BRO20 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1323

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BRO20 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1323

File number(s):

SYG 946 of 2020

Judgment of:

JUDGE LAING

Date of judgment:

5 December 2024

Catchwords:

MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA failed to apply correctly s 473DD of the Migration Act 1958 (Cth) in the manner contended by the applicant – whether the IAA failed to consider a claim or an integer of a claim – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36 & 473DD

Cases cited:

Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

CLS15 v Federal Circuit Court of Australia [2017] FCA 577; (2017) 72 AAR 502

DEL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2792

EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180; (2018) 265 FCR 527

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Division:

General

Number of paragraphs:

49

Date of hearing:

8 October 2024

Place:

Sydney

Counsel for the Applicant: (Direct Access)

Mr S Kikkert

Counsel for the First Respondent:

Mr J Kay Hoyle SC

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 946 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BRO20

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	5 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application 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 LAING:

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Iran, who applied for a protection visa on 1 May 2017.

3. On 25 February 2019, the Delegate refused the application. The decision was referred to the IAA for review.

4. On 1 April 2020, the IAA affirmed the Delegate’s decision.

   THE IAA’S DECISION

5. The IAA observed that it had received submissions, a statutory declaration and supporting documentation, which included some new information. The IAA did not accept that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in relation to the following:

   (1)an extract purportedly from a 2017 US Department of State Human Rights report (at [6]);

   (2)a claim by the applicant in an updated statement that he had started attending an identified Church (Church) in November 2019 and converted to Christianity in the same month (at [7]);

   (3)reference to an assertion purportedly made by an identified Doctor that trauma resets personality and changes behaviour (at [7]);

   (4)a claim by the applicant that he believed the Basij wanted to recruit him because his parents were well known in the community and the Basij wanted to leverage this to expand their power and network in different local areas (at [9]); and

   (5)a screenshot of the applicant’s volunteering profile on the internet, statement that he had been shortlisted for an award and statement that he would not have been involved in these types of activities but for his Christian conversion (at [10]).

6. The IAA accepted that s 473DD of the Act was met in relation to copies of letters from members of the Church that supported the applicant’s claim of being a genuine Christian convert (at [8]).

7. The IAA accepted that:

   (1)the applicant was from Tehran where he has family, and that if he were to return, he would likely return there (at [14]);

   (2)one of the applicant’s roles during military service was as claimed (at [14]);

   (3)the applicant may be identifiable as an asylum seeker who has lived in a western country for a number of years (at [14]);

   (4)the applicant may have been harassed by the Basij on one occasion due to his clothing (at [18]);

   (5)friends and neighbours might have asked the applicant if he were interested in joining the Basij (at [18]);

   (6)the applicant was baptised 12 days after his first attendance at the Church in Australia (at [23]);

   (7)the applicant attended bible studies classes and Church services regularly since November 2019 (at [23]); and

   (8)the applicant’s brother passed away in the manner indicated on his death certificate (at [26]).

8. The IAA did not accept that:

   (1)the applicant had to cease particular work or leave any jobs due to harassment (at [14] and [18]);

   (2)the applicant was pressured and harassed to join the Basij or that he was taken by the Basij to their base and forced to sign an undertaking to join them (at [18]);

   (3)the applicant had left Iran illegally, that he was wanted by the Basij or anyone else when he left, or that his family ‘faced problems’ after his departure (at [19]);

   (4)the applicant faced a real chance of harm on account of his past experiences in Iran or his clothing, hairstyle or behaviour (at [21]);

   (5)the applicant was a genuine and committed Christian convert (at [24]);

   (6)the applicant’s brother was harassed, mistreated and killed by the authorities because he was critical of the regime or had an adverse profile (at [27]);

   (7)the applicant’s family was monitored or harassed in connection with his brother (at [27]); or

   (8)the applicant did not return to Iran after his brother’s death because of a fear for his safety (at [27]).

9. The IAA found that the applicant had engaged in Christian activities in Australia solely for the purposes of strengthening his claims for protection. The Tribunal therefore disregarded this conduct for the purposes of s 36(2)(a) of the Act (at [24]). In relation to complementary protection, the IAA did not accept that the applicant would continue to engage in such behaviour in Iran. Having regard to country information and the applicant’s profile, the IAA was not satisfied that there was a real risk the applicant would suffer harm on account of his Christian activities and Facebook posts while in Australia, his views on Islam, or for being a non-practising Muslim (at [34]).

10. The IAA considered that if the applicant were to return to Iran, it would be on a voluntary basis. Based upon country information and the applicant’s profile, the IAA was not satisfied that there was a real chance he would suffer harm on account of being a returning asylum seeker from a Western country where he had lived for a number of years (at [28]).

11. The IAA concluded that the applicant was unable to meet the criteria under ss 36(2)(a) or 36(2)(aa) of the Act for the grant of the visa. Accordingly, the IAA affirmed the Delegate’s decision (at [30]-[36]).

    PROCEEDINGS BEFORE THIS COURT

12. The applicant commenced the current proceedings through an application filed on 21 April 2020. The applicant ultimately relied upon an amended application filed on 9 September 2020, containing the following grounds:

    1.The second respondent (Authority) materially failed in the discharge of its exact function according to law.

    Particulars

    The Authority failed to form a state of satisfaction under section 473DD of the Act in respect of whether it should have considered “new information” contained in the applicant’s statutory declaration dated 24 March 2020.

    2.Further or in the alternative, the Authority failed to consider a claim or integer of a claim made by the applicant.

    Particulars

    The applicant claimed that the process of voluntary return required him to provide information and documentation which would bring him to the adverse attention of the authorities.

    The applicant also claimed that if forced to return to Iran he would take with him a video recording of his baptism and Persian Bible and would be betraying himself if he declared himself to be Muslim.

    Ground 1

13. Ground 1 contended that the IAA erred in its application of s 473DD of the Act. In submissions, the applicant contended that the error occurred in relation to what were said to be the following new claims raised in his statutory declaration dated 24 March 2020 (Statutory Declaration):

    (a)that he had been "arrested and intimidated on different occasions" in Iran (CB 186);

    (b)that the Sepah "offered [his] brother a deal" but his brother "refused to cooperate with them", leading up to his arrest and death in custody (CB 187); and

    (c)that the trauma of losing his brother was the impetus for him to seek and convert to Christianity so readily in 2019 (CB 188).

14. At hearing, the applicant’s Counsel confirmed that a forensic decision had been made to challenge only the IAA’s assessment of new information insofar as it related to the three ‘new claims’ identified above. The applicant did not contend that the IAA otherwise erred in its application of s 473DD of the Act.

15. In support of the ground, the applicant relied upon cases indicating the importance of recognising new information and correctly applying to it the criteria under s 473DD of the Act. Such cases included EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180; (2018) 265 FCR 527 (Barker, Griffiths and Moshinsky JJ) and BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 (Rares, Perry and Charlesworth JJ).

    The first ‘new claim’

16. In relation to what was said to have been the first ‘new claim’, the applicant drew attention to the applicant’s Entry Interview (CB 12), in which he had answered “no” to the question “Were you ever arrested or detained by the police or security organisations?” The applicant also relied upon a transcript of his protection visa interview (Transcript), in which he stated that he had decided to leave the country “prior to… being arrested or killed”. The applicant contended, by reference to this material, that the claim he had made to have been arrested was a new one that was required to be assessed according to s 473DD of the Act.

17. However, I accept the Minister’s submission that the claim advanced by the applicant in relation to his arrest (or detention) appears to have been in substance the same as the claim that had been advanced in this regard before the Delegate. The applicant had claimed to have been harassed by members of the Basij, which was considered by the Delegate (CB 126-128). Before the Delegate, the applicant had identified a specific occasion where he claimed that he had been taken by the Basij to a nearby base, where he was effectively detained whilst they endeavoured to force him to sign an undertaking (CB 127). Although the applicant used the word “arrested” in his subsequent Statuary Declaration, he did not elaborate in any manner suggesting that he was referring to a different incident than his previously claimed instance of detention. The applicant made no claim, for example, in the Statutory Declaration, that the claimed incident of detention or arrest had involved some formal process that had not previously been articulated. He simply used a different word to describe what had happened (i.e. being involuntarily taken by the Basij to their base). The IAA therefore, understandably, appears to have regarded the claimed incident as being one and the same.

18. I accept that the applicant said “no” at the Entry Interview when asked if he had previously been “arrested or detained”. However, this did not turn on any potential distinction between those two concepts. The applicant’s subsequent claim he had been detained was also inconsistent with this earlier evidence. Although the applicant referred to leaving Iran “prior to being arrested or killed”, this spoke to a claimed fear of arrest at the time he departed the country. It did not answer whether or not he had claimed to have been arrested previously.

19. Having regard to the above, even if some distinction in the language used by the applicant could be considered “new information”, it is difficult to see how materiality could be demonstrated. The applicant generally submitted that the ‘new claims’ he relied upon were capable of meeting the requirements of s 473DD of the Act and that taking them into account may have “pushed the applicant over the line” regarding acceptance of his claims. However, it is not apparent how the use of the word “arrest” could realistically have achieved this, given that (as found above) the substance of the claim that was relied upon by the applicant did not appear to have changed in any real way. I am therefore not persuaded that materiality, or jurisdictional error, has been demonstrated in relation to the first ‘new claim’ relied upon by the applicant.

    The second ‘new claim’

20. What was said to have been the second ‘new claim’ was that the Sepah "offered [the applicant’s] brother a deal" but his brother "refused to cooperate with them", leading up to his arrest and death in custody (at [8] of the Statutory Declaration) (CB 187).

21. In support of his contention that this was a new claim, the applicant drew attention to the context in [6] (CB 186), in which he responded to the Delegate’s conclusion that he had provided inconsistent and insufficient information regarding his brother’s death. The applicant submitted that the context, therefore, suggested that he was providing new information in response to the Delegate’s concerns.

22. Both parties drew attention to what was said in the Delegate’s decision regarding the applicant’s evidence and claims regarding his brother’s death (CB 128-129). This detailed, inter alia, the following claims made at that stage of the process (footnotes omitted):

    At the SHEV interview, the applicant was asked to describe the manner and circumstances of his brother’s death. The applicant repeated that while at work his brother used insulting words against the supreme leader in front of two Basij members. He claims that this resulted in his brother’s arrest and subsequent detention. He stated that his brother was released shortly after the initial detention however members of the Sepah continued to detain and release his brother from their custody over a period of time until the applicant and his family were advised of his brother’s death... He stated that his brother was in Sepah custody at time of his death and then transferred to a hospital from where his body was released. He stated that the hospital did not conduct an autopsy because the hospital was threatened by the authorities and therefore declared that his brother died of a heart attack. When asked if any of his brother or any family members were politically involved in Iran, the applicant said “no”. When asked why his brother was targeted in this manner, the applicant repeated that it was because of his brother voicing his opinion against the Iranian government on this one occasion. The applicant did not claim any other incidents involving his brother apart from this particular incident. When further prompted and asked if anything has happened to the applicant’s family since or in the recent past, the applicant stated “they warn my family that don’t look for further information about this issue. Otherwise you will end up in the same situation”. However, the applicant did not claim any form of harm to his family members since this incident… or in the recent past and stated that they are currently living in his home area.

    It is noted that the applicant’s testimony at interview is inconsistent with some information provided in the SHEV application. In the SHEV application, although the applicant claimed that his brother voiced out his opinion against the Iranian regime in the presence of a Basij member, he also mentioned that this member tried to gain advantage by making a bad deal with his brother which would bring loss to his brother and brother’s partner.¹⁶ The applicant did not offer to provide any information with regards to this matter at the SHEV interview. Furthermore, the evidence provided by the applicant states that the applicant’s brother died from a heart attack and does not indicate any other information on the contrary.¹⁷ Apart from the death certificate provided the applicant was unable to provide any other documentary evidence to support his claim. There is also no information before me suggesting that people with the applicant’s brother’s profile have been harmed in the manner claimed during the same period. I therefore have concerns with the applicant’s claim about the factual nature and circumstances of his brother’s death. Whilst I accept based on the evidence provided that the applicant’s brother died… due to a heart attack, I do not accept, based on the inconsistencies noted above and lack of evidence, that the applicant’s brother died in the manner and circumstances claimed by the applicant. Given that the applicant’s brother was not politically involved and did not hold a profile of interest, I do not find plausible that the applicant’s brother would be targeted by the Iranian authorities owing to his low level profile. I also cannot find a connection between the applicant and his brother’s death with regards to the applicant being imputed with a political profile on return to Iran.

23. In a statutory declaration that preceded the Delegate’s decision (CB 99), after claiming that his brother had voiced objections to a politically powerful and influential man, the applicant had claimed the following in relation to the “bad deal” referenced by the Delegate:

    52.He expressed those views at [a location] in the presence of a person who happened to be a regime sympathiser and in fact a member of Basij. This man then attempted to gain advantage of my brother’s recklessness in expressing his critical views by trying to force him into a bad deal which bring [loss] to my brother and his partner.

24. The applicant conceded that there was a reference to a “bad deal” in the above. However, this was submitted to be a different “deal” to that which was referred to at [8] of the Statutory Declaration. The applicant submitted that the first deal referenced before the Delegate “was, quite clearly, blackmailing the applicant’s brother”. The “deal” the applicant indicated in his Statutory Declaration was submitted to have been another deal, potentially referable to other evidence before the IAA indicating the Basij may make deals in order to engender support and sympathy. An example was given of what the applicant claimed at interview that the Basij had told him about the advantages of joining them (Transcript, p 41).

25. I am not persuaded that a natural inference from the Statutory Declaration is that it was referring to another “deal”. As the Minister submitted, the context in the Statutory Declaration was also informed by the applicant’s statement at [6] that he had “declared everything that was known to [him] in [his] statement and at the interview” about his brother’s death. This does not suggest that the applicant was proposing to offer some new information in his Statutory Declaration. Although the applicant’s knowledge at the time of the Statutory Declaration could conceivably be regarded as new information, the applicant does not appear to have been conveying any difference in his knowledge about the situation from his claims before the Delegate and, in any event, this does not appear to be the focus of the applicant’s complaint.

1. Having regard to the above, I have not been persuaded that a new claim was made regarding the “deal”.

   The third ‘new claim’

2. The third ‘new claim’ relied upon by the applicant was contended to be a claim in his Statutory Declaration that the trauma of losing his brother was the impetus for him to seek and convert to Christianity so readily in 2019 (CB 188).

3. At the hearing, the applicant accepted that he had spoken at interview about being depressed and lonely, and looking for something after his brother’s death within the context of his conversion to Christianity (Transcript, p 22). However, he suggested that his references in the Statutory Declaration to being “utterly broken when [he] heard about [his] brother’s death”, and to being invited to church within this context, provided “more of the direct causal link about why the applicant became a Christian”.

4. However, I accept the Minister’s submission that the claimed causal link between the applicant’s conversion and his brother’s death had already been established on the material before the Delegate. The applicant had explained at interview that he had been invited to church in the context of being depressed and lonely following his brother’s death (Transcript, p 22). This was recognised by the IAA, which (in summarising the applicant’s claims at [24]) stated:

   24.… When the applicant was asked what brought him to Christianity he mentioned that after the death of his brother in 2018 he became depressed and was looking for something that could make him happy and so he went to church.

5. I am therefore not persuaded that the Statutory Declaration raised any new claim that the trauma of losing his brother was the impetus for the applicant to seek and convert to Christianity.

   Conclusion regarding ground 1

6. For the above reasons, I do not accept that jurisdictional error has been demonstrated under ground 1.

   Ground 2

7. Ground 2 contended that the IAA failed to consider a claim or integer of a claim made by the applicant.

8. The applicant relied upon what was said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [47]:

   47.The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

9. The applicant also cited authorities supporting the need for a decision maker to give “proper, genuine and realistic consideration” to a claim, including Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [25] (per Gummow J) and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [25] per the Court (Griffiths, White and Bromwich JJ). By reference to Ali v Minister for Home Affairs [2020] FCAFC 109; (2020) 278 FCR 627 (Collier, Reeves and Derrington JJ), he submitted that this may sometimes require specific findings of fact. To those authorities, I would add the caution expressed in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [26] (per Kiefel CJ, Keane, Gordon and Steward JJ).

10. Two claims, or integers, were relied upon.

    The first claim or integer

11. The first was that the process of voluntary return required the applicant to provide information and documentation that would bring him to the adverse attention of the authorities. The applicant observed that in a statutory declaration dated 13 January 2020, he had claimed at [59] (CB 99):

    59.I was advised The Iranian embassy consular section offers travel pass to those Iranian nationals who have entered Australia without passports. However, the application that needs to be completed, signed and submitted to acquire the travel pass requires disclosure of highly incriminating information which is certain to bring the holder to the adverse attention of the authorities upon arrival, at Imam Khomeini International Terminal.

12. The applicant submitted that this was not dealt with by the IAA’s generally expressed findings at [28], which were as follows (footnote omitted):

    28.I accept the applicant may be identifiable as someone who has sought asylum in a Western country where he has lived for a number of years. The country information before me⁵ notes that Iran has historically refused to accept involuntary returnees. Under a Memorandum of Understanding with Australia Iran has agreed to accept those who arrive after 19 March 2018 and have no legal right to remain in Australia. I consider if he were to return it would be on a voluntary basis. Returnees re-entering on their passport or temporary travel documents issued by Iranian diplomatic representatives do not attract much interest from authorities and will generally only be questioned if they are already on the authority’s radar, for example, because they committed a crime in Iran before they left. It is also reported that the Iranian authorities pay little attention to failed asylum seekers and have little interest in prosecuting them for activities conducted outside Iran such engaging in Christian activities. They accept that many Iranians travel overseas for a number of reasons including work. DFAT states it is not aware of any barriers for returnees in terms of finding work, shelter or returning home. I do not accept the applicant was targeted by the Basij as claimed or that he was wanted by the Basij or anyone else when he left Iran... I do not accept his brother was killed by the Sepah or that the applicant’s family is under the watchful eye of the Iranian authorities as a consequence. The applicant has not been involved in any political activities in Australia. Based on the applicant’s profile and the country information detailed above I am not satisfied there is a real chance he will suffer harm on account of being a returning asylum seeker from a Western country where he has lived for a number of years even taking into account his past experiences in Iran.

13. The applicant observed that he had claimed he would be on the radar of the authorities, due to the process of needing to obtain a travel pass and the incriminating information that would therefore be provided.

14. I am not persuaded that it has been demonstrated that this was not considered by the IAA. The IAA accepted that the applicant may be identifiable as an asylum seeker. However, the IAA relied upon information indicating that a returnee, even travelling on temporary travel documents, would not attract much interest and would generally only be questioned if they were on the authorities’ radar. The IAA then considered that it had rejected the claimed reasons for the applicant being on the authorities’ radar, being information that the applicant had claimed would incriminate him. This included the applicant’s claimed conversion and what he claimed had been done to his family by the Basij. In relation to the applicant’s engagement with Christian activities in Australia, this was a matter regarding which the IAA concluded the authorities would have “little interest”.

15. The applicant does not appear to have claimed that any other “incriminating information” was relevant. The IAA does not appear to have regarded the process of obtaining temporary travel documentation as generally sufficient to place a person on the authorities’ radar. The IAA otherwise rejected the claimed bases that the applicant contended would expose him to adverse attention from the authorities (and therefore place him on the authorities’ radar).

16. In reasoning in the above manner, the IAA rejected that the applicant would face harm on account of either the process or event of his return to Iran. I accept the Minister’s submission that these findings were dispositive of the applicant’s claims.

    The second claim or integer

17. The second claim or integer the applicant contended the IAA failed to consider concerned what was said to have been the applicant’s claim in his 13 January 2020 statutory declaration at [50] that he may be an involuntary returnee:

    50.If ever forced to return to Iran, I will be taking all my Bible study material as well as my Persian Bible and video recordings of my Baptismal ceremony. These documents form an integral part of my religious identity and I feel I would be betraying myself to my own true belief if I ever declare myself a Muslim in order to protect my life or liberty.

    (emphasis added)

18. The IAA was said to have erred in only considering whether the applicant would be harmed as a voluntary returnee, in a manner comparable to CLS15 v Federal Circuit Court of Australia [2017] FCA 577; (2017) 72 AAR 502 (CLS15) (Charlesworth J).

19. However, this is a different case to CLS15. In CLS15, the applicant had claimed that he would come to the attention of the authorities because of the involuntary nature of his return. In contrast, the claim relied upon by the applicant in this case simply referred to the possibility of being forced to return to Iran and then claimed that adverse attention would be attracted due to his carriage of documents forming an “integral part of [his] religious identity” as a Christian. The IAA did not accept that the applicant was a Christian.

20. In CLS15, the Tribunal was found to have engaged in confused thinking regarding whether the applicant’s return would be voluntary or involuntary. This was found to have resulted in a failure to make factual findings concerning the appellant’s circumstances and apply the statutory criteria to the facts as found (at [60]). In contrast, in the present case the IAA made a clear finding that if the applicant “were to return it would be on a voluntary basis” (at [28]). This was considering country information to the effect that Iran had historically refused to accept involuntary returnees and had only made an exception regarding arrivals in Australia after 19 March 2018. That exception did not apply to the applicant.

21. The IAA, therefore, rejected that involuntary removal would occur and proceeded to consider what would happen if the applicant did return, voluntarily. This was a permissible approach for the IAA to have taken, which did not result in the error identified in CLS15: see DEL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2792 at [23]-[35] (Judge Driver).

22. Having regard to the above, I am not persuaded that the IAA failed to consider or determine the claims made by the applicant, nor any integer of those claims.

    CONCLUSION

23. For the reasons given above, the application must be dismissed.

24. I will hear from the parties in relation to costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       5 December 2024