BJW19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1534
•19 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1534
File number(s): ADG 118 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 19 September 2025 Catchwords: MIGRATION – temporary protection visa – decision of the Immigration Assessment Authority – whether IAA made irrational finding – whether IAA understood and engaged with applicant’s claim – whether IAA should have invited applicant to interview – unreasonable exercise of s 473DC – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473CB, 473DC, 473DD, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[2003] HCA 30; 198 ALR 59
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 22 May 2025 Date of hearing: 27 May 2025 Place: Adelaide Counsel for the Applicant: Mitchell Simmons Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 118 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJW19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
19 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the then Immigration Assessment Authority made on 11 March 2019.
2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.
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 GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Temporary Protection Visa (TPV). For the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has found jurisdictional error in the Tribunal’s decision. On that basis, the application has succeeded.
BACKGROUND
On 4 July 2013, the applicant arrived at Christmas Island along with his parents and other family members as an unauthorised maritime arrival (Court Book (CB) 5-6, 8-11, 102). He is an Iranian citizen of mixed Arab and Persian ethnicity (CB 95, 97).
On 30 July 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1-26). In that interview, he claimed that he left Iran because he had been threatened by the family of his then-girlfriend on the basis of his ethnicity (CB 14-15).
On 19 July 2016, the applicant’s parents were invited to apply for a TPV or a Safe Haven Enterprise (subclass 790) visa (CB 80-81). On 12 September 2016, the applicant and his mother were included in his father’s TPV application on the basis that they are members of the same family unit (CB 82-173). They were assisted by a registered migration agent and the application annexed supporting documents including character reference letters, a statement of claims, identity documents and statutory declarations (CB 174-199).
On 21 March 2018, the applicant was invited to attend an interview scheduled for 6 April 2018 (CB 211-212).
Following the interview, on 8 April 2018, the applicant’s migration agent provided the Department with further written submissions and supporting photographic evidence, and on 14 April 2018, with another reference letter (CB 215-228).
On 15 November 2018, a delegate of the Minister refused to grant the applicant a TPV (the visa) (CB 229-255). The delegate ultimately determined that the applicant was not a member of the same family unit and therefore considered his protection claims independently.
On 21 November 2018, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 256-257).
On 26 November 2018, the applicant appointed a new legal representative (CB 264).
On 12 December 2018, the applicant’s representative requested an extension of time to provide further supporting material on the basis that the applicant’s former migration agent had acted negligently and fraudulently (CB 272-273).
On 18 December 2018, the applicant’s representative provided written submissions addressing new information and exceptional circumstances for the purpose of s 473DD of the Migration Act 1958 (Cth) (the Act) including, inter alia, the former migration agent’s conduct and the impact this had on the applicant’s claims (CB 276-280). The applicant’s representative contended the circumstances were such that the applicant should be invited to a new interview pursuant to s 473DC. The submissions were accompanied by several supporting documents including a statutory declaration by the applicant, letters of support, a copy of the complaint to Office of the Migration Agents Registration Authority about the former migration agent, and photographs and evidence in support of the applicant’s claims, including accredited translations (CB 281-370).
On 11 March 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 374-391). The IAA had regard to the submissions and supporting material received on 18 December 2018 (CB 375 at [4]) but declined to invite the applicant to provide further evidence at an interview (CB 377 at [10]).
On 3 April 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Act.
THE IAA’S DECISION
The applicant’s grounds are narrow and challenge two specific aspects of the IAA’s reasons: its decision to not invite the applicant for an interview and its findings in respect of the applicant’s protest activity and religious beliefs.
The IAA’s reasons for declining to invite the applicant to an interview
The IAA set out that it had listened to the recording of the applicant’s interview before the delegate. The IAA noted that the applicant, and his former agent, were clearly ill-prepared for the interview having mistakenly believed that the applicant was there in his capacity as the member of his father’s family unit. The IAA noted that neither the applicant nor his former agent had expected to say anything in support of the applicant’s own claims. The IAA also noted that certain matters had not been translated for the applicant at the interview.
The IAA found that the applicant was ill-prepared at the interview and unaware of some of the representations which were made on his behalf. On this basis it was prepared to accept new information provided by the applicant’s new agent including a statutory declaration from the applicant.
The IAA considered whether to obtain further information from the applicant but determined this was not necessary as it found that the information before it provided a sufficient basis to assess the applicant’s claims.
The IAA’s findings in respect of the applicant’s religious beliefs and protest claims
The IAA observed that the applicant has a brother and two sisters who have been granted asylum in Australia. His two sisters are Christians who evangelised to the applicant’s father, who is now also Christian. The IAA set out the applicant claim that he would be subject to adverse treatment in Iran because his family is Christian. The IAA noted he claims he believes in God but objects to engaging in religious practices like praying, and says he does not follow any particular religion. The IAA set out that the applicant claimed that he used to practice Islam in Iran to avoid trouble, but now refuses to follow Islamic practices and claims he will share his views openly in Iran. The IAA set out that the applicant claimed, that if questioned about religion, he will say he is not Muslim and he would be imprisoned for being an apostate. The applicant also claimed that he participated in two protests against the Iranian government in Adelaide in 2017. The applicant claimed the Iranian government will be aware of this and that he would be harmed in Iran on the basis that he is a political activist.
The IAA accepted that the applicant’s sisters and father practice Christianity, attending church weekly and evangelising, noting that one of the sisters is an MC at the church and has requested that nobody takes photos of the services so as to ensure that no photos of attendees make their way back to Iran (at [19]).
The IAA set out the applicant’s claims with respect to his own beliefs, namely, that he believes in God but is not religious, and that he freely shares his spiritual beliefs in Australia and would continue to do so if he was returned to Iran (at [20]-[23]). The IAA expressed its concerns about these claims, particularly given inconsistencies in the applicant’s evidence.
The IAA then set out its factual findings with respect to the applicant’s political claims in his involvement with protests in Iran (at [25]-[26]). The IAA accepted that he was briefly detained and threatened by Basij because of his participation in the Green Movement protests, but that no further action was taken against him (at [25]).
The IAA accepted that the applicant attended a protest in Australia in January 2018, and it accepted that he did so for genuine reasons and not for the purpose of bolstering his protection claims. The applicant claimed to have attended a second protest but did not provide any evidence or give any further details of the event. The IAA had regard to footage of the January 2018 protest but was not satisfied that the applicant played a prominent role or that he could be (or has been) identified by the Iranian government in the footage. The IAA was not satisfied that the Iranian government is aware of the applicant’s involvement in the protest, or that the applicant has been involved in any other political activity in Australia (at [26]).
The IAA accepted that he may share his religious views amongst friends in Iran and that he would not engage in religious practices, but that he would not seek to publicise his views or evangelise against Islam (at [32]). The IAA found that he would not openly flout his position on religious practices and that this would be primarily out of respect for others rather than fear of harm from authorities. Having regard to country information, the IAA was satisfied that Iranian authorities would have little interest in the applicant’s privately held religious beliefs or require him to make outward displays of Muslim faith. The IAA was not satisfied that he would identify as anything other than Shia Muslim when filling out paperwork in Iran or that he was motivated by fear in this regard, including with respect to employment prospects (at [34]).
The applicant claimed to fear an increased level of scrutiny due to his father having been a member of the Foundation of Martyrs and Veterans Affairs, however the IAA noted that his father had been granted a protection visa in Australia and so the circumstances of increased scrutiny no longer exist. The IAA was not satisfied that Iranian authorities are aware that his family in Australia are Christian, or that there is more than a remote chance that his family’s religious activities, or his own religious opinion, would bring him to the adverse attention of Iranian authorities (at [34]). While the IAA accepted that the applicant may discuss his religious views with friends, as well as his views on human rights and freedom of speech, the IAA found he did not have a political profile in Iran (at [35]).
The IAA was satisfied that the applicant has only ever protested at times of general uprising and he has not taken on prominent roles in such protests or expressed interest in doing so. The IAA acknowledged the applicant’s claim that he was briefly detained in 2009 for participating in a protest but that no further action was taken against him and he did not claim to be harmed. The IAA found it would be so remote that authorities would even have a record of his involvement in past protests given the passage of time, and that there was only a remote risk he would be targeted beyond brief detention and questioning for participation in a large peaceful protest. In any event, the IAA found that such treatment would not amount to harm. The IAA was satisfied that the Iranian authorities were not aware of his protesting in Australia and that he does not have an adverse political profile and would not be imputed with anti-regime beliefs because of his past activity or for participating in popular protests in the future (at [36]).
The IAA was not satisfied that, upon his return to Iran, the applicant would be interrogated about his religious views because of his family, or that he would be interrogated or otherwise suffer harm for being a returning asylum seeker and/or because his family are refugees in Australia (at [37], [40]).
The IAA found that the applicant did not have a well-founded fear of persecution now or in the reasonably foreseeable future (at [41]). The applicant therefore did not meet the refugee criterion in s 36(2)(a) of the Act (at [42]).
The IAA further found there was not a real risk that the applicant would suffer significant harm upon being returned to Iran in the reasonably foreseeable future. The applicant therefore did not meet the complementary protection criterion in s 36(2)(aa) (at [43]-[46]).
The IAA concluded that the applicant also did not meet the criteria for a protection visa as a member of the same family unit as someone who holds a protection visa of the same class, namely, his father and mother.
Having regard to the above, the IAA affirmed the delegate’s decision not to grant the applicant a protection visa (at [52]).
APPLICATION TO THIS COURT
On 3 April 2019, the applicant filed an application in this Court seeking review of the IAA’s decision. The applicant was unrepresented at that time and his application contained a single unparticularised ground of review. The applicant filed an affidavit with that judicial review application which annexed a copy of the IAA decision.
On 9 May 2025, the applicant (now represented) filed an amended application for judicial review with grounds as follows:
1.The Second Respondent fell into error by making findings that were irrational, unreasonable, or lacking in intelligible justification.
Particulars
a.The Second Respondent found that the Applicant’s political and religious views will not come to the adverse attention of the Iranian Authorities.
b.This finding was based on an assessment that the Applicant:
i.had not claimed that he would seek to publicise his views or evangelise against Islam,
ii.would not identify himself as other than Shia Muslim when engaging with official forms in Iran,
iii.was not politically active
c.this finding is irrational, illogical, and without intelligible basis given that the Applicant made clear claims directly contradicting each of those assessments and those claims were either accepted by the Second Respondent or were not the subject of any adverse finding.
d.The only identifiable basis for the rejection of the claims is the IAAs suggestion that the Applicant would not act in a way that would come to the adverse attention of the Iranian authorities because the review material indicates that he has engaged respectfully with his friends and family in Australia who have differing views. The Applicant has expressed clear animosity and opposition to the Iranian authorities, and has expressly claimed that he will publicise his views and seek to educate others in Iran, there is logical or rational connection between the evidence regarding how the Applicant engages with his friends and family and the conclusion drawn.
2.The Second Respondent’s decision to not invite the Applicant to attend an interview or provide further information under s473DC of the Act was legally unreasonable.
Particulars
e.The Applicant’s claim regarding his intentions to express his political and religious views if returned to Iran was not considered by the delegate.
f.The delegate’s refusal of the application was not based on any finding that the Applicant was not credible, or that his views were not genuinely held.
g.The Second Respondent’s rejection of the Applicant’s claims with respect to his intentions to express his political and religious views if returned to Iran is a finding that his claims and stated intentions are not credible or genuine.
h.The Second Respondent only had available an audio recording of the Applicant’s interview, and so was at a disadvantage to the delegate as the Second Respondent was unable to visually assess factors relevant to the Applicant’s credibility and genuineness.
i.The Applicant was not on notice that the respect that he has shown his friends and family when discussing his views may be relied upon to reach a conclusion that he will also treat the Iranian Authorities with respect, despite his claims to the contrary, if he was to return, and could not have reasonably foreseen that this would be an area of contention.
j.The IAA was therefore an ‘informational gap’ and the Second Respondent’s decision not to invite the Applicant to attend an interview or to provide further information was legally unreasonable.
The materials before the Court include:
·The amended application for judicial review filed by the applicant on 9 May 2025;
·The affidavit of the applicant sworn and filed on 3 April 2019 (taken as read and in evidence at the hearing on 27 May 2025);
·A Court Book numbering 391 pages (marked as Exhibit 1);
·Written submissions filed on behalf of the applicant on 9 May 2025; and
·Written submissions filed on behalf of the Minister on 22 May 2025.
CONSIDERATION
Ground 1 – Did the IAA make a finding that was irrational, unreasonable or lacking in intelligible justification?
This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 as follows (at [80]-[83]):
[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein).
[81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[82] The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). At [135], the High Court stated:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality , a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...
[83] In Djokovic at [35], it was observed:
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
In this matter it is argued that the IAA’s conclusion that the applicant’s political and religious views will not come to the adverse attention of the Iranian authorities was irrational and based on a finding by the IAA, inter alia, that he had not claimed that he would seek to publicise his views or evangelise against Islam. The applicant argued this was irrational and lacked an intelligible basis where the applicant had made a clear claim contrary to this.
The applicant’s statutory declaration provided to the IAA contains a lengthy statement in respect of the nature of the applicant’s religious views including an explanation by the applicant as to why he would no longer behave discreetly in respect of his religious views. In that statutory declaration the applicant said the following in respect of his time in Iran [CB 294]:
When I first consciously rejected Islam in Iran, I emotionally felt happier and free but at the same time, I was scared and anxious as well because I could not freely share my views and beliefs. However, this lack of freedom made my beliefs stronger day after day.
I was truly fearful to be killed by sharing my views and beliefs in Iran. However, after now having the opportunity to openly discuss my religious views in Australia, I have now come to a point that even if I hear negative reactions, which sometimes has happened in my conversations with friends, I no longer care what other people think about my beliefs because it is my personal view and is very important to me. I have the right to decide my own religion and beliefs.
Later in that statutory declaration, when discussing what the applicant believed would happen if he returned to Iran, the applicant stated [CB 300]:
If I be forced to return to Iran, I will no longer hide my religion views and beliefs, this is my inalienable right and I will fight to keep it. I am strongly against Islamic Religious and government of the Islamic Republic of Iran. I know my human rights and I am no longer fearful as I was in Iran. I identify myself as a “free man” (liberalism) who is able to make personal choices. I am no longer fearful of death and, I am not willing to lie and hide who I am and what do I believe in.
I am aware of the Islamic Republic of Iran’s legal rules and I accept that I am an apostate and I defend my views and beliefs about Islamic religious and I will never ever return back to Islamic religious. I will say that I do not believe in any religion and I only accept the existence of God, my own God. Now I strongly believe that I was fed wrongly about Islam. I have passion to make my country’s people inform and aware of their human rights. If I be forced to return to Iran, I will share my views and beliefs about Islamic religion and how hateful I am that I was a blindfolded Muslim. I will share my feelings and experiences of being a free human in Australia. I will encourage my country people to research about Islam more in detail and do not blindly follow Islam, imposed religion.
The IAA summarised and addressed these claims at [23]-[24] of its decision as follows:
He claims that the religious freedom, human rights and freedom of speech that exist in Australia are the most valuable and significant things he has experienced, they increase his personal value and bring him closer to God. He freely shares his spiritual beliefs in Australia. If he returns to Iran he will no longer hide his religious views. He is no longer fearful of death and he will not lie and hide who he is and what he believes in. If he is questioned about religion, or asked about his religion when filling in forms, he will say that he has no religion, he does not believe in any religion and he only accepts the existence of God. He passionately wants to inform Iranians of their human rights. In Iran he will share his experiences of being free in Australia and say how hateful he feels about having been a blindfolded Muslim. He will participate in protests in Iran.
I have some concerns about these claims. In his Entry interview in 2013 and visa application in 2016, he identified himself as Muslim. He claims that in his Entry Interview he was scared that if he disclosed he was not religious that information would be conveyed to the Iranian authorities, he was confused about the process and he wanted to give information consistent with his identify documents. He also said he identified himself as Muslim because it was habit, because he was Muslim by birth and because identifying himself as Muslim reflected the political and religious situation in Iran rather than his personal beliefs. I am not entirely convinced by his reasons, especially given his stated strong objection to religion and the fact that he only claims to have been fearful and confused with respect to the Entry Interview, not the TPV application in 2016. However, he has provided three letters from friends/ acquaintances who say they have known him for periods ranging from three to five years, who refer to him being resolutely non-religious and do not refer to him becoming non-religious while they have known him. I am prepared to accept that the applicant was not Muslim at the time he lodged his TPV application, and that he identified himself as Muslim because he is Shia Muslim by birth, he was in the habit of identifying as Muslim on forms and because he did not see it as a reflection of his personal beliefs. I am satisfied that the applicant believes in God but is opposed to organised religion and eschews religious practices. I am satisfied that he respects other people’s religious beliefs but refuses to conform to them. I note, in this regard, that he claims that he once shared a video that joked about Islam on Facebook and a few of his Muslim friends were upset so out of respect for their views he deleted it and did not share anything again. While I accept that the applicant has attended church sometimes with his family, I find that he did so out of respect for their beliefs and that he is not Christian. One of the letters that the applicant has provided, from a friend, expresses concern than he will be killed in Iran because his family are Christian. There is no evidence before me that the Iranian authorities are aware that the applicant’s family are Christian, and I am not satisfied that they are aware of that.
Later, the IAA reached the following conclusion at [32]:
I accept that the applicant may share his religious views in Iran in discussions with people as he does with friends in Australia. I am also satisfied that he would not engage in religious practices in Iran. However, he does not claim that he would seek to publicise his views or evangelise against Islam, and I am satisfied that he has no interest in doing that. In drawing this conclusion I am mindful of the respect he says he has for other people’s religious views and the fact that he has not engaged in such conduct thus far.
The Court accepts that the IAA has properly summarised the detailed views of the applicant in his statement. To that extent it cannot be said that the IAA has failed to consider those claims. The conclusion in paragraph [32] is in some respects responsive to the claim made by the applicant. Nevertheless, the Court has concerns that the IAA may not have properly understood two important aspects of the applicant’s claims.
First, the IAA’s statement that the applicant “does not claim that he would seek to publicise his views or evangelise against Islam” is inconsistent with the applicant’s statements that he has a passion to inform his country people of their human rights and that he will encourage his country people to research Islam. It is true that the IAA expressly referred to this in its recitation of the applicant’s claims. However, its reliance on the fact that the applicant did not make a claim that he would publicise his views and had no interest in doing so is clearly at odds with the applicant’s express claims that this was something he had a passion to do. The IAA did not have to accept the applicant’s claims in this regard. However, it had to properly understand the nature and extent of the claim. In the Court’s view, the IAA misunderstood the evidence and that misunderstanding underpinned its ultimate finding in respect of this claim.
The Minister argued that the IAA did not misunderstand the applicant’s claim in this way arguing that the evidence was limited to a claim that he would only share his views with a limited circle of people like he does with his friends in Australia. However, in the Court’s view, the applicant’s evidence cannot rationally be viewed in this way. The applicant’s evidence is clear that he intends to share his views with his “country people” and that this is something he has a passion for. That evidently implies an intention and a conviction to share his views forthrightly and broadly. This claim cannot rationally be understood as being limited to discreet conversation, particularly in light of the applicant’s other strident statements that he would no longer hide his views.
The second difficulty with the IAA’s conclusion in respect of this is its reliance on the fact that the applicant had not previously engaged in this behaviour. In this respect, the IAA does not engage with the applicant’s statement that he previously behaved discreetly because he was fearful of government reprisal, but that having lived freely in Australia he was now adamant that he would no longer hide his religious views and beliefs. Of course, it was not incumbent upon the IAA to have accepted this claim. However, it was required to understand that this was the basis upon which the applicant said he would no longer behave discreetly in Iran. There is no discernible rejection or engagement with that aspect of the claim. The IAA’s reliance on his past discretion does not engage with his expressed reasons for that behaviour and his avowal that he would no longer hide his beliefs.
For these reasons, the Court agrees that the IAA failed to properly engage with the claims as stated and its findings, having regard to the totality of those claims, lack an intelligible basis in the sense identified in the authorities cited above.
Ground one is made out.
Ground 2 – was it unreasonable not to invite the applicant to attend an interview?
It has been held that in some circumstances it may be appropriate for the IAA to use its power in s 473DC to invite an applicant in for an interview. Further, in such circumstances a failure to issue such an invitation may be unreasonable: see ABT17 v Minister for Immigration and Border Protection (ABT17) [2020] HCA 34; (2020) 269 CLR 439. In ABT17, the issue was that it was unreasonable to not invite an applicant to an interview to assess that applicant’s demeanour in circumstances, where how the applicant had presented at the interview had a bearing on the delegate’s assessment of credibility which the IAA departed from. In respect of that, the High Court stated at [12]-[25]:
12. Whatever the form in which any interview with a referred applicant conducted in accordance with the Code of Procedure might come to be recorded or transcribed, the record of the interview is material in the Secretary's possession or control which the Secretary could not but consider relevant to the review. The record can therefore be expected to form part of the review material which the Secretary will be obliged to give to the Authority and which the Authority will be obliged to examine for itself.
13. However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview − his or her demeanour.
14. An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. "Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker." That has "long been recognised" and continues to be appreciated despite awareness on the part of sophisticated decision-makers that "an ounce of intrinsic merit or demerit" measured by reference to objectively established facts and the apparent logic of events "is worth pounds of demeanour".
15. The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however "plausible" the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
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.
17. Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate, the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment. The Authority would be able to discharge that obligation by inviting the applicant to comment orally in the interview itself or subsequently in writing. But occasions when the need to take such a course might arise would be rare, as the circumstances of the present case again illustrate. The Authority was evidently inclined to reject the appellant's account of his experience of persecution because the Authority found the appellant's account vague and lacking in detail and to have been given in a hesitant fashion. An interview by the Authority would have enabled the Authority to get new information from the appellant by raising these issues with him. If the effect of this new information was that it simply failed to allay the tentative concerns that the Authority already entertained about the appellant's credibility, the obligation to invite further comment would not be engaged. The new information would not be the reason, or part of the reason, for affirming the fast track reviewable decision. The reason would remain the unallayed concerns of the Authority in relation to the appellant's account of his personal circumstances.
18. The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA.
19. The answer is to be found in recognising that "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made" such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course".
20. Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification" but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
21. Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
22. The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate". That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23. To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24. The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25. However, the Authority 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. That is what happened in this case.
In this matter, it is clear that the IAA formed the view that the interview before the delegate was sub-optimal. This was because neither the applicant nor his agent had been prepared to discuss his actual claims because he was of the mistaken understanding he was only there to discuss being the member of a family unit. The IAA accepted this as a rationale for considering his further claims as new information. The IAA’s reasons in this respect were as follows:
I have listened to the recording of the applicant’s TPV interview. It is apparent that the applicant’s former agent was surprised when the delegate told him that the applicant would not qualify as a member of his father’s family unit, that the applicant had not expected to put forward his own claims at the interview, and that the delegate was frustrated by the applicant’s lack of preparation. It is also apparent that, at the end of the interview when the applicant’s former representative told the delegate that the applicant no longer considered his former girlfriend’s family to be a threat, this was not translated to the applicant. Previously in that interview, the applicant had said that he did not know whether they would still be a threat.
There is no evidence presented that the complaint to MARA has been investigated or determined. Nevertheless, it is apparent on the information before me that, while the delegate invited the applicant to put forward all his claims at the interview, the applicant was ill-prepared and unaware of some of the representations made on his behalf. The applicant’s explanation of why he did not fully put forward his claims with supporting evidence, the copy of the complaint to MARA and the copy of communications between his family and his former migration agent are put forward solely to explain why the IAA should consider the other information that has been put forward. It does not directly relate to his claims and, as such, is not new information and is not subject to s.473DD of the Act.
…
I am satisfied that the information now before me provides a sufficient basis to assess the applicant’s claims. I do not consider it necessary to obtain further information from the applicant. He has, with the assistance of a different migration agent, submitted an extensive statutory declaration along with supporting evidence. I am satisfied that he has had the opportunity to fully articulate his claims and provide information and evidence that supports his claims, and that he has done so.
The approach taken by the IAA left the applicant tethered solely to the documentary information that he submitted. The Court accepts that there is a more limited form of review in the IAA, but that is premised on the basis that the applicant had a reasonable opportunity to present his claims before the delegate.
Consistent with ABT17, the Court finds that there was an “informational gap” in the material before the IAA. The IAA had already identified that the material before it did not include a record of a meaningful interview with the delegate. The record of an interview with the delegate ordinarily forms an important part of the material provided by the Secretary. In this matter there was the potential for it to loom large in the IAA’s assessment of the conviction and credibility of the applicant’s claim that he would effectively proselytise his religious views and engage in protest activity in Iran.
The Court does not accept that the informational gap identified in ABT17 is necessarily limited to an assessment of demeanour in the context of reaching a conclusion of credibility. What is important is whether “the existence of any informational gap is sufficiently aberrant within the scheme of de novo review”. In particular, in ABT17, the High Court emphasised that where the IAA in that matter was “troubled by a concern” relating to certain aspects of the applicant’s evidence before the delegate “an interview was the obvious means by which the Authority might seek to resolve these matters of concern”. That, of course, is not a principle that can be broadened to invoke an implied requirement that an interview is required in all matters where the interview before the delegate raises concerns. However, in this matter the concerns which were properly noted by the IAA in this matter effectively rendered the recorded interview meaningless and nugatory. The appropriate way to “bridge such an informational gap” in this matter, was to invite the applicant to an interview. As observed in ABT17, such an interview would have met the preconditions of new information.
As observed by the High Court in ABT17, compliance with the implied condition of reasonableness requires that the IAA’s decision not only has an intelligible justification but also that it has reached that decision through an intelligible decision-making process. That requires an “examination of the decision-making pathways reasonably open to the Authority”. Once the IAA had concluded that the interview before the delegate was seriously undermined, it should have considered what process might reasonably remedy that. The obvious pathway was to invite the applicant to an interview. It is true that the IAA gave reasons for declining to invite the applicant to a further interview. However, it was unreasonable to conclude that the existence of a written statement and submissions was an acceptable displacement of the opportunity to provide answers in an interview. That is so in this case because the consideration of integral aspects of the claim, that is his conviction in respect of his intention to protest and espouse his religious beliefs in Iran, was not something that could properly be assessed solely by reference to the sterility of documentation.
In these circumstances, the Court finds that the only reasonable decision-making pathway to overcome the flawed process before the delegate was for the Tribunal to exercise its power to invite the applicant to an interview.
Ground two is therefore made out.
CONCLUSION
The Court was greatly assisted by, and commends, the collegial and practical approaches taken by counsel for both the applicant and the Minister.
In this matter, the applicant has succeeded in establishing jurisdictional error. Accordingly, the decision will be set aside and the matter will be remitted to the Administrative Review Tribunal for reconsideration.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 19 September 2025
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