BMZ20 v Minister for Immigration and Multicultural Affairs (No 2)
[2025] FedCFamC2G 1195
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BMZ20 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 1195
File number(s): MLG 2235 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 30 July 2025 Catchwords: MIGRATION – judicial review - Safe Haven Enterprise (Subclass 790) visa – whether Immigration Assessment Authority (‘Authority’) failed to consider s 473DD(b)(i) before considering s 473DD(a) – whether Authority was required to refer to the requirements of s 473DD(b)(i) in its decision – whether Authority was required to disclose its assessment of s 473DD(b)(i) when considering s 473DD(a) – whether Authority failed to consider relevant information – application dismissed Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD, 473DD(a), 473DD(b)(i), 473EA, 473DC(1), 473GB(2)(a), 65, 61, 414, 415, 473CC, 91WA
Direction 84 – Consideration of Protection Visa Applications
Cases cited: AGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 668
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] 269 CLR 494; [2020] HCA 37
BDE17 v Minister for Immigration & Border Protection [2018] FCCA 2476
BDE17 v Minister for Immigration & Border Protection [2019] FCA 338
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401
BDI17 v Minister for Immigration & Anor (2018) 339 FLR 147 at [70]; [2018] FCA 2162
BFQ19 v Minister for Immigration [2019] FCCA 3599
BVD17 v Minister for Immigration and Border Protection [2019] 268 CLR 29; [2019] HCA 34
BXT17 v Minister for Home Affairs (2021) 283 FCR 248 at [138]; [2021] FCAFC 9
CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1802
FZH18 v Minister for Home Affairs [2020] FCCA 738
GNI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1171
GOT18 v Minister for Immigration & Anor [2020] FCCA 1697
GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 405
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of last submission/s: 22 April 2025 Date of hearing: 22 April 2025 Place: Melbourne Counsel for the Applicants: Mr S Z Stagliorio Solicitor for the Applicants: Legalsy Counsel for the First Respondent: Ms K McInnes Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance ORDERS
MLG 2235 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BMZ20
First Applicant
BNA20
Second Applicant
BNB20 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.Under section 477(2) of the Migration Act 1958 (Cth), the time to file the Originating Application be extended to 19 September 2022.
2.The Application filed on 19 September 2022 as amended on 25 March 2025 be dismissed.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 5 July 2022 (Court Book (‘CB’) 820). In that decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicants’ Safe Haven Enterprise (Subclass 790) visas (‘visas’).
The application to this Court to review the decision of the Authority was filed more than one month out of time. The Minister consented to the Applicants being granted an extension of time in which to file the application for review. The Court determined to extend the period of time for filing of the application for review.
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicants are citizens of Iran. The Applicants arrived in Australia on 1 September 2012 as unauthorised maritime arrivals (CB 456). They jointly applied for the visas on 12 August 2015 (CB 456).
On 16 September 2016, the delegate refused to grant the Applicants the visas (CB 451). The matter was referred to the Authority for review.
On 10 March 2017, the Authority decided to affirm the delegate’s decision (‘First Decision’) (CB 822 [3]). The Applicants applied for judicial review of the First Decision in the Federal Circuit Court of Australia (as it then was). That application was unsuccessful.
The Applicants appealed the decision of the Federal Circuit Court to the Federal Court of Australia. On 14 November 2019, the Federal Court made orders quashing the First Decision and remitted the matter to the Authority for determination according to law (CB 822 [4]).
On 3 March 2020, the Authority again decided to affirm the delegate’s decision (‘Second Decision’) (CB 822 [5]). The Applicants again applied for judicial review of the Second Decision in the Federal Circuit and Family Court of Australia. On 4 April 2022, by consent, this Court quashed the Second Decision and remitted the matter back to the Authority for reconsideration (CB 822 [5]).
On 5 July 2022, the Authority affirmed the decision of the delegate (‘Third Decision’) (CB 821-850).
On 19 September 2022, the Applicants filed an application for judicial review in this Court (‘Application’) seeking to review the Third Decision of the Authority. The Applicants also sought an extension of time in which to file the Application.
On 13 June 2024, the proceeding was listed for a call-over hearing before a Registrar. The Applicants failed to attend the call-over and the Court subsequently dismissed the Application pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth). On 30 September 2024, the Applicants lodged an application in a proceeding seeking that the Application be reinstated. On 2 December 2024, a Registrar reinstated the proceeding.
On 25 March 2025, the Applicants filed a Further Amended Application (‘Amended Application’).
At the hearing before me, the Applicants relied, inter alia, on the Amended Application, their written outline of submissions dated 25 March 2025, their outline of submissions in reply dated 15 April 2025, the Court Book, the affidavit of Ehsan Jahanandish filed 2 December 2024, the authorities contained in their two bundles of authorities, and the Minister’s bundle of authorities. The Minister relied on the Court Book, his written outline of submissions dated 8 April 2025 and certain authorities contained in the various bundles of authorities.
THE AMENDED APPLICATION
There are two grounds of review in the Amended Application.
Ground one
The first ground of review in the Amended Application is:
1.The Immigration Assessment Authority (IAA) made a jurisdictional error by failing to consider s 473DD(b)(i) before considering s 473DD(a) of the Act.
Particulars
a)In determining whether to consider ‘new information’, the IAA had to consider ss 473DD(b)(i) and (ii) before considering s 473DD(a), as consideration of each of the former provisions had to be factored into the subsequent assessment of the latter provision: AUS17 at [11] (Kiefel CJ, Gageler, Keane and Gordon JJ).
b) At [27], the IAA:
a.assessed s 473DD(b)(ii);
b.failed to assess the alternative to s 473DD(b)(ii), namely s 473DD(b)(i);
c.purported to assess s 473DD(a) without having first assessed s 473DD(b)(i).
c)As a result, the IAA failed to perform the procedural duty imposed on it by s 473DD.
d)That failure constituted a jurisdictional error.
At the time the Authority made its decision, sections 473DC and 473DD of the Migration Act 1958 (Cth) (‘Act’) provided as follows:
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.
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.
In AUS17 v Minister for Immigration and Border Protection [2020] 269 CLR 494; [2020] HCA 37 (‘AUS17’), Kiefel CJ, Gageler, Keane and Gordon JJ at [11] stated as follows in respect of section 473DD of the Act):
Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
The relevant issue that arises under this ground of review is whether the Authority dealt with certain new information submitted by the First Applicant in accordance with section 473DD as explained in AUS17 at [11].
In a statutory declaration dated 6 February 2020 in which he set out his claims, the First Applicant raised the following new claim (‘protest claim’) (CB 566):
I recently attended a protest rally at federation square a couple of months ago, which was a peaceful rally expressing concern about the suppression of free speech and violence in Iran. If we are returned to Iran I will certainly continue to do what we can, including participating in any demonstrations and discussing with people around us to promote free speech and stop violence in Iran. I understand that many demonstrations are happening all over Iran at the moment and thousands of people have been arrested and mistreated by the authorities just for expressing their criticism against the government.
At paragraphs [6] to [40] of its reasons, the Authority considered the information it had before it. At paragraph [27] of its reasons, the Authority stated as follows in relation to the protest claim (CB 827):
Turning to the newly raised claims, in his statutory declaration, the applicant claims that he “recently”, a couple of months ago, attended a protest rally at federation square. Apart from stating that it was a peaceful rally expressing concern about the suppression of free speech and violence in Iran, he has not provided any further details of the event such as is when it occurred, information from the organisers or media/social media reporting about the protest nor any evidence to substantiate his claim that he was at the protest. On the information provided, I am not satisfied that the claimed protest or the applicant’s attendance at the protest is credible personal information. While the applicant has claimed that he would continue to participate in such activities if returned to Iran, I note that in providing further information to the IAA, he has not provided any further details of any participation in such events in the subsequent years while in Australia. I am not satisfied of the credibility of this new information or that there are exceptional circumstances to justify this claim.
The Applicants submit that the reasons of the Authority above reveal an error in its approach. The Applicants submit that paragraph [27] above discloses that the Authority failed to consider section 473DD(b)(i) prior to considering section 473DD(a) of the Act, contrary to what is required by AUS17. The Applicants advanced five reasons why the Court should find that the Authority failed to consider section 473DD(b)(i). Those reasons are that paragraph [27] of the reasons is the only place in which the Authority dealt with the protest claim. Further, the Authority does not, in paragraph [27], even refer to the requirements of section 473DD(b)(i) or the provision itself. The reasons in paragraph [27] are silent on and do not disclose how any assessment of the matters in section 473DD(b)(i) are factored into the subsequent assessment purportedly conducted under section 473DD(a). Furthermore, the Applicants submitted that in other parts of its reasons when considering whether to admit new information, the Authority referred to section 473DD(b)(i), and the lack of consideration of that provision in paragraph [27] of the reasons is said to show a failure by the Authority to consider section 473DD(b)(i) when dealing with the protest claim.
The submissions of the Applicants raise a question about the proper construction of paragraph [27] of the reasons of the Authority. In order to consider the approach to construction, it is first necessary, given the submissions of the parties, to deal with the obligation or otherwise on the Authority to give reasons.
The Authority is required to give a written statement of its decision that sets out the reasons for its decision (section 473EA) being the substantive decision before it. In written submissions, the Minister pointed the Court to BVD17 v Minister for Immigration and Border Protection [2019] 268 CLR 29; [2019] HCA 34 (‘BVD17’). In BVD17, a majority of the High Court noted at paragraph [16] that the Authority “is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred upon it by s 473DC(1)…”. The Applicants quite correctly pointed out that BVD17 predates the decision in AUS17 and submitted that it is implicit in what the High Court said in AUS17 that the Authority is required to provide reasons when deciding whether to admit new information. The Applicants also pointed out that BVD17 is not binding and concerned a different issue, being the giving of a notification under section 473GB(2)(a). The Applicants contend that if there is a tension to be resolved between BVD17 and AUS17 it should be resolved in favour of AUS17.
Two things may be said about the Applicants submission above. First, it does not adequately take account of the judgment of Kenny J in BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 (‘BDF17’). BDF17 was decided after AUS17. In BDF17 at paragraph [68], Kenny J states, relying on BVD17, that the Authority is not required to give reasons for the exercise or non-exercise of a procedural power. Second, it is not at all clear that AUS17 can be said to implicitly overrule BVD17. AUS17 was concerned about what the decision maker was required to assess and how the assessment was to be conducted. The issue in BVD17, and the issue presently under consideration, is whether there is a requirement to give reasons for the exercise of the procedural power under section 473DD.
The Federal Court has grappled with this apparent tension. In CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1802 (‘CLI19’), an argument was raised that there was no obligation on the Authority to give reasons for a decision under section 473DD. Rares J noted that the case the Minister relied on predated AUS17 and referred to the decision of Kenny J in BDF17. Then at paragraph [28], Rares J stated that:
The High Court has not expressly decided that, despite the apparent importance s 473DD has in imposing a procedural duty on the Authority to determine whether or not to consider new information using the process identified in AUS17 269 CLR 494, it does not have to give reasons for such a decision. Whether that is the necessary result of its reasons in BVD17 268 CLR 29 at 39 [16], as AAL19 277 FCR 393 suggests, it need not be decided here. That is because the Authority did give reasons for its decision under s 473DD. The question is whether those reasons, fairly read, reveal jurisdictional error in its approach, or allow the Court to infer that something went wrong in its evaluation so as to warrant granting relief: Avon Downs 78 CLR at 360.
I propose to approach this matter in a manner consistent with the approach taken by Rares J in CLI19. This is not a case where the Authority has not produced reasons for its decision under section 473DD of the Act. Ground one of the Amended Application raises no such complaint. Rather, the issue before me raised by Ground one of the Amended Application, is whether the Authority failed to consider or apply the requirements of section 473DD, as explained in AUS17. That question is to be answered by reviewing the reasons the Authority has given. The Court is entitled to draw inferences from those reasons, however, in circumstances where the Authority was not required to articulate its reasoning, a Court conducting judicial review must be astute not to infer error from what a decision maker has not said: see for example, AGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 668. That is a matter to be borne in mind when construing the reasons of the Authority in relation to its decision to admit new information, and in the circumstances of this case, the exercise of its powers under section 473DD of the Act.
Before turning to the reasons themselves, it is important to remember the principle that the reasons of a decision maker must be read fairly and as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Wu Shan Liang).
In the present matter, it is instructive to note two things. First, the reasons of the Authority, read as a whole, demonstrate that the Authority was plainly aware that it was required to assess the new information against section 473DD(b)(i). So much is clear from the reasons of the Authority at paragraphs [16], [18], and [19]–[20]. The Authority was not ignorant of the requirements of section 473DD. In stating that, awareness by the Authority of the test it is required to apply under section 473DD does not mean that it may not have failed to apply the requisite test to its assessment of the protest claim.
Second, and in my view, more significant, is what the Authority did say in paragraph [27] of the reasons. The Authority stated expressly, in respect of the protest claim, that ‘the First Applicant claims that he “recently”, a couple of months ago, attended a protest rally at federation square’. This comment is made in circumstances where:
(a)the visa decision the Authority was considering was a decision made on 16 September 2016 (CB 451-476);
(b)the matter was remitted to the Authority for reconsideration on 4 April 2022 (CB 801);
(c)the Authority informed the Applicants on 12 May 2022 that it was to reconsider the Applicants’ case (CB 801); and
(d)the Authority made its decision on 5 July 2022 (CB 820).
The Authority, when it stated that the First Applicant had ‘recently, a couple of months ago’ attended a protest, was plainly aware that the protest claim post-dated the decision of the delegate. The better view of the reasons of the Authority is that the Authority was plainly aware that the protest claim was new information that was not, and could not have, been provided to the Minister when the Minister made the decision under section 65 of the Act. Indeed, the better view of paragraph [27] of the reasons of the Authority is that the Authority was plainly satisfied that the requirements of section 473DD(b)(i) were met and it was aware of that in reaching its conclusion as to whether to admit the new information. The Authority is not required to refer to any specific provision in reaching its conclusions: BXT17 v Minister for Home Affairs (2021) 283 FCR 248 at [138]; [2021] FCAFC 9. Moreover, it is unnecessary for the Authority to engage in ‘any particular formulaic consideration of section 473DD(b)’ (APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] (Markovic J) ((APH17’)), which is what the Applicants’ submissions under this ground, taken as a whole, amount to. The reasons of the Authority make clear that as a matter of substance, it considered and applied the requirements in section 473DD(b).
As to the Applicant’s submission that the Authority expressly referred to section 473DD(b)(i) in relation to other pieces of new information and this fact corroborates that it failed to consider such provision in relation to the protest claim, there is force in the Minister’s submission that the reasons of the Authority are not to be read as if they are legislation or a decision of a Court. The Applicants’ submissions seek to read the reasons with ‘an eye keenly attuned to error’: Wu Shan Liang at 271-272.
Finally, it is necessary to deal with the Applicants’ submission that the reasons of the Authority do not disclose any assessment of the matters in section 473DD(b)(i) factored into its overall determination of whether exceptional circumstances existed under section 473DD(a). The answer to this issue is to be found within the terms of paragraph [27] of the reasons itself. As I have noted above, the better view of the reasons of the Authority is that it plainly was satisfied that the requirements of section 473DD(b)(i) were met. It clearly was not satisfied that the protest claim met the requirements of section 473DD(b)(ii). It then concluded by stating in the last sentence of paragraph [27] that the Authority is ‘not satisfied…that there are exceptional circumstances to justify this claim’. That conclusion of the Authority, whilst cursory, is unexceptional when one considers that the Authority is not required to set out its reasons (BVD17 at [16] and BDF17 at [68]). Moreover, and more importantly, that last sentence is the ultimate conclusion of a paragraph that considers both elements of section 473DD(b). Therefore, in my view, the reasons of the Authority are not silent when it comes to assessing how the criteria in sections 473DD(b)(i) and (ii) factor into the assessment to be undertaken under section 473DD(a).
For all of the above reasons, I am satisfied that the Authority, when considering whether to admit the new information constituted by the protest claim, did not contravene section 473DD, nor fall foul of the ruling by the High Court as to how that provision is to be applied in AUS17. The better view of paragraph [27] of the Authority’s reasons is that it considered both limbs of section 473DD(b) before assessing whether exceptional circumstances existed under section 473DD(a). No error has been demonstrated. Ground one of the grounds of review should be dismissed.
Ground two
The second ground of review in the Application is:
2. The IAA made one or more jurisdictional errors concerning the claim that the Third Applicant had become Westernised, dressing in Western clothes.
Particulars
a)At CB 828 [29], the IAA said: “… I note that the [Third Applicant’s] photo attached to the SHEV application shows that she was not wearing the hijab…”, which is a reference to CB 245 and/or 391.
b)In a letter dated 29 April 2022 addressed to the IAA (CB 608-612), the First Applicant claimed at [2(f)] that the Third Applicant has “lived in Australia for ten years now”, has “become westernised” and “dress[es] in western clothes”.
c)At CB 829 [31], the IAA:
i.turned to the question of whether to consider “new information”, namely the claim of fear of harm on the basis that the Third Applicant had become Westernised and based on her “upbringing in a western country and information about the manner [she] dress[es]”;
ii.found pursuant to s 473DD(b)(ii) that the new information was “credible personal information”;
iii.found pursuant to s 473DD(a) that exceptional circumstances justified consideration of the new information.
d)At the time of the IAA’s decision, the Minister had issued Direction 84, then in force.
e)Direction 84 included: “Where the Department of Foreign Affairs and Trade [(DFAT)] has prepared country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision...”.
f)At the time of the IAA’s decision, cl 3.127 of the DFAT report then in force said (CB 731, emphasis added): “… Article 638 of the Penal Code stipulates that women who appear in public without a proper hijab (the generic term for the proper Islamic dress for women) be imprisoned from 10 days to two months or pay a fine of between 50,000 and 500,000 rials (approximately AUD0.50-5 at current market rates). Women appearing in public without a proper hijab can also be punished with 74 lashes…”.
g)The purported consideration of the claim that the Third Applicant had become Westernised and dressed in Western clothes by the time of its decision miscarried in one or more ways:
i.The IAA failed to consider the consequences to the Third Applicant, as described in cl 3.127 of the relevant DFAT report, if she did not wear the hijab in Iran.
ii.At CB 845 [85], the IAA said that the Third Applicant never “came to the attention of the authorities for reasons of noncompliance with Iran’s dress code”. If [85] reveals a consideration of those consequences, the IAA constructively failed to exercise its jurisdiction by asking itself whether she came to their attention in the past (before the claimed Westernisation), when it should have asked itself whether she would come to their attention in the future (from the claimed Westernisation onwards): see S395 at [43] (McHugh and Kirby JJ).
iii.If the IAA at [85] found that the Third Applicant would not come to the authorities’ attention in the future, it engaged in the fallacy of not asking itself why she would not come to their attention, namely whether she would wear a hijab precisely because of the attendant threat of harm: again, see S395 at [43] (McHugh and Kirby JJ).
iv.Having accepted at CB 829 [31] as “credible personal information” the claim that the Third Applicant had become Westernised and feared harm based on her “upbringing in a western country and information about the manner [she] dress[es]”, it was illogical for the IAA to find at [32] that it was “not satisfied that [her] claim about … non-compliance with the hijab is credible personal information”.
In the Statutory Declaration dated 6 February 2020, the Second Applicant raised the following matters in respect of the Third Applicant (CB 576):
19.I particularly fear for [Third Applicant], because she does not wear hijab and she will refuse to wear one even if she is returned to Iran. In Iran, people, particularly women, who do not observe dress code would be arrested and detained. As a Muslim, I personally do not like the way she dresses, however, she has not listened to me. I am certain and fearful that, because of the way she dresses, she will be stopped at the airport upon return. [Third Applicant] finds that the Iranian dress code to be ridiculous and would refuse to observe it. I fear that she would be frequently stopped and arrested by the Basij or the police, and during the arrest, she will be mistreated and physically harmed for not being Islamic.
In a letter to the Authority from the Applicants dated 7 February 2020, the following was submitted (CB 579):
Likewise, [the First and Second Applicant] fear for their children… that, if they are returned to Iran, they will suffer serious harm in the form of arbitrary arrest, detention, physical harassment, threats of harm, assault, torture, psychological harm, substantial discrimination amounting to persecution, from the Iranian authorities, or other Iranian nationals on account of the following Refugees Convention grounds, taken separately or cumulatively:
•Their membership of the particular social groups ‘Returnees from a Western country’, ‘Failed returned asylum seekers from a Western country’.
In a letter to the Authority dated 29 April 2022, the First Applicant stated as follows (CB 610):
My children have lived in Australia for ten years now. As they state in their statements (Attachments D and E), they have become westernised. They dress in western clothes, wear western jewelry, and listen to western music. They have undertaken study in Australia and would be unable to find suitable jobs in Iran. Our status as failed asylum seekers, and exposure and adoption of western customs, in conjunction with my conversion to Christianity, would put us at risk of significant harm.
Attachment D (referred to in the quoted paragraph above) was the statement of the Third Applicant. In that document, the Third Applicant did not make any claim that she would refuse to wear the hijab in Iran, or that she feared harm by reason of any refusal to wear the hijab.
The Authority was required to consider whether to admit the claims above as new information. At paragraph [29], the Authority referred to the SHEV interview and stated that ‘at no point did the applicant or his wife claimed that their children would face any consequences as a result of their non-religious upbringing or not observing Islamic norms, such as dress code, or be viewed as westernised’. The Authority made that comment noting that the Third Applicant’s identity photo attached to the SHEV application showed that she was not wearing the hijab (CB 245, 391).
Having referenced the claims that were made at the SHEV interview, the Authority turned to describe the claims that were now advanced. It stated at paragraph [29]:
In 2020, the applicant’s wife claims that their children will be harmed in Iran for reasons of their westernised behaviour, non-adherence to Islam and as young Iranians who do not conform to Islamic norms. It is claimed that the manner they dress, and their hairstyles will be viewed as un-Islamic. Further, the daughter will suffer harm as a young Iranian woman who does not wear the hijab and that the son is talking about getting a tattoo, wears earnings and behaves like a westerner. At the time, the IAA was not provided with any further details or statements from the daughter, who was 23 years old.
At paragraph [30], the Authority then referred to the specific documents and submissions received in respect of the new information. It noted, inter alia, that the daughter had provided a statement dated 13 April 2022 which referred to her fear of discrimination and harassment based on her father’s religion, and that she would not be able to continue her studies. The Authority then stated, accurately, that ‘[t]he daughter has not provided any details of her westernised behaviour, that she will be viewed as un-Islamic or that she would not adhere to the Islamic dress code’.
The Authority then dealt with the claims at paragraphs [31]-[32] as follows:
[31]The applicants were legally represented and that their representative particularised what they feared if returned to Iran. At the time of the delegate’s decision in September 2016, the applicant’s daughter was an adult and his children had been residing in Australia for three years. It is not apparent why this information or fear of harm based on the children having resided in Australia and becoming “westernised” was not articulated to the delegate. I accept that some years have passed since the delegate’s decision and the fear based on the children’s upbringing in a western country and information about the manner they dress and the son forgetting the Farsi language, wearing earrings and listening to rap music may have surfaced after the delegate’s decision and could not have been provided to the delegate. On its face, I am satisfied that the information is credible personal that may have affected the consideration of the applicants claims and that that there are exceptional circumstances to justify considering these claims.
[32]The applicant’s wife’s claims that her daughter will not adhere to Islamic dress code is not supported by the statements provided to the IAA. Given that the applicant’s daughter was an adult at the time of the delegate’s decision, I am not satisfied that this claim could not have been made before the delegate and the applicant’s daughter or wife has not provided any further details to show that the daughter’s claimed non-compliance with Iran’s dress code if returned to Iran arose after the delegate’s decision. The applicant’s daughter’s claim that she will not be able to continue with her studies is not supported by any evidence. I am not satisfied that the daughter’s claim about her education or the applicant’s wife claims regarding her daughter’s non-compliance with the hijab is credible personal information. The applicant’s wife’s claim made in 2020 that her son may get tattoos was speculative at the time and is not supported by the son’s 2022 statement provided to the IAA. I am not satisfied that this is credible personal information. Given these matters, I am not satisfied that there are exceptional circumstances to justify considering these claims raised by the applicant’s wife.
In respect of these matters, the Applicants submit that the consideration by the Authority of the claim that the Third Applicant had become westernised miscarried in multiple ways.
First, the Authority failed to consider the consequences of the Third Applicant not wearing the hijab. The Applicants submit that ‘Direction 84 – Consideration of Protection Visa Applications’ made by the Minister on 24 June 2019 (‘Direction 84’) applied to the Applicants’ case, and that clause 3 of Direction 84 required the Authority to take account of any country information or assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’). The Applicants submit that DFAT had prepared a ‘DFAT Country Information Report Iran’ dated 14 April 2020 (‘DFAT Report’), and that clause 3.127 of the DFAT Report relevantly provided that ‘women who appear in public without a proper hijab (the generic term or proper Islamic dress for women) be imprisoned from 10 days to two months or pay a fine of between 50,000 and 500,000 rials…[w]omen appearing in public without a proper hijab can also be punished with 74 lashes…[g]enerally women deemed to have “bad hijab” (where the headscarf is worn loosely and some hair is showing) are ordered by plurality police to adjust the headscarves and are warned against future indiscretions’ (CB 731). The Applicants submit the Authority did not consider the material above contained in the DFAT Report and that a material non-compliance with a direction (such as Direction 84) constitutes a jurisdictional error.
Second, the Applicants are critical of paragraph [85] of the reasons of the Authority. There, the Authority stated, inter alia, ‘there is no indication that she [Third Applicant] was unaware of or came to the attention of the authorities for reasons of non-compliance with Iran’s dress code’. The Applicants submit the Authority effectively applied a ‘backward looking’ analysis. Rather, it is contended that the Authority needed to ask itself whether the Third Applicant would come to the attention of the authorities after she became westernised.
Third, the Applicants submit that even if paragraph [85] of the reasons of the Authority reveal that it considered the position of the Third Applicant and whether she would come to the attention of the Iranian authorities in the future, the Authority failed to ask itself why the Third Applicant would not come to the attention of the authorities, namely whether she would wear a hijab precisely because of the threat of harm.
In order to evaluate the contentions above, it is necessary to consider the manner in which the Authority approached the claims that were before it and subsequently dealt with claims that were before it.
The extracts at paragraphs [35]–[37] above reveal the following:
(a)a claim by the Second Applicant on 6 February 2020 that the Third Applicant does not wear the hijab and will refuse to wear one even if she is returned to Iran;
(b)a claim by the First and Second Applicants in a submission dated 7 February 2020 that their children would suffer serious harm from their membership of a social group being ‘Returnees from a Western country’ and ‘Failed returned asylum seekers from a Western Country’; and
(c)a claim by the First Applicant on 29 April 2022 that his children had become ‘westernised’ and that they ‘wear western clothes, wear western jewellery and listen to western music’.
There were two claims before the Authority. The claim that the Third Applicant would not wear the hijab was clearly one of these separate claims. It was a claim made only by the Second Applicant. It was not made by any other person. It was not supported by the Third Applicant in the statement she submitted to the Authority.
There was clearly another, separate, claim that was advanced by the First and Second Applicants. That was a claim that their children had become westernised. It is important to note the following about this claim. First, the claim was one of westernisation – the children had become westernised because they had been in Australia for a lengthy period. Second, there were many aspects to the claim that the children had become westernised. One aspect of the claim of westernisation was that the children ‘dress in western clothes’, but there were other significant aspects, including that ‘they wear western jewellery’, ‘listen to western music’, had undertaken study in Australia, had adopted western customs and, in respect of the Fourth Applicant, was considering getting a tattoo. Third, that aspect of the claim of westernisation that the children ‘dress in western clothes’ was unparticularised. No further details were provided by the Third and Fourth Applicants since their statements dated 13 April 2022.
A review of the reasons of the Authority discloses, unsurprisingly given the context above, that it treated the claim that the Third Applicant would not wear the hijab as separate from any claim that the children had become westernised. This can be seen from the following:
(a)in paragraph [29] of the reasons, when discussing the claims, the Authority expressly identifies as a separate claim from the claims the children have become westernised, the claim that the Third Applicant does not wear the hijab. So much can be seen from its use of the words ‘Further, the daughter will suffer harm…’ (emphasis added);
(b)in paragraph [31] of the reasons, the Authority is dealing only with the claim that the children had become westernised. The Authority notes that it is not apparent why the claims the children had become ‘westernised’ had not been articulated earlier. The Authority then deals with that claim, finding that exceptional circumstances existed to justify consideration of the claim that the children had become westernised; and
(c)in paragraph [32] of the reasons, the Authority deals with the specific claim that the daughter will not wear the hijab. That the Authority is dealing with this claim separately can be seen not only from the plain words of paragraph, but also by its reference to the Second Applicant making such claim (the claim that the Third Applicant would not wear the hijab was only made by the Second Applicant). Ultimately, the Authority decided there were not exceptional circumstances to justify considering the claim that the daughter would not wear the hijab.
The position then, is that the claims the children had become westernised were before the Authority and the Authority was required to consider these claims. The specific claim that the Third Applicant would not wear the hijab was not before the Authority, the Authority having determined there were not exceptional circumstances to justify the consideration of that claim. The Authority was therefore not required to consider the specific claim that the Third Applicant would not wear the hijab.
The Applicants’ submissions under this ground at paragraph [44] above, are all premised on the basis that the claim that the Third Applicant would not wear a hijab was before the Authority. For the reasons given, that claim was not before the Authority. In that circumstance, the Applicants’ submissions at paragraph [44] above cannot be accepted as revealing jurisdictional error. There is no jurisdictional error because the claim on which the Applicants base their submissions at paragraph [44] above was never before the Authority. What was, or what remained before the Authority, was a claim that the children had become westernised.
The Applicants’ submission that there has been non-compliance with Direction 84 manifested by a failure the Authority to consider the DFAT report in the context of the Third Applicant refusing to wear a hijab must fail. It must fail because there was not a claim before the Authority that the Third Applicant would refuse to wear the hijab. To the extent that the Applicants’ submission may be taken to extend to the claim of westernisation, the submission also fails for the following reasons.
Part 1, item 4 of Direction 84 relevantly provides that the purposes of Direction 84 is to ‘guide decision makers performing functions or exercising powers under section 65, 414 or 415 of the Act when considering an application for the grant of a Protection visa and when reviewing a decision to grant Protection visa’. The Authority, in performing its functions, is not exercising a power under any of sections 65, 414 or 415 of the Act. The decision-making power of the Authority arose under section 473CC. A number of judges of this Court have held this to be the case when considering PAMs: see for example BDE17 v Minister for Immigration & Border Protection [2018] FCCA 2476 at [37]-[38] (Judge Smith) (upheld on appeal, see BDE17 v Minister for Immigration & Border Protection [2019] FCA 338 at [25]); FZH18 v Minister for Home Affairs [2020] FCCA 738 at [65] (Judge Kendall); BFQ19 v Minister for Immigration [2019] FCCA 3599 at [34] (Judge Driver); BDI17 v Minister for Immigration & Anor (2018) 339 FLR 147 at [70]; [2018] FCA 2162 (Judge Driver); GOT18 v Minister for Immigration & Anor [2020] FCCA 1697 at [55] (Judge Driver) (upheld on appeal, see GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 405). See also the obiter dicta comments of Markovic J in APH17 at [46].
The Applicant sought to counter these authorities by referring to the decision of Judge D Humphreys in GNI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1171 (‘GNI18’). GNI18, however, does not stand for the proposition that the Authority is making a decision under section 65 of the Act. The issue in GNI18 concerned whether the Authority could make findings under section 91WA of the Act. In the course of advancing those submissions, submissions were made about whether the Authority could exercise power under section 65. Ultimately that issue (whether the Authority was exercising power under section 65 of the Act) did not have to be determined because the Applicant in that case did not persuade the court in respect of his submissions concerning section 91WA of the Act and the explanation for producing a bogus document. Accordingly, the Applicant’s submissions about GNI18 and the requirement of the Authority to comply with Direction 84 cannot be accepted.
The Applicant’s submissions that the Authority engaged in a ‘backward looking’ exercise when it needed to ask itself whether the Third Applicant would come to the attention of the authorities because of non-compliance with Iran’s dress code, or failure to wear the hijab, must also fail. Insofar as the submission is made about the claim that the Third Applicant would not wear a hijab, the submission fails because there was not a claim before the Authority that the Third Applicant would refuse to wear the hijab. Insofar as the submission is addressed to the claim of westernisation, the Authority dealt with the claim, did not engage in a ‘backward looking’ exercise, and did not commit jurisdictional error.
As I have noted above, one aspect of the claim of westernisation was the claim that the Third Applicant dressed in western clothes. At [83], the Authority noted the claim advanced that the Applicants’ children are ‘used to western culture’. At paragraph [84] of its reasons, the Authority considered the DFAT Report in relation to required dress codes for men and women. The Authority at [84] relevantly stated that:
DFAT reports that since shortly after the 1979 revolution, men and women of all religions have been required to adhere in public to conservative dress codes. Women are required to cover their whole bodies with the exception of their face and hands and feet while in public. It is reported that dress code for women is not uniformly enforced or adhered to. DFAT observed numerous women wearing hijabs loosely in Tehran, with parts of their hair showing and women are more likely to wear hijabs loosely in affluent areas of Tehran. Dress codes are enforced primarily by the mortality police and Basij. Penalties for violation of dress code are rarely enforced, with women deemed to have ‘bad hijab’ are ordered by morality police to adjust their headscarves and warned against future indiscretions. In some cases, they may be escorted to the police station and asked to sign a declaration undertaking not to wear ‘bad hijab’ and released without sanctions.
Plainly in the above paragraph, the Authority has extracted and assessed Country Information about the enforcement of dress codes, particularly in Tehran. Paragraph [84] of the reasons of the Authority clearly reveals consideration by the Authority of paragraphs 3.127 and 3.128 of the DFAT Report.
At paragraph [85] of the reasons, the Authority then noted that when the Third Applicant arrived in Australia, there was no indication that she was unaware of or came to the attention of authorities for reasons of non-compliance with Iran’s dress code.
Then, at paragraph [86] of its reasons, the Authority concludes as follows:
Considering the country information cited above and the fact that the applicants resided in Tehran, where they are highly likely to return, I do not accept that the applicant’s children are at a real risk of facing serious harm for the reasons claimed.
Read in context, the reasons of the Authority disclose that while it referred at [85] to whether the Third Applicant had come to the attention of the authorities in the past, the Authority nevertheless considered and assessed the DFAT Report in determining that the Third and Fourth Applicants did not face a real risk of serious harm for the reasons claimed, including their nonadherence to strict Islamic dress code. The Authority based its reasons upon the DFAT Report and paragraph [86] of the reasons makes that expressly clear. It is also clear that one reason the Authority found that the Third Applicant would not come to serious harm was because it was likely the Third Applicant would return to Tehran where it was observed that women were wearing their hijabs loosely.
The Applicants complain that the above matters are not an answer to their submission, because DFAT was dealing with women loosely wearing the hijab, not the claim that the Third Applicant was not wearing the hijab. There are at least three answers to this submission. First, there was no claim before the Authority that the Third Applicant refused to wear the hijab. The Authority was only dealing with the claim of westernisation. Second, the ‘dress’ aspect that fell within the broader umbrella of the claim of westernisation was not particularised by the Applicants. The Authority was left, as best it could, to assess the claim that the Third and Fourth Applicants ‘dress in western clothes’ or that the Third and Fourth Applicants would not adhere to Islamic dress code. Third, it is entirely possible for a person to wear the hijab but still face accusations of failing to adhere to the Islamic dress code. Paragraphs 3.127 and 3.128 of the DFAT Report bear that out. Likewise, it is entirely possible for a person to wear a hijab but face accusations that she is wearing western clothes. An example might be if a person wore a football scarf or jersey over the hijab. The Authority did not misinterpret the DFAT Report nor misapply it.
The Authority was faced with a generic claim of westernisation, one aspect of which was an unparticularised claim that the Third Applicant dresses in western clothes. The Authority not only dealt with the claim overarching claim of westernisation. It also dealt with an unparticularised aspect of that claim relating to dress, and it did so by looking at the Country information available to it and applying that to the circumstances that were before it.
The Applicants’ submissions that even if the Authority considered the position of the Third Applicant in the future, the Authority failed to ask itself why the Third Applicant would not come to the attention of the authorities, namely whether she would wear a hijab precisely because of the threat of harm, are also not made good. The Authority made no finding that the Third Applicant would wear a hijab because of the threat of harm, or that she faced harm because she wore a hijab. There was no claim before the Authority that the Third Applicant would wear a hijab. The relevant claim before the Authority was the claim that the Third and Fourth Applicants had become westernised. The Authority found, for the reasons articulated above, that the Third Applicant would not come to the attention of the authorities because of her westernisation, particularly in circumstances where she was returning to Tehran.
The Applicants advanced one other submission dealing with illogicality under this ground. It was submitted that in paragraph [32] of the reasons of the Authority (set out earlier), the Authority stated it was not satisfied that the Applicants’ claim (that the Third Applicant would not wear the hijab) was credible personal information. However, in paragraph [31] of the reasons, the Authority accepted as ‘credible personal information’ that the Third Applicant had become westernised and feared harm, inter alia, because of her dress. These two conclusions are said to be illogical.
In my view, no illogicality arises. As noted earlier, the Tribunal dealt separately with the claim that the Third and Fourth Applicants had been westernised from the claim that the Third Applicant would not wear a hijab. The claim about not wearing the hijab was specific. The claim about westernisation was an overarching claim that had various aspects to it. It was open to the Authority to find that the Third and Fourth Applicants’ claim to have been westernised (including for reasons of dress, behaviour, and hairstyles (see [29])) was credible personal information, but at the same time not accept, for the purposes of section 473DD, the separately identifiable claim that the Third Applicant would refuse to wear hijab if returned to Iran.
Given the above, ground two of the grounds of review is dismissed.
CONCLUSION
Regrettably for the Applicants, they have been unsuccessful. The only appropriate order is that the application before the Court as amended be dismissed.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 30 July 2025
SCHEDULE OF PARTIES
MLG 2235 of 2022 Applicants
Fourth Applicant:
BNC20
0
15
2