, was made (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
In written submissions, the applicant’s representative to the Tribunal made reference to the applicant’s “mental health” (see CB 200.6 – “Health Concerns”). However, as is plain, this was not a claim that he would suffer harm for this reason on return, but rather the representative asked that the Tribunal take the applicant’s mental health, which was said to have deteriorated because of his prolonged immigration detention in Australia, into account when assessing the applicant’s credibility.
The Tribunal did take these submissions into account, essentially in two ways, one of which, properly, went beyond the express request in the submissions. In this latter regard, the Tribunal considered whether the applicant’s claimed mental state was such as to affect his capacity to effectively participate in the hearing. The Tribunal dealt with this in a manner consistent with Federal Court authority ([2] – [3] at CB 235 and SZNMJ v Minister for Immigration and Citizenship [2009] FCA 1345; (2009) 112 ALD 284 at [45] per Cowdroy J). No error is apparent.
Second, in relation to the submission as expressly made, the Tribunal stated ([40] at CB 244 to CB 245):
“As submitted by the applicant’s representatives, I have taken his mental state into account in assessing his credibility. However, as they themselves have submitted, he has been consistent in his claims. The issues with regard to the credibility of his claims do not relate to problems which might be explicable by reference to his mental state. As I put to the applicant, I have great difficulty in accepting that he lived in Iran as an undocumented Faili Kurd for 30 years without ever having been asked for his documents. The applicant said that there were many people without visas staying and working in Australia. He said that Iran had borders with Iraq, Afghanistan, Pakistan and Turkey, that people could just enter Iran illegally and live there for ten years and that the Bureau for Aliens and Foreign Immigrants’ Affairs (BAFIA) could not catch them. However, as I put to the applicant, he has said that he was working quite openly in the capital, Tehran, as a waiter, a security guard or night watchman and a street vendor. He has even claimed that on two or three occasions he was detained by the Basij and that on three or four occasions he was picked up by the Ettelaat in cases of mistaken identity. As I put to him, given that it was his identity that was in question I would have thought that the first thing they would have asked him for would have been his documents. The applicant said that he had been picked up because of his appearance. After I put to him that Faili Kurds without cards risked being deported, he said that he thought that he had been able to live in Iran as an undocumented Faili Kurd for 30 years through God’s help because he was an orphan. I consider that the applicant’s evidence with regard to his circumstances in Iran casts doubt on his claim that he is an undocumented stateless Faili Kurd.”
The Tribunal’s findings here were reasonably open to it on what was before it. No legal error is revealed.
The second element in ground three is the assertion that the Tribunal failed to consider that as a Kurd he was a member of a particular social group and would suffer harm for that reason on return.
This complaint does not rise above a challenge to a critical fact as found by the Tribunal. That is, the Tribunal found that the applicant was not a Kurd, or a Faili Kurd, but was in fact an Iranian citizen. The Tribunal gave extensive reasons for this, all reasonably open to it (Durairajasingham). In all, no jurisdictional error arises from ground three.
In essence ground four asserts that the applicant will face harm if he returns to Iran and that Australia would be in breach of its international obligations under the Refugees Convention if he were to be returned to Iran. This was a claim repeated by the applicant before the Court.
As the Minister submitted, the applicant may disagree with the relevant factual findings made by the Tribunal, but such disagreement on its own, does not reveal jurisdictional error. The Tribunal’s conclusions as to the identity of the applicant were all reasonably open to the Tribunal. This finding, and the findings relating to the applicant’s claims irrespective of his identity (a returnee to Iran), were antecedent to the Tribunal’s conclusion that he was not a refugee. As such no breach of international obligations arises under the Refugees Convention. No jurisdictional error is revealed.
In oral submissions to the Court in relation to ground four, the applicant claimed he would be harmed on return to Iran because he would be perceived as, in effect, being a spy. This matter was raised by the representative’s submissions to the Tribunal. The Tribunal noted this claim in its decision record (see CB 199.7 and [12] at CB 237 to CB 238). This submission was put in the context of the applicant’s claim to fear harm as a member of particular social groups. These were “a returnee from the West” and a “Stateless Faili Kurd from Iran” ([12] at CB 237).
In relation to the latter, the Tribunal’s finding that the applicant was not a Faili Kurd is sufficient to dispose of that claim. As to the former, the Tribunal did not accept on the evidence before it, that the applicant would suffer harm for that reason (see [45] at CB 246 to CB 247 and [47] at CB 247). These findings were reasonably open to the Tribunal on what was before it. The applicant’s submissions, therefore, to the Court seek impermissible merits review.
The applicant’s written submissions to the Court, in essence, raise two matters. The first is to insist that he is a Faili Kurd and would suffer harm for that reason. As set out above, that complaint seeks to challenge the Tribunal’s relevant findings in that regard, and does not reveal jurisdictional error.
The second complaint relates to what the applicant describes as the leaking of information about “refugees” held in detention in Australia. The applicant claims to have been the subject of a “data breach” that resulted in the release on the internet of such information by the Minister’s department. The applicant asserts that the Iranian authorities would be able to access that material and that this, presumably, would lead to his suffering harm.
This was a claim made by the applicant to the Tribunal through submissions made by his representative to the Tribunal on 1 May 2014 (see CB 223 to CB 228 and the Tribunal’s recording of this

at [37] – [39] at CB 244).
The Tribunal addressed this in its analysis (see [43] at CB 245 to [45] at CB 246 to CB 247). It must be noted again that the Tribunal found that the applicant would not be subject to a real risk of harm if returned to Iran given his identity as an Iranian citizen.
The one exception to this was, that even with the identity of an Iranian citizen, he would still be identified by the Iranian authorities as a failed asylum seeker. The Tribunal found that this would occur “irrespective of this security breach…” ([43] at CB 246). The Tribunal found that coming to the attention of the Iranian authorities in these circumstances would not lead to a real risk of serious or significant harm ([45] at CB 246 to CB 247 and [47] at CB 247). These findings were reasonably open to the Tribunal. No jurisdictional error is revealed in this regard.

Conclusion

In all, no jurisdictional error arises from the grounds of the application, the applicant’s complaints before the Court or from his written submissions. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 14 November 2014