FEDERAL CIRCUIT COURT OF AUSTRALIA
ACW15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 2976	

Catchwords: 
ADMINISTRATIVE LAW – Application for extension of time within which to bring proceedings – insignificant delay – reasonable excuse given – time extended.

MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal was unreasonable – whether the Tribunal denied procedural fairness – whether the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims – whether Tribunal failed to take into account country information – extent of Tribunal’s obligation to give reasons for decision – application dismissed.	

Legislation:
Migration Act 1958 (Cth), ss.91K, 91L, 195A, 420, 430, 476, 477	

Abebe v Commonwealth [1999] HCA 14; 197 CLR 510
Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940
CCC v GC Berbatis Holdings [2003] HCA 18; 214 CLR 51
Islam v Minister for Immigration &Border Protection [2015] FCCA 2210
Kaur v Minister for Immigration & Border Protection [2015] FCA 1
McCloy v State of New South Wales [2015] HCA 34
Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431
Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; 243 CLR 164
Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAJT v Minister for Immigration & Border Protection [2015 ] FCCA 1471
NAIS v Minister for Immigration & Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405
SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470; 181 FCR 113
SZNZI v Minister for Immigration [2010] FMCA 57
SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093; 136 ALD 641
SZRIQ v Federal Magistrates Court [2013] FCA 1284; (2013) 139 ALD 252
SZSQL v Minister for Immigration & Border Protection (No.2) [2015] FCA 1118

Mark Aronson and Matthews Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013)
Enid Campbell and Matthew Groves, ‘Time Limitations on Applications for Judicial Review’ (2004) 32 Federal Law Review 29	

Applicant:	ACW15	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Administrative Appeals Tribunal	

File Number:	PEG 90 of 2015	

Judgment of:	Judge Smith	

Hearing date:	30 October 2015	

Date of Last Submission:	30 October 2015	

Delivered at:	Perth	

Delivered on:	6 November 2015	

REPRESENTATION
Counsel for the Applicant:	Mr D.V. Blades	

Solicitors for the Applicant:	Putt Legal	

Counsel for the First Respondent:	Mr R.J.S. French	

Solicitors for the Respondents:	Australian Government Solicitor	

ORDERS
(1)	The name of the second respondent be amended to Administrative Appeals Tribunal.
(2)	The application be dismissed. 
(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Perth	
PEG 90 of 2015
ACW15	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent

Administrative Appeals Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	The applicant is a citizen of Iran who is seeking asylum in Australia. His application for a protection visa was rejected by a delegate of the Minister and the Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed that decision on review.
2.	The applicant now seeks judicial review of the Tribunal’s decision under s.476 of the Migration Act 1958 (Cth). An application under that provision must be made within 35 days of the date of the decision. In this case, the date of the decision was 20 January 2015. That means that the application had to be made by 24 February 2015. The application was not made until 3 March 2015. 
Extension of time
3.	This Court has power under s.477(2) of the Act to extend the 35 day period as it considers appropriate if:
	… 
	a)	an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
	b)	the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
	…
4.	There was no issue that the first of these conditions was satisfied. The Minister contended that the period ought not to be extended because there were insufficient merits in the grounds of review relied on by the applicant. Having heard argument on the grounds of review, I made an order extending the period within which an application may be made under s.476 of the Act. The following are my reasons for that that order. After those reasons I turn to consider the merits of the substantive application.
5.	In SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; 139 ALD 252 Foster J dealt with an application for judicial review of a decision of this Court refusing to extend the time under s.477(2) of the Act. His Honour explained the matters relevant to an application under s.477(2) as follows:
	[46]	There are no particular criteria specified in s 477 which must be satisfied as part of the concept of “the interests of the administration of justice …”.  The matters which might be taken into account by the Federal Magistrates Court are at large although they must logically and sensibly relate to the interests of the administration of justice. 
	[47]	The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include:
	(a)	Whether there has been a reasonable and adequate explanation for the applicant’s delay;
	(b)	Whether there is any prejudice to the Minister;
	(c)	Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time. 
	[48]	The factors to which I have referred at [47] above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (s 477(2)(b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case.  They are simply sensible guidelines developed by the courts which have utility in most cases.
6.	In SZNZI v Minister for Immigration [2010] FMCA 57 Smith FM said this about the Court’s discretion to extend time under s.477(2):
	 [11]	The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch v Maunz (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration & Anor [2009] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weigh all of the relevant circumstances together by reference to the statutory criterion provided in s.477(2)(b), quoted above.
7.	For a more detailed discussion of the principles applied in relation to the exercise of power to extend time limits, see Enid Campbell and Matthew Groves, Time Limitations on Applications for Judicial Review (2004) 32 Federal Law Review 29 especially at 43-51.
8.	The delay in bringing these proceedings was 7 days. Further, there was no issue that the applicant had a reasonable excuse for that delay. The applicant sought advice from a lawyer and migration agent on 9 February 2015. The lawyer in turn approached a barrister for advice and also sought a copy of the recording of the hearing from the Tribunal. The lawyer received an advice on prospects from the barrister on 25 February 2015. An application and affidavit were prepared and the applicant attended the lawyer’s offices on Friday 27 February 2015 to sign his affidavit. The following Monday was a public holiday and the application and affidavit were filed the following day.
9.	On the basis of those facts, I agree that there was a very good explanation for what was a very minor delay. In light of that, and given that the grounds of the application were well-considered, required some significant attention to the details of the Tribunal’s decision and the material before it and raised, on their face, some complicated legal issues, I considered that it was in the interests of the administration of justice that an extension of time be granted.
10.	I turn now to the substantive matter.
Background
11.	The background to the Tribunal’s decision is complicated but needs only to be summarised as follows for the purposes of this application. 
12.	The applicant arrived on Christmas Island by boat on 30 August 2010. He was detained there on the basis that he had no visa that permitted him to enter and remain in Australia. 
13.	In a written statement made in September 2010 the applicant claimed that he could not return to Iran because he would face discrimination for being of Arab ethnicity and would be punished for having sought protection in a Western country. On 26 September 2010 he applied for a Refugee Status Assessment (RSA) on the basis of those claims. 
14.	On 7 December 2010 the RSA was determined against the applicant and on 5 January 2011 he applied for an Independent Merits Review (IMR) of that decision. In support of that application, the applicant lodged a further statement and written submissions prepared by his adviser. In his statement, the applicant said that his maternal cousin had left Iran in 2005 because of political reasons. He also said that his elder brother had been taken by the Iranian security “2 months ago” and that he was still in custody.
15.	The applicant was interviewed as part of the IMR process on 14 July 2011. At that interview the applicant explained and expanded on his earlier claims. In particular, he said:
a)	His brother had followed him to Australia, leaving Iran about a month after the applicant had left. Another brother had been questioned by the authorities in their home town about his brothers’ whereabouts. The Sepah and Basiji kept bothering the brother in Iran about the applicant who had painted an Arab flag on walls with other friends before leaving Iran. His friends had been arrested and imprisoned “some months ago” and had given his name and details to the authorities in Iran.
b)	In Australia the applicant had contacted the TV and raised issues and made comments about certain Arabs. The TV station is in Britain and Canada and goes to Iran by satellite.
c)	Since 2008 the applicant and his friends had repeatedly painted flags on the walls in his home town at night in secret. He had not mentioned the flag painting earlier as he was not asked about this and he did not think it was more important than referring to his discrimination as an Arab. He first raised it after his brother in Iran had been put under pressure by the Basiji and Sepah.
d)	The brother in Iran had gone missing after being harassed by the Basiji for some months. The Basiji started going to his house after the other brother came to Australia in August 2011. The trouble started for the family a month to 40 days after that.
16.	On 1 August 2011 a report on the IMR was prepared, indicating that the applicant did not meet the criterion for the grant of a protection visa and recommending that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention.
17.	On 13 September 2011 the applicant lodged a “Ministerial Obligations Submission” with the Department of Immigration requesting that the Minister exercise his discretion to grant the applicant a visa to allow him to remain in Australia. The process that ensued from this request is known as an International Treaties Obligation Assessment (ITOA).
18.	On or about 8 January 2012 the applicant informed an officer in the immigration detention facility on Christmas Island that his brother who had been in prison in Iran had been killed and that this was related to the application for asylum by the applicant and his brother.
19.	On 6 March 2012 the applicant’s adviser wrote to the Department saying, amongst other things:
	… [The applicant] advised me that his older brother was arrested 3 times last year. He spent overall about 9 months in jail. While in detention he was tortured many times and accused of being part of the Arab Party. [The applicant] also stated that his brother was not involved with the Arab Party. The third time he was detained he died while in custody of the Revolutionary Guard.
	[The applicant] also stated that his family was told to pick up the body and bury it in what he said was a “cursed cemetery”. When asked what he meant by that, he said it was a very basic cemetery where no decent person would be buried …
	…
	[The applicant] said that there is a website with relevant information about his brother’s death and some pictures.
20.	On 14 March 2012 the applicant’s adviser wrote to the Department indicating that the applicant had converted to Christianity and that he was actively involved in the Church. He enclosed a letter from a Rev. Faulkner of the Christmas Island Christian Fellowship which stated, in part:
	[The applicant] has been a regular member of our group over recent weeks. He has become a believer in Jesus Christ and I believe is growing in his understanding of the Christian Faith. I believe he is sincere in his desire to be a follower of Jesus Christ and will continue in the faith.
21.	The adviser noted that apostasy was forbidden under Sharia law and that the applicant faced death as a consequence of his conversion.
22.	On 8 May 2012 the applicant was notified that the Minister had decided to exercise his ministerial intervention power under s.195A of the Act to grant the applicant a Temporary Safe Haven (subclass 449) visa and Bridging E (subclass 050) visa. This enabled the applicant to leave immigration detention but prevented him from lodging an application for any visa while in Australia: s.91K of the Act. However, on 19 October 2012 the applicant was informed that the Minister had exercised his power under s.91L(1) of the Act to allow an application for a protection visa to be made. In the meantime, the applicant had left Christmas Island and had gone to live in New South Wales.
23.	On 29 October 2012 the applicant lodged an application for a protection visa. In it he specifically referred to and relied on the claims made in the statement made in support of his RSA application. In addition, he lodged a statutory declaration made on 2 January 2013. 
24.	In that declaration, the applicant stated that his brother had been arrested in 2005 and 2010 because of his involvement in anti-government demonstrations and that he was perceived by the government to hold views against it. He claimed that his brother was tortured and killed by the Iranian Revolutionary Guards on 25 December 2011. He added that he had converted to Christianity in 2012 while he was on Christmas Island.
25.	On 18 February 2013 the applicant’s advisers sent a submission to the Department summarising the basis of his claims as being his race, Ahwazi Arab, and religion. In support of the latter claim, the advisers wrote that the applicant had been baptised by a Christian pastor at the Christmas Island Christian Fellowship and that he continued to read the Bible and to attend church. 
26.	At an interview with a delegate of the Minister, the applicant said that he had become involved in the Catholic religion and had attended church once a month, possibly twice a month when he resided in Fairfield, New South Wales. He said that he had attended church on no more than 10 occasions there until he left for Perth in February 2013. He said that he had not made contact with any Catholic church in Perth as he was employed and did not have time. 
27.	On 19 July 2013 a delegate of the Minster made a decision to refuse to grant the applicant a visa. The applicant applied to the Tribunal for review of that decision.
28.	On 31 March 2014 the applicant’s advisers sent the Tribunal a further statement by the applicant together with written submissions. In the statement, the applicant addressed the following as bases for his claim for asylum:
a)	Arab ethnicity;
b)	Political activism – Arab nationalism (referring to the flag painting claim);
c)	Political activism – his brother who had been killed in Iran;
d)	Political activism – maternal cousin (who had gone to Sweden); and
e)	Religion.
29.	In their written submissions, the advisers summarised the bases for the applicant’s claims as being ethnicity, religion, political opinion and membership of a particular social group (failed asylum seekers returning from a western country).
30.	The applicant attended a hearing conducted by the Tribunal on 5 December 2014. The transcript of that hearing is in evidence and it will be necessary to refer to parts of it in due course. It is important to note at this time that the applicant claimed at the hearing that he had in fact attended church in Perth every Sunday for 5 months.
31.	On 19 December 2014 the Tribunal wrote to the applicant setting out certain matters in relation to his evidence that it considered might be adverse to his claims. The applicant responded to that letter on 5 January 2015. The Tribunal made a decision affirming the delegate’s decision on 20 January 2015.
Tribunal’s decision
32.	The Tribunal found that the applicant was not a credible witness and rejected all of his evidence. It gave two reasons for that conclusion: first, he was unable to name the churches that he claimed to have regularly attended in Perth and Sydney; and secondly, the applicant gave inconsistent evidence about the timing and significance of his political activity in Iran as a reason for his departure from Iran. Thus, it rejected his claims that he had converted to Christianity, participated in painting Arab flags and Arab broadcasts, that his brother was killed by the authorities because the applicant and his other brother had applied for asylum, and that his cousin had fled Iran for political reasons.
33.	The Tribunal did accept that the applicant was an Ahwazi Arab from Iran and that he would return to Iran as a failed asylum seeker from the West and assessed his application on that basis. However, it found on the basis of information from the Department of Foreign Affairs and Trade (DFAT) that any discrimination the applicant might face in Iran as an Ahwazi Arab would not amount to either serious harm or significant harm within the meaning of the Act. Finally, the Tribunal found that failed asylum seekers as a group are not perceived as anti-regime or mistreated upon their return to Iran.
34.	For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and affirmed the decision of the delegate.
Consideration
Ground 1
Unreasonableness or procedural unfairness
35.	This ground was argued in a number of different ways. The first was that the Tribunal’s decision was unreasonable because the Tribunal completely rejected the applicant’s claim to have converted to Christianity simply because he was unable to spontaneously identify the churches he claimed to have attended regularly. This argument relied heavily on the judgment of Logan J in SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; 136 ALD 641 (“SZRHL”). 
36.	The appellants in SZRHL were citizens of Bangladesh. The basis upon which the first appellant claimed a protection visa centred on his alleged involvement with the Bangladesh Nationalist Party (BNP). The appellant claimed that he was subject to a "false case" that had been brought against him by the Awami League about arms and bombings. This "false case" was first referred to by the first appellant in response to a question in his protection visa application which sought details of any pending criminal charges. However, no details of the nature of the false case were given in the answers on the application form and no reference made to it in the accompanying supporting statutory declaration. The first appellant gave the Tribunal details of this alleged false case only much later during the course of the review application.
37.	The Tribunal concluded that the factual basis upon which the first appellant advanced his protection visa application was not credible. His Honour Logan J in the Federal Court found that the Tribunal's reasoning to this conclusion was expressly influenced by its finding that the appellant had made "no mention" in the protection visa application of his false case. 
38.	Justice Logan noted, by reference to Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332, that it must be accepted that the Tribunal is constrained to undertake its "core function" of review reasonably, which includes exercising, reasonably, ancillary discretionary powers granted to the Tribunal for that purpose. His Honour then said "a decision on review would only transgress this underlying requirement of reasonableness and thereby constitute jurisdictional error if the decision was so unreasonable that no reasonable Tribunal could have so decided the review application".
39.	In stating his conclusions, Logan J found that there was no doubt that the Tribunal's conclusion as to the first appellant's absence of credibility was influenced by its perception that there had been no reference to the "false case" at the time when the protection visa application was made. His Honour then held, by reference to his earlier decision in SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; 181 FCR 113, that "the adjectives "ignorant", "arbitrary" and "perverse" aptly apply to a process of reasoning which damns a man's credibility by reference materially to a false factual premise". 
40.	His Honour then proffered a different characterisation of the error he found in SZRHL at [36]:
	Another way of characterising the jurisdictional error, as the discussion in SZLGP reveals, is that it was procedurally unfair to the first appellant for the Tribunal, when questioning him in the course of the hearing, to have put to him that he had failed to mention a “false case” in the statement in the statutory declaration which accompanied the protection visa application but to have failed to mention to him that he had mentioned that matter in the application itself. The answers which the first appellant came to make at the hearing to questions proceeding from this false premise in turn form part of the reason that led to a conclusion the first appellant was not credible.
41.	The applicant argued that the Tribunal’s credit findings were based on the false factual premise that the applicant could not “spontaneously identify” the churches he had attended. He argued that he had in fact identified those churches by referring to their locations. The argument must be rejected.
42.	While it is true that the Tribunal used the words “spontaneously identify” in its decision (see [55]) what it meant was that the applicant could not name those churches. Not only did it ask the applicant to name the churches at the hearing, but it said, at [52] of its reasons, that it rejected the applicant’s religious claims because he was “unable to name churches that he claims to have attended regularly.” In light of that, the applicant’s first argument is based on a misunderstanding of the Tribunal’s reasons or, alternatively, on an overly critical and nit-picking approach to those reasons. For those reasons, the decision in SZRHL is distinguishable from the circumstances of this case.
43.	The second way in which unreasonableness was argued was that it was unreasonable for the Tribunal to reject the applicant’s claims on the basis that he was unable to name the churches he had been attending. In essence the argument was that it was unreasonable for the Tribunal to determine the religious claims using an on-the-spot verbal test of the applicant’s ability to name the churches he had attended rather than taking into account the totality of written and oral evidence before the Tribunal on that issue. 
44.	This argument appears to be based on the proposition that it is unlawful for a decision-maker to make a broad based finding of credit on the basis of a matter that, to a reviewing court or one of the parties, appears to be relatively minor or insignificant. That proposition is, at that level of generality, incorrect. As Gleeson CJ explained in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [4], decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. Further, just because the Tribunal does not, at the point of recording its reasons for a finding on credit, set out an analysis of all of the material including material that might support the applicant’s credit, does not mean that it has not taken that material into account. The Tribunal’s obligation under s.430 of the Act does not go so far. 
45.	Section 430 requires the Tribunal to set out its decision, its findings of material fact, refer to the evidence or material on which they are based, and the reasons for its decision. It does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made: Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940 at [24]. It is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the applicant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 at [65]; Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105 at [102]; SZSQL v Minister for Immigration & Border Protection (No.2) [2015] FCA 1118 at [14]. 
46.	Further, in oral submissions this argument was extended to include the proposition that it was not open to the Tribunal to reject a claim to have converted to Christianity simply because the applicant did not know the names of the churches he had attended. I disagree. It must be remembered that the applicant did not say that he had visited these churches once, or that that his visits were a long time ago. His evidence at the Tribunal hearing was, at least in respect of the church in Perth, that he had attended services at the church every week for 5 months. In my view it is reasonable to assume that a person who attends one church so regularly over a period of 5 months should know and be able to recall the name of that church. That is particularly so where the applicant said he was baptised at that church, was a recent convert, attended voluntarily and, one might infer from his recent conversion, was a keen attendant.
47.	For those reasons, the argument is rejected.
48.	The third way in which the ground was argued was that, in light of the material before the Tribunal, it was unreasonable for it not to have made enquiries about the churches that the applicant said he had attended or to have asked the applicant to produce his certificate of baptism. The argument relies on the decision in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123. In that case the plurality said, at [25]:
	… The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.  It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. … 
	(Citations omitted)
49.	The applicant tendered a copy of his baptism certificate at the hearing in order to establish that it would have been easy for the Tribunal to obtain it. I admitted it on the basis that it was at least probative of the fact that the applicant had a baptism certificate and it was unclear whether the appropriate question was whether material that was not before the Tribunal could be used to establish that a matter could be “easily ascertained”. 
50.	On the assumption that the certificate is genuine, I find that the Tribunal could easily have ascertained whether or not the applicant had a baptism certificate and, if so, could have at least asked the applicant to produce a copy. Similarly, it would have been a relatively simple matter for the Tribunal to find out the names of the churches that the applicant had said that he attended. However, for the following two reasons, I do not consider that that means that the Tribunal fell into jurisdictional error in failing to do so. 
51.	First, the question of the genuineness of the applicant’s conversion to Christianity was clearly in issue before the Tribunal. The delegate had found that the applicant had not converted. She based that finding on the fact that the applicant had not engaged in any religious instruction nor developed any relationship with a parish priest. In light of that, the applicant had every opportunity to produce evidence to the Tribunal about his conversion. If he was baptised he could easily produce the certificate to the Tribunal. 
52.	Second, the applicant was questioned about his religious practice at the Tribunal hearing. He did not tell the Tribunal then, or ever, that he had a certificate of baptism. All that he said was, contrary to submissions that had been made on his behalf, that he had not been baptised on Christmas Island, but in Perth. 
53.	In those circumstances, there is nothing to indicate that the Tribunal misunderstood, or somehow failed to complete its task of review. Although the context was different to the present issue, the following statement by Gummow and Hayne JJ in Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 (at 576 [187]) is apt:
	… The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.
54.	It is no part of the Tribunal’s task to guess what further evidence an applicant might have in support of his or her claims and then to take steps to obtain that evidence. To the extent that the applicant’s argument suggests otherwise, it is wrong and it is rejected.
55.	The final way in which the applicant argues this ground is that the Tribunal denied the applicant procedural fairness. He argues that the way in which the Tribunal questioned the applicant was unfair: first, by expecting him to spontaneously identify the churches in circumstances where he had little or no English, had identified the churches and given written evidence about his conversion; and secondly, in that the questioning had the attributes of a trap. 
56.	The applicant relies largely on the decision of Robertson J in Kaur v Minister for Immigration & Border Protection [2015] FCA 1. In that case, Robertson J found that there had been procedural unfairness in three respects: first, the Tribunal should have, but did not, put to the applicant that there had been a change in her evidence (at [59]); secondly, the form and context of the questions asked about a particular matter had the attributes of a trap (at [62]); and thirdly, the Tribunal failed to alert the applicant to an inconsistency in her evidence (at [63]). That decision reveals that the form of questioning by the Tribunal can give rise to procedural unfairness (or a breach of the statutory obligation to provide a hearing). However, each case turns on its own facts and, as Robertson J said at [58], the matter is to be tested by reference to the fairness of the procedure adopted.
57.	As I have already said, the question of whether the applicant had in fact converted to Christianity arose from the delegate’s decision. The following passage from the transcript of the hearing must be understood in that context:
	Tribunal:	Getting back to your Christianity, I’ve read the letter from Pastor Peter Faulkner … by Reverend Peter Faulkner, I understand, were you baptised on Christmas Island?
	Applicant:	No no not in Perth, not in Christmas Island, I believe it was in Perth like five months ago or something like that I cannot remember that we done that in Christmas Island.
	Tribunal:	What ongoing connection do you have with the Christian community in Perth?
	Applicant:	Well I feel very comfortable going with them. I feel very comfortable to be free and to get out of them very comfortable and very pleased.
	Tribunal:	I probably didn’t explain my question very well. Christians tend to congregate together to undertake Christian activities in church communities. What is your church community?
	Applicant:	Well given that my language is not English I, that really is the thing that allowing me not to understand a lot of what is said there, but I understood that we talking of, talking about Jesus and the message and the idea that he came with, I go there with a friend of mine.
	Tribunal:	I just want you to identify the church community that you go to.
	Applicant:	It’s a church in Victoria Park.
	Tribunal:	What’s the name of it?
	Applicant:	I don’t know the name of it.
	Tribunal:	And how often do you go?
	Applicant:	Every five months.
	Tribunal:	Once every five months?
	Applicant:	No, no, no, no, every Sunday I go there.
	Tribunal:	Why can’t you name the church if you go there every Sunday?
	Applicant:	If you ask me about my date of birth I wouldn’t give you the answer.
	Tribunal:	I’m not prepared to accept that you go to a church every Sunday if you can’t name the church.
	…
	Tribunal:	… I’m concerned based on the evidence you’ve given me today that you can’t name the church you go to, you can’t name the church you went to, that you commitment to Christianity is not genuine … That would also mean that if you were to return to Iran that I might think that you won’t take any steps towards the practice of Christianity in Iran, because there is no genuine conviction behind it. What would you say if I had those concerns?
58.	In my view there was nothing unfair about this questioning. The Tribunal did not start out with the idea that it would only accept the applicant’s conversion to Christianity if he could name the churches he went to. That arose naturally from the answers that the applicant gave to broader questions asked by the Tribunal. When the applicant appeared not to understand the initial broad question (about connection with the Christian community in Perth), the Tribunal explained what it meant and narrowed the question. When the applicant was unable to name the church he went to, the Tribunal did not immediately spring to the conclusion that he was lying. Rather, its concerns came not only from the fact that he could not name his church, but also that he said he had been going to the church every Sunday. Finally, the Tribunal explained its concerns in very clear terms and gave the applicant the opportunity to respond to them, not once, but twice.
59.	In those circumstances, there was no unfairness. The applicant was not trapped and the Tribunal’s concerns were raised expressly with him. 
60.	The first ground is rejected.
Ground 2
Failure to give proper, genuine and realistic consideration to the applicant’s claims concerning his ethnicity, political opinion and membership of a particular social group
61.	This ground is framed by reference to the catch phrase “proper, genuine and realistic consideration”. It is worth commenting on the use of that phrase before turning to examine precisely what the applicant says the Tribunal failed to do and why it constituted jurisdictional error. Judge Lucev recently considered the phrase in Islam v Minister for Immigration & Border Protection [2015] FCCA 2210. His Honour there said, at [14]:
	… The High Court in Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; 243 CLR 164;… at [29] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (“SZJSS”) identified reasons why care must be taken in applying a ground of that character so as to reach a result that does little more than express emphatic disagreement with the decision of an administrative decision-maker or otherwise slide impermissibly into merits review. There is nonetheless subsequent Federal Court authority for the recognition of the ground and its potential application to administrative decisions undertaking merits review: Reece v Webber [2011] FCAFC 33; 192 FCR 254;… at [68]-[70] per Jacobson, Flick and Reeves JJ, and compare, in the context of judicial review under the Migration Act, Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547 at [54] per Kenny, Griffiths and Mortimer JJ. Another example, albeit (as with Reece v Webber) in a different statutory context is Tomson v Minister for Finance and Deregulation [2013] FCA 664; 136 ALD 610 at [48]-[50] per Rares J;
62.	Care must always be taken when phrases such as this are used. Without proper analysis, the use of such phrases, like any label or taxonomy, gives rise to the risk that, adopted as a convenient method of exposition of an underlying principle, it might be misunderstood, and come to supplant the principle: ACCC v GC Berbatis Holdings [2003] HCA 18; 214 CLR 51 at [10]. As Gageler J recently said, there is no magic in a label: McCloy v State of New South Wales [2015] HCA 34 at [139]. 
63.	I would add that, in any event, the High Court appears to have accepted that there is an implied duty to give visa applicants’ evidence proper genuine and realistic consideration that arises from the obligation to invite applicants to attend a hearing to give evidence: see Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, at [5.180]; NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [37] and 526; Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [29]. This must arise from the fact that the right to be heard entails the correlative duty to listen.
64.	Here, the applicant argues that the Tribunal did not engage meaningfully with the content of any of the written statements and submissions provided by the applicant regarding the detention and killing of his brother or the translation of the website referring to that incident. In respect of that website, the applicant argued that the Tribunal’s reasons disclose no consideration of particular aspects of it and that it ought to have read the website page and engage with its content by analysing it and cross-referencing the information in it with other written material, and the oral evidence given by the applicant as well as country information available to the Tribunal.
65.	At the heart of the applicant’s argument is that, instead of undertaking this type of analysis, all that the Tribunal did was to reject the applicant’s claims for the simply reason that they were raised late and, to some extent were not consistent. The problem with this is that the fact that the Tribunal rejected the applicant’s claims for one reason does not mean that it did not consider all of the material relied on by the applicant to support those claims. As I have noted above, there is no requirement on the Tribunal to engage in a line-by-line refutation of the material that might support a finding contrary to the one actually made by the Tribunal. To the extent that the applicant suggests otherwise, his argument is inconsistent with well-established principles of the highest authority.
66.	Further, the Tribunal expressly stated that it had “considered the documentary evidence provided by the applicant” regarding the death of his brother: [58]. The Court cannot simply put that statement to one side, or find that the Tribunal was not being truthful. While it is possible, in some circumstances, to infer that the Tribunal has not done what it says it has done (whether that be by oversight or misunderstanding), I cannot infer that in the circumstances of this case. The fact is that the Tribunal looked at the material, attempted to verify it by searching for a translated version, was unable to do so and, gave it no weight because of the nature of the document.
67.	Similarly, in its statement of reasons the Tribunal shows that it carefully analysed all of the material put forward by the applicant in relation to his claim that he had been involved in painting Arab flags. It was this analysis that led it to conclude that the applicant had changed his evidence about the claim over time. Further, although it had initially overlooked the fact that the applicant had raised it before the IMR, it went back through the material after the hearing and discovered its earlier error. This approach does not support the applicant’s argument. 
68.	I conclude that the Tribunal had regard to all of the material before it in the sense that it engaged in intellectual consideration of it. For that reason, this ground is rejected.
Ground 3
Failure to take into account country information relevant to the applicant’s return to Iran as a failed asylum seeker from a western country
69.	In this ground, the applicant relies on the fact that, at [82] of its reasons, the Tribunal only refers to information from DFAT concerning the treatment of asylum seekers returning to Iran whereas the applicant had referred to other material in his submissions both to the Tribunal and to the IMR. 
70.	The applicant relies on the following well-known passage from the decision in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 75 ALD 630 (“WAEE”) at [47]:
	…
	The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
	…
71.	Although, for the purposes of identifying jurisdictional error it can be distracting to distinguish between an issue and evidence or material (Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (“SZRKT”)), there remains, in my view, utility in the distinction for the purposes of considering whether the Tribunal has in fact considered something. Whereas the reasons for a decision will in most cases require the express identification of an issue and so require some exposition in light of s.430(1), that is not the case in respect of evidence on which the Tribunal does not base its findings on material questions of fact. For that reason WAEE is of little assistance in the present case.
72.	The applicant also relies on the decision of Judge Maguire in MZAJT v Minister for Immigration & Border Protection [2015] FCCA 1471. The issue in that case was whether the Tribunal had considered certain country information and, if not, whether that amounted to jurisdictional error. His Honour there said, at [37]:
	In this matter I am satisfied that the Tribunal has not referenced or engaged the material being the December 2012. I am satisfied that this material was prima facie relevant and important to the Tribunal’s consideration. I am satisfied that the material was relevant to a claim or an integer of a claim made by the applicant. I am satisfied that the material argues contrary to the Tribunal’s findings in respect of the particular issue.
73.	His Honour relied on the passage from WAEE I have set out above as well as Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 (“MZYTS”). The following passages in MZYTS are pertinent:
	[49]	The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 at [10], [44], [69].
	[50]	We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
74.	The passages in Yusuf referred to by the Full Court do not relate to the material on which findings are made, but the findings themselves. The point made there was that, if the Tribunal did not set out a finding on a particular matter it could be inferred that it did not consider that the matter was material. In my view, the same analysis does not follow in respect of material (in the sense of evidence or other information). That said, I am bound to follow MZYTS and will do so. However, that case is not authority for the proposition that, in every case, the Tribunal must expressly refer to and analyse material probative of the issues before it and to express reasons for which preference is given to some material over other material and, if it fails to do so, it must be inferred that it has ignored that material and so fallen into jurisdictional error. The Full Court says that this is “generally” the case, but does not give any other guidance as to when it is so. 
75.	Following from SZRKT the answer to that question must be that it depends on the nature of the material and its importance to the Tribunal’s decision. If that is so, it is not enough to argue, as the applicant here has, that there was material before the Tribunal that was relevant to a particular issue, the Tribunal did not expressly analyse that material and therefore committed jurisdictional error. The determination of the issue is not reached by such a syllogistic process of reasoning. It is more nuanced and fact dependent.
76.	The issue for the Tribunal was whether the applicant might be harmed on return to Iran because he was a failed asylum seeker. The applicant argues that he had presented information relevant to this issue on three occasions: first, in submissions to the IMR on 1 May 2011; secondly, in submissions dated 17 February 2013 in relation to the ITOA; and thirdly, in pre-hearing submissions to the Tribunal dated 12 March 2014.
77.	In the first of these, there are some references to returning asylum seekers being harmed on return to Iran. However, the only information that linked that harm to the fact of being known as a failed asylum seeker was a decision of the Tribunal made in 2010. The only part of that decision that actually refers to country information is:
	However, country information indicates that following Ahmadinejad’s election in 2005 and particularly since the last election in June 2009 the applicant would face a greater chance of persecution (on) the basis of anti-government opinion imputed from an attempt to seek asylum. 
78.	The second submission also referred to that earlier Tribunal decision. It also sets out the following passage quoted by Amnesty International in an unidentified report:
	Asylum seekers are interrogated on return, whether or not they have been political activists in Iran or abroad. If they have tried to conduct propaganda against Iran, then they are culpable and are detained until a judge decides the sentence. In recent years many people have tried to destroy the reputation of Iran and this must be stopped. Such people help the opposition groups and their culpability is plain. Returnees will therefore be held for a few days until it is clear to the police, that they have not been involved in political activity. If the police can prove that the person was not active and has not done or said anything that could damage the reputation of the Islamic Republic, then they are released. If the person was either politically active in Iran before leaving, or has been active abroad, they must be tried and receive a punishment appropriate to their activities.
79.	The third submission repeated certain parts of the first submission and added further material from Amnesty International. First, there was a report concerning a young man who had been arrested in Iran following a demonstration, had fled to France to seek asylum and had disappeared after taking part in further demonstrations. Secondly, there was a report of a young Kurdish man who was detained after being forcibly returned from Norway, but there is no indication as to why. Finally, the passage from the second submission is repeated.
80.	The highest that any of this information goes is that, as at May 2011, returned asylum seekers were likely to be detained and questioned. If they have been politically active they will be punished. Bearing in mind that the Tribunal rejected the applicant’s claim to have been politically active, this information is not as critical to the Tribunal’s reasoning process as it would have been had that claim had been accepted. Further, the information actually relied on by the Tribunal was contained in a report prepared in November 2013, much later than any of the material submitted by the applicant. 
81.	The information in the submissions to the IMR and in respect of the ITOA were, as I have noted, repeated by the applicant’s adviser in his submissions to the Tribunal dated 12 March 2014. That submission was not only referred to by the Tribunal, but accurately summarised by it at [24] – [28] of its reasons. Although the Tribunal did not make any express reference to the material, the fact that it summarised the claims which went with the material indicate that, at the very least, the Tribunal was cognisant of the material and had read it. 
82.	In those circumstances, given that the material itself was not highly cogent and directly applicable to the applicant, and was not the most recent material available to the Tribunal it cannot be inferred, and I am not satisfied, that the Tribunal failed to actively engage with that material.
83.	For those reasons the third ground is rejected.
Conclusion
84.	There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:  

Date:	  6 November 2015