ATX20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1405
•1 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATX20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1405
File number: MLG 591 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 1 September 2025 Catchwords: MIGRATION – Safe haven enterprise (class XE) (subclass 790) visa – review of decision of the Immigration Assessment Authority (Authority) – judicial review – where Authority affirmed decision refusing applicant a visa – where Authority did not exercise discretion under s 473DC of the Migration Act 1958 (Cth) to obtain ‘new information’ – information gap – whether failure to exercise s 473DC discretion was unreasonable – whether Authority failed to consider relevant material – Authority overlooked relevant information – failure to exercise discretion legally unreasonable – Authority’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued Legislation: Migration Act 1958 (Cth) ss 5H, 5H(1), 5J, 36(2), 36(2)(a) 36(2)(aa), 36(2A), 46A(2), 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 487ZJ(1) Cases cited: ABT17 v Minister forImmigration and Border Protection [2020] HCA 34, 269 CLR 439
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352
DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12, 258 FCR 551
EGY18 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2020] FCA 796
LPDTv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of last submission/s: 2 July 2025 Date of hearing: 16 July 2025 Counsel for the Applicant: Mr B Overend Solicitors for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms K Chan Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 591 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATX20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
1 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority on 20 January 2020 affirming a decision of the Minister’s delegate to refuse the applicant’s application for a Safe Haven Enterprise visa.
2.The matter be remitted to the Administrative Review Tribunal for reconsideration according to law.
3.The first respondent pay the applicant’s costs in a fixed sum to be agreed between the applicant and the first respondent.
4.If the parties cannot agree as to the quantum of costs as contemplated by order 3 by 15 September 2025:
(a)the applicant file and serve written submissions on the question of quantum of costs by 22 September 2025;
(b)the first respondent file and serve written submissions on the question of quantum of costs by 29 September 2025;
(c)the quantum of costs will be determined on the papers.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
Before the Court is an amended application for judicial review of a decision of the former Immigration Assessment Authority (IAA) made in January 2020. The IAA affirmed a decision of a delegate of the first respondent to refuse the applicant a Safe Haven Enterprise visa. The applicant alleges the IAA’s decision is attended by jurisdictional error on several bases and should be set aside.
I consider the IAA’s decision is attended by jurisdictional error. My reasons follow.
BACKGROUND
The applicant is an Iranian national who arrived in Australia in April 2013 as an unauthorised maritime arrival. Upon arrival, the applicant was interviewed twice by officers from the Australian Border Force, first on 16 May 2013, and again on 27 May 2013. On 25 May 2016, the (then) Department of Immigration and Border Protection invited the applicant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa, advising him that the Minister had exercised power under s 46A(2) of the Migration Act 1958 (Cth)[1] (Act) to remove the prohibition on the applicant lodging a valid visa application, which had to that point prevented the applicant from so applying because he was an unauthorised maritime arrival.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
On 7 June 2017, the applicant applied for a Safe Haven Enterprise (class XE) (subclass 790) visa (SHEV) with the assistance of a legal practitioner. That application was accompanied by, inter alia, a statutory declaration setting out the applicant’s circumstances and his claims for protection. The applicant claimed (and continues to claim) that he feared harm from the Iranian government resulting from his activities as a photographer in Iran and his related political activities and associations.
By letter dated 20 July 2017, the Department acknowledged receipt of the visa application. In October 2019, the applicant was invited to attend an interview with the Department scheduled for 31 October 2019, to give further information in relation to his application, which he attended as scheduled (SHEV interview).
On 15 November 2019, the Minister’s delegate refused to grant the applicant a SHEV on the basis that the delegate was not persuaded the applicant satisfied s 36(2) of the Act. The notification letter: advised the applicant the matter had been referred to the IAA for review under the Act; set out information relevant to the IAA’s review process; and enclosed a copy of the delegate’s protection visa decision record. That decision record records the delegate’s engagement with and analysis of the applicant’s claims and evidence, and the findings in relation thereto.
In short, the delegate found the applicant’s account and evidence in relation to his nationality, departure from Iran, political activities, and the potential for his activities to become subject of investigation by Iranian political groups, all to be credible and plausible. The delegate did not accept, however, that the applicant was being investigated due to his political opinion “demonstrated in his photographs”. The delegate assessed the applicant’s claims against Australia’s protection obligations and the criteria relevant for the grant of a SHEV, and was not satisfied that the applicant would face a real chance of persecution should he be returned to Iran. On that basis, the applicant failed to satisfy the criteria in ss 5H(1) and 36(2) of the Act, and could not be granted a SHEV. The delegate similarly considered whether, nonetheless, the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(aa), finding there was no real chance that the applicant would suffer significant harm if returned to Iran. On the same day as the delegate’s decision, the applicant was notified the passport which he had provided to the delegate had been seized under s 487ZJ(1) of the Act as a ‘bogus document’ obtained by fraud.
IAA PROCEEDING
On 20 November 2019, the applicant, by his legal representative, wrote to the IAA requesting it provide the applicant with a copy of the audio-video recording of the SHEV interview, copies of the applicant’s completed visa application forms, and all documents and evidence provided by the applicant to the Department in support of his visa application. The applicant’s legal representative further queried the IAA why the applicant had not yet been provided any acknowledgment that his matter had been received by the IAA for review. On 28 November 2019, the IAA wrote to the applicant by his legal representative, advising him that his case had not yet been referred to it by the Department, and on 12 December 2019 the IAA again wrote to the applicant confirming it had received a referral of the applicant’s matter from the Department. The 12 December 2019 correspondence enclosed information relevant to the review process and directions for the applicant to provide information to the IAA. On the same day, the IAA provided the applicant with copies of the materials he had requested, including a recording of the SHEV interview.
On 7 January 2020, the applicant, by his legal representative, provided the IAA with written submissions in support of the IAA’s review of the delegate’s decision. The submissions recounted the delegate’s findings in relation to the applicant’s claims and evidence, noted the matters on which the delegate relied or placed weight, and outlined the questions to be determined by the IAA in determining the review. The applicant explained that the delegate:
·was not satisfied that he pursued photography or used photography as an outlet for his political opinion, or that he was ever of adverse interest to any group or person because of his photography;
·did not accept that he had openly expressed his political opinion in other ways whilst residing in Iran, or during his residence in Australia, other than taking photos and attending public gatherings;
·did not accept that he ever came to the attention of the Iranian authorities as a result of his photography in relation to anti-government gatherings;
·considered that he had not provided any further credible evidence of how he used his photography to express his political opinion, and afforded weight to the fact/s that:
·he had not been arrested following his questioning by authorities on the day of the Ashura celebrations in Tehran;
·his only interaction with the authorities was on the day he was questioned about the contents of his bag and photographing the general public; and
·he was not being investigated due to his political opinion, but the ‘Basij’(a paramilitary volunteer militia) may be investigating him under Art 619 of the Iranian Penal code in relation to his photography of the general public, which included photographs of women and children.
The applicant submitted that there were two questions for the IAA to determine, as follows:
(1)whether the applicant’s close association with the late Hoda Saber and Rooin Otoofat suggest that the applicant has had a political opinion with a profile which has portrayed him as a person of interest; and
(2)whether the applicant pursued photography or used photography as an outlet for his political opinion or that he was ever of adverse interest to any group or person because of his photography.
The applicant set out the basis on which he alleged the delegate had made incorrect findings and why, as a result, the decision ought be overturned. The applicant contended first that the delegate erred in finding that his political associations and ties with two named individuals, Hoda Saber and Rooin Otoofat, were not investigated or taken into account in assessing whether he faced a risk of harm, and contended that it should have been clear that his participation in political activities with those people was enough to make him a target of the Iranian authorities. The applicant argued second that the delegate had erred in rejecting that he had used photography to convey his political opinion. The applicant said that it was clear from his photography that he was portraying political opinion/s, being entrusted to take photographs for Mr Saber and Mr Otoofat in connection with their political activities, and that the delegate’s finding in that regard demonstrated a lack of understanding and knowledge of the political dynamics in Iran. The applicant said the fact he was not arrested is not evidence that he was not being targeted by the authorities, rather it is in accordance with the Iranian regime’s strategies for combatting political dissent. Finally, the applicant contended that the delegate accepted the Basij went to the applicant’s residence and confiscated his possessions, and that he was under surveillance by that organisation, but then failed to accept that the applicant had used photography as an outlet for his political opinion, notwithstanding that the applicant had been questioned and his equipment confiscated, in connection with his attendance at a meeting of political dissidents. The applicant also contended that the delegate placed disproportionate weight on the fact that he was not arrested following the last incident prior to him fleeing Iran, and that the delegate failed to consider the likelihood of the applicant being arrested following the incident prior to his departure, again notwithstanding the fact that the delegate accepted the applicant was under surveillance and had his possessions confiscated.
STATEMENT OF DECISION AND REASONS
On 20 January 2020, the IAA affirmed the delegate’s decision not to grant the applicant a SHEV, notifying the applicant of its decision by letter on the same day and enclosing a copy of its Statement of Decision and Reasons (Decision).
In its Decision, the IAA set out the application for review, recounted the information before it at [4]–[10], set out the applicant’s claims for protection at [11], before turning to make findings of fact in relation to the applicant’s evidence at [12]–[26]. The IAA concluded at [46] that the applicant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and failed to satisfy s 36(2)(a), further finding at [51] the applicant did not satisfy s 36(2)(aa).
The IAA summarised the applicant’s claims as follows: Decision at [11]:
·the applicant was born in Tehran in 1983; in about June 2009 he supported the ‘Green Movement’, a political party opposed to the Iranian regime, and its associated candidate Mir-Hossein Mousavi, and took photographs in support of the movement; his family were also involved in raising awareness for the movement and assisting its activities in the lead up to the 2009 Presidential elections;
·Mousavi’s father lived near the applicant, and Mousavi would visit his father on Fridays. The applicant would sometimes visit Mousavi at his father’s house, and on one occasion in the lead-up to the election, Mousavi told the applicant that he and his supporters were being watched and that the applicant should not speak with him;
·on 27 December 2009, the applicant was photographing the Ashura ceremony in Tehran, when some Basij or Sepah (Iranian Revolutionary Guard Corps) officers questioned him about his camera, and detained him in a basement for two nights without food. During his detention he was physically assaulted, threatened and coerced into signing a false statement admitting to working for foreign agencies and that he intended to give his photos to the BBC or CNN. He was told that he was going to be transferred to a prison, but a friend of his family got involved and secured his release;
·due to that incident, the applicant lost his government funded clients, and he began to notice people acting suspiciously on his street. In April 2010 he confronted a man who was following him, and an hour later a local Basij leader rammed his front door with a motorbike, rode inside and through the house, and shouted threats at the applicant, saying that the man knew the applicant was active in the election;
·the applicant stated that he was not a member of any political organisation, but that he supported certain leaders from 2008, and that he had been mentored by prominent anti-government intellectuals including Hoda Saber and Rooin Otoofat. The applicant said that he had attended their meetings and published photographs of them, including in the magazine ‘Iran Farda’;
·in 2013 he was present at one of Otoofat’s meetings at Otoofat’s home, when the house was raided by Iranian authorities. The authorities took the phones and wallets of those present and many items from the house, then made each person present complete forms with their contact details and sign a declaration stating that they had left unharmed. The following day, the authorities contacted the applicant asking him to come and collect his items, whereupon he was questioned about his political activities and opinions, and his connection with Otoofat and Saber. He was questioned at that time about his detention in 2009 and the identity of the person who had helped to secure his release, which the applicant was surprised to learn had been noted on his official record. He was required to sign a statement naming his mentor and connections, and recording details about the meetings he attended. The applicant was threatened by an officer during this questioning on the basis of his association with his mentors;
·upon his return from questioning in 2013, he discovered his home had been raided, his photography equipment broken, and many electronic items missing including his computer, CDs and an external storage drive which contained videos relating to vote-tampering and fabrication of votes in 2009;
·after this raid, he believed that the authorities had sufficient information to put him in jail, and he arranged to leave the country. He went to stay at his brother’s house while planning to leave, during which time the Iranian authorities attended his house looking for him; the authorities continued visiting the applicant’s house looking for him even after he had left Iran, and the authorities blocked his bank account for a period of six months;
·the applicant had not completed his compulsory military service, so was unable to obtain a passport. In order to leave Iran, a friend of the applicant arranged for the applicant’s brother’s passport to be renewed using a photograph of the applicant, and for the passport to be backdated to pre-February 2013, so that his departure just after renewing the passport would not seem suspicious; the applicant therefore departed Iran with a passport bearing his photograph, but his brother’s details: at [13];
·the applicant believes that if he returns to Iran, he will face a term of imprisonment of at least 10 years in isolation and will be tortured.
The IAA made several factual findings in relation to the applicant’s claims, including relevantly, by accepting:
·the applicant’s identity as claimed; and that Iran was the relevant receiving country: Decision at [12];
·that the applicant studied graphic design and worked as a freelance photographer in Iran, and that he and his family had some limited involvement in supporting Mousavi’s campaign in the lead-up to the 2009 Presidential elections; that his family were involved in supporting the campaign including by handing out flyers; that the applicant took photographs of the demonstrations and protestors; that the applicant spoke to members of the public in order to convince them to vote for Mousavi; that the applicant personally met and photographed Saber before Saber’s arrest and death; and that the applicant photographed Otoofat: at [13]–[14].
·that he took political and candid shots of Otoofat and Saber, and that some photographs showed the applicant together with those persons: at [13]–[14];
·that the applicant might be identifiable upon his return to Iran as a failed asylum seeker from a western country: at [14].
However, the IAA did not accept the remainder of the applicant’s claims and evidence, including by its findings that:
·the applicant was not being mentored by Otoofat or Saber, or that he was attending their meetings out of some commitment to their cause, because the applicant failed to give any detailed information about his political views in the SHEV interview and only spoke in basic terms about his political preferences: Decision at [16];
·the applicant did not know Mousavi, nor had he ever spoken to Mousavi. The applicant was never questioned about his contact or interactions with Mousavi; and he was not suspected or identified as a person of interest because of any connection or association with Mousavi: at [17];
·it was implausible that the applicant was detained in 2009 in relation to photographs he had taken, but his captors had not confiscated the relevant photographs, or that he would be released without any formal conditions or repercussions, on the intervention of an unnamed family friend, in circumstances where he was forced to sign a confession statement indicating that he intended to provide the photographs to western news agencies: at [18];
·the applicant had not provided any evidence to support his claim that he lost government funded clients, and the IAA was not persuaded of the applicant’s claims that he had been under surveillance, that he had confronted a man who was following him, or that the subsequent incident involving the motorbike occurred. The IAA found it implausible that the applicant would be surprised to learn that his 2009 detention was noted on his file, in circumstances where he was aware of the surveillance and harassment which followed the detention incident: at [19];
·whereas it was plausible that one of Otoofat’s meetings was raided in February 2013, the IAA did not believe that the applicant was present at that meeting, or that he was questioned or threatened in connection with his attendance as he claimed. The IAA appeared to disbelieve the entirety of the applicant’s account in relation to the February 2013 incident, including the raid on his personal home, on the grounds that it was implausible: at [20];
·the applicant was not being truthful about the circumstances in which he had departed Iran using a fraudulent passport, because of various purported inconsistencies between the evidence given in his written statement and at the SHEV interview, and because the applicant’s explanation about avoiding military service was implausible and inconsistent, his inability to recall his brother’s details in the interview was ‘concerning’ and that he had failed to provide a photograph of his brother to the Department or IAA to allow a comparison: at [21];
·based on the findings above, the applicant was not being truthful about the 2009 or 2013 incidents, and that those incidents did not occur, nor did the applicant illegally depart from Iran on a passport bearing his brother’s details: at [22]–[23];
·the applicant was never associated with Mousavi nor had he ever been questioned about his connections to Mousavi, Saber or Otoofat. The applicant was not of any concern to the Iranian authorities: at [24];
·notwithstanding the evidence before it in relation to the publication of the applicant’s photographs online or in magazines, the applicant’s website “bears no apparent relation to [the applicant]”, and the IAA was not satisfied that the applicant had a wide or public following. The IAA did not accept that the applicant had any intention of making a documentary about the 2009 Presidential elections as he had claimed in ‘the entry interview’, that he had tried to publish his photographs, or that he had attempted to raise his social media profile: at [25];
·the applicant’s claims in relation to his photography profile and political activities were embellished: at [25];
·the applicant did not have any adverse profile with the authorities in Iran, nor had he developed such profile since his arrival in Australia, or that he would engage in political activities through photography or otherwise if he returned to Iran: at [26].
Turning to its assessment in relation to the refugee criteria under s 5H of the Act, the IAA noted the test for whether an applicant had a well-founded fear of persecution under s 5J: Decision at [27]–[28], and referred to the Country Information reports prepared by the Department of Foreign Affairs and Trade in relation to Iran published in 2016 and 2018: at [30]–[31], and noted, based on that information, that it was not satisfied that the applicant’s role in Mousavi’s campaign, or the photographs that he took of demonstrations or demonstrators, was any more than low-level involvement: at [32]. The IAA was not satisfied that the photographs evinced the applicant’s political opinion nor that he had an identifiable political profile: at [32].
Noting it had rejected the applicant’s claims about the authorities detaining him in 2009 and the alleged surveillance which followed, and his account of the 2013 raid, the IAA concluded that there was no credible evidence that the applicant had ever come to the attention of the authorities in relation to his political views, or his connection to other persons of interest: Decision at [33].
The IAA repeated its rejection of the applicant’s claims to be associated with political figures at [34], noting at [35] that it accepted the applicant had ‘some anti-regime views’, but that those were not strongly held, and that the applicant was not intent on engaging in political activity: Decision at [35].
Noting the above, and the relevant country information, the IAA concluded that the applicant did not face any real chance of harm for any participation in Mousavi’s campaigns, or for his purported association with other political figures, or because of his photography: Decision at [36]–[37].
In relation to his status as a failed refugee, the IAA found that while the applicant may be identifiable to authorities as a failed asylum seeker, because he had no adverse profile prior to his departure from Iran, the applicant would not be of interest nor attract any adverse attention upon his return: Decision at [41].
The Decision also briefly considers the further claim raised by the applicant that he intended to make a film on the subject of homosexuality in Iran, but because it was difficult to speak openly about the subject in Iran, he had not been able to do so, and the person intended to be the subject of the documentary had not wished to proceed. The applicant gave evidence about some images he had created in relation to the documentary, and indicated that these were part of the reason/s why he left Iran. The IAA did not accept that any of the applicant’s activities in making a documentary about homosexuality motivated or formed part of the reasons for his departure from Iran, and the IAA was not satisfied the applicant had any continued interest in making that documentary: Decision at [40]–[45].
Turning to assess whether the applicant was nonetheless covered by Australia’s complementary protection regime under ss 36(2A) and 36(2)(aa) of the Act, the IAA decided that there was no basis on which to find that the applicant would face a real chance of significant harm for any of the reasons advanced in his claims: Decision at [49]–[50], and the applicant did not satisfy s 36(2)(aa): at [51].
For those reasons, the delegate’s decision was affirmed.
CONSIDERATION
By his amended application lodged on 17 June 2025, the applicant alleges under cover of three grounds that the IAA’s decision is affected by jurisdictional error, as follows:
(1) The Second Respondent acted outside its jurisdiction in considering the credibility of the Applicant, in particular at [16]-[26] and [33]-[35].
Particulars
In assessing the Applicant’s credibility, the Second Respondent:
(a) Went on a “quest to disbelieve”, failing to comply with the principles regarding assessment of credibility espoused in AVQ15 (at [16]-[26] and [33]-[35]).
(b) Ignored or overlooked relevant material and failed to consider the evidence as a whole (at [16], [21], [25]-[26] and [33]-[35]).
(c) Made findings that were erroneous or otherwise unreasonable (at [17], [19], [25]), and or
(d) In making plausibility findings on matters falling outside everyday or ordinary human experience, failed to rely on objective evidence, and erroneously used its own assumptions and views about human behaviour as a universal yardstick (at [17], [18], [20], [21]).
(2) The Second Respondent acted unreasonably in exercising (or failing to exercise) its discretion under section 473DC at [8].
Particulars
(a) An “information” gap arose as the Second Respondent had seen the demeanour of the Applicant and also apparently been shown a photo at interview. Both were relevant to the issue of credibility, a central issue in the case.
(b) The Second Respondent acted unreasonably in its consideration and failure to exercise its discretion to invite the Applicant to provide new information in circumstances where there was this “information gap”.
(3) The Second Respondent failed to consider all relevant information before it, thus failing to constructively exercise its jurisdiction.
Particulars
(a) The Second Respondent failed to consider the Applicant’s first entry interview (dated 16 May 2013), which contained relevant information, including to the issue of consistency of evidence.
During the hearing the applicant addressed these grounds beginning with ground 2, then ground 3, and concluding with ground 1. It is convenient to deal with the grounds in the same order.
Ground 2
By ground 2, the applicant contends the IAA acted unreasonably in exercising or failing to exercise its discretion under s 473DC of the Act. This is because there was said to be an evidence gap in assessing the applicant’s claims about his passport in circumstances where the passport was central to the issue of credibility. The applicant advances two bases which underpin his contention. First, he says that unlike the delegate, the IAA did not have the benefit of assessing his credibility by observing him in person. Second, the applicant says that the IAA did not have the benefit of viewing a photograph of the applicant’s brother apparently shown to the delegate, which purported to corroborate the applicant’s claims regarding the passport.
The applicant contends that, in the result, there was an “information gap” between what the delegate and the IAA respectively were able to observe. The applicant says this is analogous to ABT17 v Minister forImmigration and Border Protection [2020] HCA 34, 269 CLR 439. He says it was unreasonable for the IAA not to exercise its discretion to close this information gap in circumstances where credibility was a central issue, where the delegate had accepted the vast majority of the applicant’s substantive claims, including his claims about how the passport was obtained, and those findings were not shown to be contrary to incontrovertible facts or uncontested testimony, glaringly improbable, or contrary to compelling inferences. The applicant contends that it was unreasonable for the IAA not to exercise its discretion under s 473DC to invite him to provide further new information (the photograph), either in writing or at an interview.
The first respondent contends the IAA did not unreasonably fail to exercise its discretion under s 473DC of the Act as the applicant alleges. The first respondent says the IAA explained at [8] of its Decision why it elected not to exercise that power, and the applicant has not identified any defect in those reasons. The first respondent says that the applicant’s reliance on ABT17 is misconceived because the instant case is not analogous. Here, the first respondent contends, the IAA’s decision turned on inconsistencies and implausibility and there is no basis for contending the IAA may have differently assessed the material or claims if it had a visual impression of the applicant’s demeanour.
The first respondent submits that in any event, the IAA’s decision not to obtain further information was not legally unreasonable because:
(1)there is nothing in Pt 7AA of the Act which suggests that the IAA is unable to make adverse findings to an applicant where the delegate has made favourable findings on the same issue. And under Pt 7AA it was open to the IAA to make findings which were different to those made by the delegate, and s 473DA excludes any common law obligation to invite an applicant to respond to any adverse findings that the IAA might make;
(2)this is not a case where the IAA made its decision on a basis that had not previously been raised. Here the IAA’s findings were based on information the applicant had provided to the delegate, which was explored at the visa interview. And the applicant made submissions to the IAA;
(3)the applicant was given, but failed to take up the opportunity, to provide his brother’s photograph to the delegate, for which the applicant now says the IAA could easily have asked.
The first respondent’s contentions are not accepted. Section 473BA of Pt 7AA provided an outline of the review process for fast track decisions as follows:
473BA Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.
Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to the Immigration Assessment Authority.
Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.
The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers and other Reviewers are engaged under the Public Service Act 1999.
In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.
The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.
The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.
Section 473CA of the Act provided that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Section 473CB required the Secretary to give to the IAA review material in respect of the fast track reviewable decision which included the reasons for the decision, the material provided by the applicant to the person making the decision and any other material in the Secretary’s possession or control and which the Secretary considered to be relevant to the review. By s 473CC, the IAA was required to review a fast track reviewable decision which was referred to it under s 473CA and the IAA could affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with any directions or recommendations as the regulations permit the IAA to make. Section 473DB of the Act provided that the IAA must review a fast track reviewable decision, in effect, on the papers, without accepting or requesting information and without interviewing the applicant.
Section 473DC of the Act contained a discretionary power to obtain new information which the IAA considered may be relevant and which was not before the Minister (Delegate) when the Minister (Delegate) made the decision, and provided:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act restricted the ability of the IAA to consider any new information for the purposes of making a decision, and provided:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The fast track review process contemplated an on the papers review. The IAA was to conduct the review by considering the material that was before the earlier decision-maker and such other material as the Secretary may have provided. And it was required to do so without accepting or requesting information and without interviewing the applicant. “New information” is a document or information which the IAA may obtain if the new information was not before the Minister when the Minister made a decision and the IAA considered the information may be relevant. But the IAA could only consider any new information in making a decision if it were satisfied that there were exceptional circumstances to justify considering the new information and the applicant established to the IAA’s satisfaction either that: the new information was not or could not have been provided to the Minister before the Minister made the decision; or the information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims.
As the IAA here conducted an on the papers review, it had to rely on the audio or transcript of the applicant’s SHEV interview, which was conducted in-person with the delegate. And so, unlike the delegate, the IAA did not have the benefit of assessing or having a visual impression of how the applicant appeared during the interview, that is, it could not observe his demeanour. The IAA took a different view to the delegate in its assessment of the applicant’s credibility. This it was entitled to do, because Pt 7AA of the Act contemplated that the IAA would evaluate for itself the material considered by the delegate. It was therefore open to the IAA to disagree with the delegate’s evaluation of the material, and it need not have provided to the applicant an opportunity to respond: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12, 258 FCR 551 at [72] and [76]. But that is not the concern the applicant agitates by ground 2.
The delegate accepted the applicant’s claims that he was approached by armed men in plain clothes and questioned about the contents of his bag, and that he was kept overnight and released the following morning. Although the delegate found the applicant was not being investigated because of his political opinion demonstrated by his photographs, the delegate accepted that the Basij may have been investigating him under Article 619 of the Iranian Penal Code, as he admitted to taking photos of the public, including women and children at public events. The delegate found that the applicant obtained a bogus Iranian passport and departed Iran illegally using the bogus document and he could now be identified as a person who has lived and claimed asylum in Australia. The delegate recorded that during the SHEV interview the applicant provided a consistent account of his life in Iran; that he was able to state confidently where he went to school and worked, and how the impact of life in Iran affected him and his family; and the delegate was satisfied the applicant’s testimony during the SHEV interview was credible.
The IAA appears to have taken a different view about the applicant’s credibility. “Significantly”, in assessing the applicant’s credibility, the IAA reasoned that it held concerns with the applicant’s claims that he was unable to obtain his own passport as he had not completed military service, and that he departed Iran using a passport fraudulently backdated and bearing his photograph, but his brother’s name and details: Decision at [21]. Relevantly, the IAA reasoned: at [21]
The applicant claims that while he changed his hair when posing for the passport photograph to look more like his brother, he does look sufficiently alike (sic) his brother, so as to pass for him. However, while the applicant and his representative both offered at different points in the SHEV interview to provide a photograph of the applicant’s brother, to allow the delegate’s comparison of their photographs, no such photograph has been provided, to the delegate, or to the IAA.
I accept that the applicant’s claim about how he obtained a passport was important to the issue of credibility. I also accept that the existence of a photograph of the applicant’s brother was important to that issue. Indeed, in the passage above the IAA appears critical of the applicant in failing to provide it with a photograph of his brother. This suggests that the IAA considered viewing the photograph to be important.
Although it is not in dispute that the delegate was not provided with a photograph of the applicant’s brother, it is unclear whether the delegate was shown a copy. A transcript of the SHEV interview: Exhibit A2, Affidavit of Nathan Stormont (17 June 2025), annexure NS-6, conducted with the applicant on 31 October 2019, discloses the following exchanges. First at T pp 9–10, NS-6 pp 16–17:
Q60. Okay. So I'll ask the question again: what documents were used to obtain this passport?
A My brother's birth certificate, I think his national ID card, I think so. And then address and the phone number and there are details that he needed to put down in the form, the application form.
Q61. Okay. But your photo?
A Yes, my photo. I have the high quality of the same photo in my mobile. I can show you to make sure that's me.
Q62. Do you have a photo of your brother?
A Not for the moment but I can find it.
Q63. Okay, yes. So there was no problems because you've got your – your look different to you – do you look like your brother?
A If you give me a second I could - - -
Q64. We can do that afterwards but in your opinion, do you look like your brother?
A Yes, my features, facial features, yes, and my hair, yes, we look like each other. This is a like a – I made this hair look like – I made my hair look like this with the powders.
Q65. So you changed your hairstyle, took a photo of yourself?
A His hair is always like that, all right? But he had some powder or something to look – look like the brother.
Q66. Okay. Photoshop?
A No, no.
Q67. No, real stuff?
A (Direct) Yes, in front of the camera.
Q68. Okay, okay. So you did the photo? You did the photo?
A (Through interpreter) Yes, at home. (Direct) Fraudulently obtained.
Q69. That's okay, yes. All right, let's continue. Now, do you have an Australian licence? So this passport is a genuine passport.
A Yes.
Q70. But fraudulently obtained – is that correct?
A All the details are my brother's. Only the photo is mine.
(emphasis added)
Second, at T pp 16–17, NS-6 pp 23–24:
Q129. So in Iran, military service is mandatory?
A Yes.
Q130. So you managed to get a passport and departed from the Tehran airport without being questioned why you haven't done military service?
A This is my brother's – (indistinct). My brother had done the military service.
Q131. Oh, your brother.
A (Direct) The information belongs to my brother.
Q132. Your brother, so - - -
A The picture is just mine.
Q133. Okay. So you managed to depart on your brother's details from the airport and you didn't do military service. I'm sure you said you were exempt because you were looking after your mother in one of your applications.
A (Through interpreter) Maybe it's the translation. I haven't done the military service, maybe in translation they have misinterpreted.
Q134. Okay, so you just didn't – you just didn't do military service, that's it?
A Yes.
Q135. Now, your brother has completed?
Third, at T pp 50–51, NS-6 pp 57–58:
MR GLEESON: The first issue about - the first issue about leaving the airport, being able to go through the airport without being detected - the first thing is that it appears that the DFAT information is probably - is probably fairly fresh. I think you're referring to facial recognition technology, that my instructions are wasn't being used in 2013. Maybe now, maybe fairly recently, but not in 2013. And the fact is that he didn't have a false passport, he had a real passport issued by the government that would have been identifiable as a real passport. They might have been able to identify a forged passport, but this one was not forged. It was real. It had false information, but it was real. Therefore the likelihood of being able to go through undetected was a great deal higher than if there was bribery involved with a false passport, and I'd like to ask [ATX20] to explain the actual physical process of how he went through.
ATX20: (Direct) Can I say in English?
MS SEVSKY: Yeah, yeah, easier.
ATX20: It was - it was a normal queue. (Indistinct words) we had a passport in my hands, and like it's small queue, the bottom was the wood and the glass, small window, just pushed through the window my passport and they go and do something and didn't open it. Just looked at it and then he started - it was - it takes 10 seconds without anything, 'Next person. Next person.' (Indistinct.)
MS SEVSKY: Okay. No problems.
MR GLEESON: If there's any further issues about the similarity between he and his brother with the photo we've already shown you on the phone a picture of his brother. We're happy to send those to you so you can make the comparison if you would like that.
MS SEVSKY: That will be great if you could.
MR GLEESON: Okay.
MS SEVSKY: Yep.
(emphasis added)
Several things may be noted from the transcript extracts. In the extracted passages immediately above, Mr Gleeson, who appears to be assisting the applicant, makes a submission that if there are “further issues” about the similarity between the applicant in connection with “the photo we’ve already shown you on the phone a picture of his brother”, the photo can be sent to the delegate for comparison. The delegate’s response indicates that the photo should be provided but the delegate does not demur from the proposition Mr Gleeson advanced—that the photo of the applicant’s brother had already been earlier shown to the delegate. However, in the earlier extracted transcript it appears as though the photo of the applicant’s brother was mentioned, the applicant sought to find it and the delegate indicated that the applicant could “do that afterwards”. There is nothing else in the transcript which would indicate that the photo of the applicant’s brother was shown to the delegate.
At [8] of the Decision, the IAA sets out its reasons for not exercising its power under s 473DC of the Act as follows:
8.Similarly, to support the applicant’s claims that he travelled on his brother’s passport, the applicant and his representative both offered - at different points in the SHEV interview - to provide a photograph of the applicant’s brother, to allow the delegate’s comparison of their photographs. However no such photograph has been provided, to the delegate, or to the IAA. As above, I am satisfied the applicant and his representative were on notice as to the importance of the applicant providing his claims and evidence during the SHEV process and I am satisfied he has had ample opportunities to provide the photograph/s for comparison. As such, (sic) while I have considered exercising my discretion pursuant to s.473DC, I am not satisfied the circumstances warrant inviting the applicant to provide such photographs now.
These reasons do not engage with the real possibility that the photograph of the applicant’s brother was shown to the delegate as asserted by Mr Gleeson during the interview. And while the reasons above suggest that the applicant offered to provide to the delegate the photograph of his brother during the interview, this does not accurately describe what occurred. As the transcript earlier extracted shows, the applicant was asked whether he had a photograph of his brother, to which he responded, “Not for the moment but I can find it”. The applicant then asked for a second to locate the photograph and the delegate responded, “We can do that afterwards but in your opinion, do you look like your brother?”.
Because of the uncertainty about whether the photograph of the applicant’s brother was shown to the delegate and the real possibility that it was, as asserted by Mr Gleeson during the interview, I accept there was an information gap between what the delegate was able to observe and what the IAA was able to observe. And as already noted, the passport was important to the issue of credibility, and so too was the issue of the photograph of the applicant’s brother to allow a comparison of likeness, to assess the plausibility of the claims about how the applicant obtained the passport. In making its credibility assessment the IAA could only rely on the audio recording and the transcript of the SHEV interview. Unlike the delegate, the IAA did not have the benefit of observing the applicant in person in assessing credibility.
The delegate accepted the applicant’s explanation as to how he obtained the passport. But the IAA did not, and considered this as significant in its credibility assessment. As the applicant has submitted, the delegate’s acceptance of his explanation was not evidently contrary to any incontrovertible facts or uncontested evidence, nor was it evidently glaringly improbable, or contrary to compelling inferences. Indeed, the transcript extracted earlier records an exchange between the delegate and the applicant about the similarities in features between the applicant and his brother: Exhibit A2, Affidavit of Nathan Stormont, annexure NS-6, T p 10, NS-6 p 17, Q and A 64–68.
As already noted, the first respondent contended that the facts of the present case are not at all analogous with ABT17 because the IAA’s decision turned on inconsistencies and implausibility in the factual claims made by the applicant. The first respondent says that there is no basis in the IAA’s reasons or in any other material before the Court to consider that his claims may have been differently assessed by the IAA if it had a “visual impression” of his “demeanour”. But this contention cannot be accepted because the IAA’s assessment of inconsistencies in the applicant’s passport claim is arrived at through flawed reasoning.
The transcript earlier reproduced, appearing as the second extracted passages, suggests that the applicant was challenging the proposition that he had earlier stated in the arrival interview that he had been excused from military service. The applicant says, through the interpreter, that “Maybe it’s the translation. I haven’t done the military service, maybe in translation they have misinterpreted”. As part of its concerns about the applicant’s credibility about how the applicant had obtained a passport the IAA reasoned: Decision at [21]
The applicant claims he was unable to obtain a passport in his own name because it was too risky and he had not completed military service. However, the applicant’s evidence as to why he had not completed military service, and how he had managed to avoid it was unconvincing. When asked about it in his Entry interview, the applicant stated he had “supported my mum and was excused” but he resiled from this in the SHEV interview, insisting he had not received an exemption (for any reason); he just hadn’t done it.
(emphasis added)
The extracted transcript does not disclose the applicant resiling from what he said earlier during the entry interview. Instead, the applicant disputed the delegate’s recounting of what was said, and posited that in translation, what he said was misinterpreted. There was no resiling. The applicant was not abandoning something that he had earlier said. Instead, he was maintaining that he never said it and if that is what is recorded in his answers, those answers may have been wrongly translated. The SHEV interview was not the first occasion on which the applicant had complained about the quality of the interpreter assigned during the entry interview. In a statutory declaration made by the applicant on 30 May 2017 the applicant said:
3.As I have previously raised with the Department of Immigration, there were a number of issues with the interpreter I was assigned for my entry interview, including the fact that he spoke an Afghani dialect of Farsi, was impatient and angry, and cut me off when I was trying to give answers. I have provided additional information in this statement and am happy to provide more at the interview. I would be grateful if I could be assigned an interpreter who speaks the Iranian dialect of Farsi for my protection visa interview.
. . .
42.I have never had a passport. In Iran, you cannot apply for a passport unless you have completed military service. Because I have not completed military service, I cannot apply for a passport unless I pay a bribe. But this can take a lot of time.
It is evident from paragraph [3] of the applicant’s declaration that the provision of additional information was in part motivated by his concern about the adequacy of the translation given by the interpreter at the entry interview, a complaint he says he had previously raised. Paragraph [42] of the statutory declaration sets out that the applicant had not completed military service and therefore could not obtain a passport. He does not say he was excused from service. This is consistent with the information he provided to the delegate during the SHEV interview where he also reiterated his concern about the adequacy of the interpreting service he was provided at the entry interview. It is also consistent with what the applicant said during the 16 May 2013 entry interview where he is recorded as saying (through an interpreter):
I never went to start my military service because I had to maintain the living for the family financially. I had to support them. I didn’t go to military service.
The context for the answer as recorded is set out below (transcription of audio beginning at 20:49 mins):
DPT OFF: Do you have any diploma?
APP:I have finished high school and also an art college. And um…to get my certificate from the University I had to finish my military service. Unless I do that I will not get any certificate from the University.
DPT OFF:OK. How long do you have to…to finish your military…to finish your compulsory military?
--- at 22:13 mins ---
APP: I never went to start my military service.
DPT OFF: OK.
--- at 22:25 mins ---
APP:Because I had to maintain the living for the family, ah financially I had to support them, I didn’t go to military service.
DPT OFF: Alright.
APP: (In Farsi - not translated)
DPT OFF: Which University did you attend?
APP: (Exchange between applicant and interpreter in Farsi)
APP:OK. The exact name of the university is [indistinguishable] Islamic Revolution
DPT OFF: OK. and what date did you attend this university?
APP: I entered university ‘81 and finished ‘84.
DPT OFF:Mm hm. Thankyou. And do you know the number on any of your documents?
APP: Do you mean my education…
DPT OFF: No like, your national ID Card, do you know the number?
At a further entry interview conducted on 27 May 2013, the following exchange is recorded:
--- at 26:05---
DPT OFF: Why did you not do compulsory military service?
(Applicant gives answer in Farsi and the interpreter commences translation while Applicant is in mid-sentence at 26:18)
--- at 26:18---
APP (via interpreter): So because uh…I supported my mum, and I was excused.
The IAA does not mention the applicant’s answer about military service given during the entry interview conducted on 16 May 2013, nor does the IAA refer to the applicant’s statutory declaration of 30 May 2017 in which he deals with his lack of military service. The answer given by the applicant in his entry interview conducted on 16 May 2013 is consistent with the answer that he gave during the SHEV interview. As noted above the translated answer given during the entry interview on 27 May 2013, on which the IAA relied, was one that was interrupted by the interpreter in commencing the translation before the applicant had apparently completed his answer in Farsi. The IAA does not make any mention of the applicant’s complaints both in his declaration and during the SHEV interview about the quality of the translation and his explanation for the identified possible inconsistency as being attributable to a mistranslation. Having regard to the state of the evidence that was available to the IAA, the IAA either overlooked or ignored the totality of the evidence about the applicant’s reasons for not undertaking military service. Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may be shown if the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inference or conclusion drawn or factual finding made. Making a finding on a fact or issue by drawing an inference or a conclusion which lacks a logical connection with the evidence might also establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1 at [21]. The IAA’s finding that the applicant had “resiled” at the SHEV interview from an earlier statement given during the 27 May 2013 entry interview was illogical or irrational. On the probative evidence before the IAA discussed above, a logical or rational decision-maker could not come to the same conclusion as did the IAA on that issue.
The information gap is thus twofold. First, the delegate was able to assess the applicant’s credibility with the benefit of a visual impression of the applicant because the applicant attended the interview in-person. The IAA did not have that benefit in making its assessment of the applicant’s credibility. It could only rely on the written and audio material. Second, there is the uncertainty of whether the delegate was shown a photograph of the applicant’s brother. Since the IAA itself considered the passport issue as being significant in its assessment of the applicant’s credibility, the information gap had the real potential of impacting the IAA’s assessment of his credibility. The applicant’s demeanour in assessing credibility was “new information” capable of being obtained by the exercise of power under s 473DC of the Act, for the reasons explained in ABT17 at [16]:
There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility and which was not before the Minister when the delegate made the referred decision. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice.
(Footnotes omitted)
It may be accepted that the mere existence of an information gap by reason of the IAA not being able to visually observe the applicant’s demeanour to assess credibility will not always or necessarily result in the IAA being disadvantaged compared to the delegate. As noted in ABT17 this may be because the applicant’s credibility may not have a significant bearing on the outcome, because of the availability of other material such as country information, to determine whether the criteria for the grant of a protection visa had been met. But the IAA will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio-recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given: ABT17 at [25]. Given the significance of the applicant’s credibility assessment brought about by the IAA’s rejection of the applicant’s claims about how he came to obtain a passport—claims which the delegate had accepted—this appears to have happened here. The IAA’s reasons for not inviting the applicant are not articulated at all, and its reasons for not seeking a photograph of the applicant’s brother are given without any reference to, nor any apparent consideration of, Mr Gleeson’s suggestion that the photograph was shown to the delegate, nor to the evident uncertainty in the material whether the delegate was in fact shown the photograph.
In these circumstances I agree it was unreasonable for the IAA not to exercise its discretion under s 473DC to invite the applicant to provide new information to fill the information gap. Given the significance that the passport issue had to the IAA’s assessment of the applicant’s credibility, and the significance of the applicant’s credibility in the IAA’s rejection of the applicant’s claims, I consider that the error was material, in the sense that there is a realistic possibility that the decision that was made could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321 at [7].
The applicant has made good ground two.
Ground 3
By ground 3 the applicant alleges the IAA failed to consider his first entry interview (conducted on 16 May 2013) which contained information, including that relevant to the issue of consistency of the applicant’s evidence. The applicant says that in making the IAA’s adverse credibility findings it ignored or overlooked the fact that two entry interviews were conducted. He says the IAA did not refer at all to the applicant’s first entry interview dated 16 May 2013, only paying regard to the second. In doing so, the applicant contends, the IAA failed to consider all the relevant material before it and failed to constructively exercise its jurisdiction.
It may be accepted, as the first respondent contended, the onus of establishing an inference that material was overlooked is not lightly discharged: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, 252 FCR 352 at [48]; EGY18 v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2020] FCA 796 at [44]–[49], and such an inference is not readily drawn where the reasons are otherwise comprehensive and the issue has been identified at some point: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593 at [47]. It can also be accepted that the IAA was not required to refer to each piece of evidence in its written reasons: Applicant WAEE at [46]. That a particular piece of information was not referred to may simply indicate that it was considered not to be material or was not given any weight, and the attribution of weight was a matter for the IAA.
However, the first respondent’s contention that there is no basis upon which to infer that the IAA failed to consider the first entry interview cannot be accepted. And although the IAA said at [4] of its Decision that it had regard to the review material given by the Secretary under s 473CB of the Act, which included the first entry interview, the statement is generic and does not, without more, show engagement with the material. By itself, that statement will not show that material was not overlooked.
There are several reasons evident from the IAA’s reasons in the review material for inferring that the IAA did not consider, or overlooked, the first entry interview conducted on 16 May 2013. First, there is little doubt that two entry interviews were conducted. These were conducted on different days (16 and 27 May 2013), and they were conducted by different officials. There are two recordings of the interviews. The IAA makes four references to “Entry Interview” in its Decision at [21], [25], [43] and [44], and although it may be accepted that the two interviews were part of the same entry interview process and are apt to be described collectively as an “entry interview”, there is no acknowledgement in the reasons that two interviews on separate dates were conducted.
Second, on each of the four occasions that “Entry interview” is mentioned in the IAA’s decision, the IAA is referring to material in the second interview, conducted on 27 May 2013:
·at [21] in concluding that the applicant had resiled from a statement during the entry interview, it referred to his explanation for not undertaking military service as ‘he had “supported my mum and was excused”’. This is from the 27 May 2013 interview;
·at [25] the reference to the applicant’s claims about his intention to make a documentary on the 2009 election as suggested in the entry interview, is from the 27 May 2013 interview;
·at [43] the reference to the applicant’s additional claim that he was trying to make a movie about homosexuals is from the 27 May 2013 interview; and
·at [44] the reference to the applicant’s reason for leaving Iran was because he would be killed, is also from the 27 May 2013 interview.
Third, save for military service, discussion of which, as already noted, the IAA appeared to have overlooked, none of the other matters identified above are discussed or mentioned in the 16 May 2013 interview.
Fourth, important evidence about the applicant’s reasons for not undertaking military service is given in the 16 May 2013 interview as earlier set out, but is not recorded anywhere in the IAA’s reasons. The evidence is relevant because it is about the circumstances that necessitated the applicant obtaining a passport in the manner he says he did. It is relevant because it places a different complexion on whether there is inconsistency. It is relevant because it is consistent with the evidence the applicant gave during the SHEV interview, and it is relevant in assessing the applicant’s evidence and submissions about the quality of the interpretation, and his explanation that the interpretation may have contributed to the suggestion that he gave an earlier inconsistent statement.
I therefore accept that the IAA failed to consider relevant material, namely the 16 May 2013 interview. Nor is it evident, as earlier mentioned, that the IAA considered relevant passages of the applicant’s statutory declaration of 30 May 2017. As I noted earlier, on the probative evidence before the IAA, a logical or rational decision-maker could not come to the same conclusion as did the IAA on that issue whether the applicant had resiled from his earlier statement as to the reasons for not undertaking military service. This impacted the IAA’s assessment of the applicant’s claims about the circumstances of obtaining a passport and, overall, these matters significantly contributed to the IAA’s adverse assessment of the applicant’s credibility. Consequently, the first respondent’s contention that if there is an error, there is also no realistic possibility that a different outcome may have resulted had the error not occurred, cannot be accepted.
For these reasons the applicant has made good ground 3.
In the circumstances it is not necessary to consider ground 1.
DISPOSITION
The applicant has shown by grounds 2 and 3 of his judicial review application that the decision of the IAA is attended by jurisdictional error. The application for the relief sought will be granted. The decision of the IAA will be quashed, and the review of the delegate’s decision will be remitted to the Administrative Review Tribunal for it to determine according to law.
The applicant wished to be heard on costs in the event he was successful. I consider the first respondent should pay the applicant’s costs as agreed. In default of agreement by 15 September 2025, the applicant should file and serve submissions on costs by 22 September 2025. The first respondent should file and serve any submissions in reply by 29 September 2025, and the question of quantum of cost will be determined on the papers.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 1 September 2025
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