CJJ20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 950
•19 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CJJ20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 950
File number(s): SYG 1270 of 2020 Judgment of: JUDGE ZIPSER Date of judgment: 19 June 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal refusing to grant protection visa to applicant from Iran – Direction No 84 given by Minister under s 499 of Act – obligation of Tribunal pursuant to Direction No 84 to take into account DFAT country information assessment where relevant – Tribunal did not take into account or consider most recent DFAT country information assessment concerning Iran – whether information in DFAT assessment was relevant to Tribunal’s decision – whether any failure by Tribunal to comply with Direction No 84 and s 499 of Act was material – whether Tribunal’s decision could realistically have been different if Tribunal had considered DFAT assessment Legislation: Migration Act 1958 (Cth) ss 36, 65, 476, 499
Direction No 84 – Consideration of Protection Visa Applications
Cases cited: ELA18 v Minister for Home Affairs [2019] FCA 1482
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 512
Minister for Home Affairs v BRO18 [2024] FCAFC 27
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 23 May 2025 Place: Parramatta Solicitor for the Applicant: Mr N Dobbie (Dobbie and Devine Immigration Lawyers Pty Ltd) Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Mills Oakley ORDERS
SYG 1270 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJJ20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
19 JUNE 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.
2.The name of the second respondent is amended to “Administrative Review Tribunal”.
3.The application is dismissed.
4.The applicant pay the first respondent’s costs in the sum of $6,100.
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 ZIPSER
INTRODUCTION
On 26 May 2020, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 6 May 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicant a protection (subclass 866) visa under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION
Section 499 of the Act relevantly provided at the time of the Tribunal’s decision:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
….
(2A) A person or body must comply with a direction under subsection (1).
“Direction No. 84 – Consideration of Protection Visa Applications” dated 24 June 2019 (Direction 84) was issued under s 499 of the Act. Clauses 1 and 3 state:
1. This Direction applies to a decision maker 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 refuse to grant a Protection visa. This direction is subject to the Act and Regulations and other applicable laws.
….
3. Where the Department of Foreign Affairs and Trade 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. The decision maker is not precluded from considering other relevant information about the country.
FACTUAL BACKGROUND
In March 2015, the applicant, a national of Iran, arrived in Australia on a temporary work visa.
On 28 July 2015, the applicant lodged with the Department of Immigration and Border Protection (Department) an application for a protection visa. The applicant claimed that he had converted to Christianity in Australia and, as a result, he feared harm from the Iranian authorities if he returned to Iran.
On 18 May 2016, a delegate of the first respondent, following an interview with the applicant on 5 May 2016, refused to grant the visa. The delegate did “not accept the applicant is a genuine Christian convert”, “reject[ed] his claims in their entirety”, and was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s 36(2) of the Act.
On 7 June 2016, the applicant applied to the Tribunal for review of the delegate’s decision.
On 19 February 2020, the applicant attended a hearing before the Tribunal to give evidence and present arguments.
On 6 May 2020, the Tribunal made a decision affirming the decision under review.
TRIBUNAL’S DECISION
The Tribunal at [5]-[9] set out the criteria for a protection visa.
The Tribunal at [11]-[20] summarised the applicant’s claims. The applicant claimed that, following his arrival in Australia in March 2015, he decided to convert to Christianity and was baptised in June 2015. Because of his conversion, he feared returning to Iran.
The Tribunal at [21]-[23] considered country information concerning the treatment of Christians in Iran.
The Tribunal at [24]-[40] considered whether the applicant was a genuine Christian convert and whether the applicant was likely to practise Christianity on return to Iran. The Tribunal concluded at [39] that the applicant was not a genuine Christian convert, but instead had converted to Christianity for the sole purpose of making a claim for protection.
The Tribunal at [41]-[42] considered the applicant’s conduct in Australia and, with reference to s 5J(6) of the Act, was “not satisfied that the applicant engaged in his conduct in Australia for purposes other than to strengthen his claim that he is a refugee”, and therefore was required to disregard the applicant’s conduct in Australia in considering whether he met the refugee criterion for a protection visa in s 36(2)(a) of the Act.
The remaining question was whether the applicant met the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act. The Tribunal considered this issue at [43]-[44] and [47]. The Tribunal concluded at [47] that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 23 May 2025
On 26 May 2020, the applicant filed in this Court an application for judicial review of the Tribunal’s decision which contained a single ground of review (reproduced as written) (Application):
1.The Second Respondent constructively failed to exercise its jurisdiction, by reason of its failure to comply with a relevant ministerial direction made pursuant to s 499 of the Migration Act 1958, when determining Applicant's application for review.
Particulars:
(a) Subsection 499(2A) of the Migration Act 1958 ('the Act') required the Tribunal to comply with a direction made under s499(1) of the Act. Ministerial Direction 84 ('the Direction'), made pursuant to s499(1) of the Act, relevantly directed:
Clauses
This Direction applies to a decision maker 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 refuse to grant a Protection visa. This direction is subject to the Act and Regulations and other applicable laws.
In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision maker is to take account of the following guidelines prepared by the Department of Home Affairs to the extent that they are relevant to the decision under consideration.
‘Refugee Law Guidelines’
‘Complementary Protection Guidelines’
Where the Department of Foreign Affairs and Trade 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. The decision maker is not precluded from considering other relevant information about the country.
(b) The Tribunal, in finding that the Applicant was not a person to whom Australia owed protection obligations, placed significance on information contained in a Department of Foreign Affairs and Trade ('DFAT') Country Information Report Iran, dated 7 June 2018. However, on 14 April 2020, DFAT published an updated Country Information Report Iran. That 2020 DFAT report included relevant information (for example, updated information relating to the treatment of returnees at paragraphs 5.29 to 5.31), and which was material to the Tribunal’s review.
(c) The Tribunal’s failure to have regard to the 2020 DFAT report was a failure to comply with the Direction, a failure to have regard to relevant information, and therefore a failure to conduct the review required by the Act, such that its decision is infected with jurisdictional error.
On 9 November 2020, the applicant filed a written submission (AS).
On 22 December 2020, the first respondent filed a written submission (RS).
Following a period of inactivity, on 1 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 15 May 2025. By consent, the hearing date was changed to 23 May 2025.
Hearing on 23 May 2025
At the hearing in this Court on 23 May 2025, Nigel Dobbie, solicitor, appeared for the applicant and Nicholas Swan of counsel appeared for the first respondent.
Mr Swan tendered a Court Book (CB) which contained the Tribunal’s decision and documents before the Tribunal. Mr Dobbie read an affidavit which annexed extracts of:
(a)DFAT Country Information Report Iran dated 7 June 2018 (2018 DFAT Report) (which was considered by the Tribunal); and
(b)DFAT Country Information Report dated 14 April 2020 (2020 DFAT Report) (which was not considered by the Tribunal).
A copy of Direction 84 was provided to the Court.
The parties’ lawyers then made oral submissions which supplemented their written submissions. The submissions are referred to below.
CONSIDERATION
The applicant claimed that, following his arrival in Australia, he converted to Christianity and, as a result of the conversion and his Christian faith, he faced a real chance of serious harm if required to return to Iran.
In relation to the refugee criterion for a protection visa in s 36(2)(a) of the Act, s 5J(6) of the Act required the Tribunal to disregard “any conduct engaged in by the person in Australia … unless the person satisfies the [Tribunal] that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee”. The Tribunal at [42] found that, pursuant to s 5J(6), following its earlier findings that the applicant was not a genuine Christian convert and he converted to Christianity for the sole purpose of making and strengthening a claim for a protection visa, it was required to disregard the applicant’s conduct in Australia.
In relation to the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act, the Tribunal at [43]-[44] considered whether, although the applicant was not a genuine Christian convert, he “faces a real risk of significant harm on account of his claimed conversion to Christianity and … his activities in Australia associated with this claimed conversion”: at [43].
The Tribunal stated at [43] and [44]:
[43] The Tribunal then considers whether the applicant faces a real risk of significant harm on account of his claimed conversion to Christianity and that his activities in Australia associated with this claimed conversion. As the Tribunal previously acknowledged, the applicant has engaged in a number of activities connected with the Liberty Baptist Church since he started attending there shortly after his arrival in Australia. The applicant, in his written statement, clearly demonstrates knowledge of Christianity that would be expected of someone who has engaged in the type of activities in Australia of which the applicant has participated. However, as the Tribunal pointed out to the applicant, the DFAT report at 3.34 states that international observers advise that Iranians who convert to Christianity outside the country are unlikely to face adverse attention from authorities upon return to Iran, provided they have not previously come to the attention of authorities for political activities conducted in Iran, maintain a low profile and do not engage in proselytisation or political activities within the country. The migration agent submitted that Christians are monitored, Christian house churches are infiltrated and laws are enforced. The Tribunal accepts that this is the case, but in the circumstances of this applicant, the Tribunal is not satisfied that if the applicant were to be returned to Iran from Australia, there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty, tortured, subject to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment. This is because the Tribunal is satisfied that the applicant is not a genuine Christian convert and if he returned to Iran now or in the reasonably foreseeable future, he would not engage in any Christian activities in Iran. As the Tribunal is not satisfied that the applicant is a genuine Christian convert, the Tribunal is not satisfied that the applicant would be considered to have imputed pro-Western political views. The DFAT report notes at 5.25 that Iranian authorities pay little attention to failed asylum seekers in Iran and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims. This includes posting social media comments critical of the government (noting that heavy internet filtering means that most Iranians will never see them), or converting to Christianity.
[44]In the circumstances of this applicant, the Tribunal accepts that he has posted articles on FaceBook concerning Christianity, but because the applicant is not a genuine Christian convert and would not engage in any Christian related activity upon his return to Iran, there is not a real risk of significant harm on account of his FaceBook posts, even if authorities in Iran became aware of them.
The “DFAT report” to which the Tribunal referred at [43] was the 2018 DFAT Report. By the date of the Tribunal’s decision on 6 May 2020, the 2020 DFAT Report had been published.
The nub of the applicant’s complaint to this Court, explained in particulars (b) and (c) of ground 1, is:
(b)… That 2020 DFAT report included relevant information (for example, updated information relating to the treatment of returnees at paragraphs 5.29 to 5.31), and which was material to the Tribunal’s review.
(c) The Tribunal’s failure to have regard to the 2020 DFAT report was a failure to comply with the Direction, a failure to have regard to relevant information, and therefore a failure to conduct the review required by the Act, such that its decision is infected with jurisdictional error.
The applicant’s complaint focuses on the Tribunal’s reliance on paragraph 5.25 of the 2018 DFAT Report in the penultimate sentence of [43]. Paragraph 5.25 provided information about the treatment of failed asylum seekers upon return to Iran as of June 2018. Paragraphs 5.29 to 5.31 of the 2020 DFAT Report provided information about the treatment of failed asylum seekers upon return to Iran as of April 2020. The applicant’s written submission, after setting out paragraph 5.25 of the 2018 DFAT Report and paragraphs 5.29 to 5.31 of the 2020 DFAT Report, particularised at AS [22] the additional information in the 2020 DFAT Report concerning the treatment of failed asylum seekers upon return to Iran which was not in the 2018 DFAT Report. AS [22] states:
It can be seen that the 2020 DFAT report contains additional information relating to returnees that is not contained in the 2018 DFAT report (that the Tribunal relied on to find that the Applicant is not a person to whom Australia owes protection obligations: CB 302 at [43]). That additional information is:
22.1 That returnees who return as holders of a laissez-passer are questioned by the Immigration Police on return to Iran, and that 'Arrest and mistreatment are not common during this process'.
22.2That returnees face a low risk of monitoring, mistreatment or other forms of official discrimination.
It was common ground between the parties that:
(a)the 2020 DFAT Report was a “country information assessment expressly for protection status determination purposes” within the meaning of this phrase in cl 3 of Direction 84; and
(b)the 2020 DFAT Report was “available to” the Tribunal within the meaning of this term in cl 3 of Direction 84.
The remaining questions for determination by the Court are:
(a)whether the assessment in paragraphs 5.29 to 5.31 of the 2020 DFAT Report was “relevant” within the meaning of this term in cl 3 of Direction 84;
(b)if the additional information in paragraphs 5.29 to 5.31 was “relevant”, whether the Tribunal breached s 499(2A) of the Act; and
(c)if the Tribunal breached s 499, whether the breach was material in the manner discussed in cases such as LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 512 (LPDT).
For the following reasons, the ground in the Application does not identify a jurisdictional error in the Tribunal’s decision.
First, as stated above, a question is whether the assessment in paragraphs 5.29 to 5.31 of the 2020 DFAT Report was “relevant” within the meaning of this term in cl 3 of Direction 84.
Paragraphs 5.29 to 5.31 of the 2020 DFAT Report address conditions for failed asylum seekers on return to Iran. However, the applicant never claimed to the Department or the Tribunal that he feared harm on return to Iran because he was a failed asylum seeker. In cases such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 the Federal Court has stated that “the Tribunal is not to limit its determination to the case articulated by the applicant if evidence and materials which it accepts raises a case not articulated”, so long as the unarticulated case is “raised squarely on the material available to the Tribunal”, or is “apparent on the face of the material before the Tribunal”: at [58]. During the hearing, I asked Mr Dobbie to identify any material in the Court Book which raised a case (albeit not articulated) that the applicant feared harm if required to return to Iran as a failed asylum seeker, or that there was a real chance the applicant may face harm on return to Iran as a failed asylum seeker. Mr Dobbie was unable to identify any material.
Further, as stated in SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]-[81] (and applied in ELA18 v Minister for Home Affairs [2019] FCA 1482 at [28]-[32]), “whether a claimant is represented by professional advisers, and whether those advisers articulated a case to the tribunal which it is later said not to have been dealt with, are questions relevant to whether a matter can be considered to have clearly arisen from the materials before the Tribunal”, and “it may be assumed that the claims which a represented applicant wishes to make before the Tribunal are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed”. In the present matter, the applicant was represented by a registered migration agent through the course of his protection visa application before the Department and Tribunal.
I do not consider that a claim or case arose on the materials that the applicant feared harm in Iran as a failed asylum seeker such that the Tribunal had to consider it. For these reasons, paragraphs 5.29 to 5.31 of the 2020 DFAT Report were not “relevant” to the Tribunal’s decision within the meaning of this term in cl 3 of Direction 84. It follows that the Tribunal did not fail to comply with Direction 84 or breach s 499(2A) of the Act.
Consistent with the above, the Tribunal at [10] stated that, in accordance with Direction 84, it has taken into account guidelines and country information assessments prepared by DFAT “to the extent that they are relevant to the decision under consideration”. For reasons explained above, paragraphs 5.29 to 5.31 of the 2020 DFAT Report were not “relevant” to the Tribunal’s decision.
Second, on a fair reading of the Tribunal’s reasons at [43], I do not consider that the Tribunal, in stating that “Iranian authorities pay little attention to failed asylum seekers in Iran”, was intending to address a claim concerning whether the applicant faced a real risk of significant harm as a failed asylum seeker. Instead, the Tribunal was focusing on the risk of harm to the applicant arising from “activities conducted outside Iran” (penultimate sentence of [43]), in particular “converting to Christianity” (last sentence of [43]).
Third, even if the Tribunal, having turned its mind at [43] to the attention paid by the Iranian authorities to failed asylum seekers, was required to assess whether the applicant faced a real risk of significant harm as a failed asylum seeker, in a context where the Tribunal had regard to the 2018 DFAT Report, the assessment in paragraphs 5.29 to 5.31 of the 2020 DFAT Report could only be “relevant” within the meaning of this term in cl 3 of Direction 84 if there was additional information in paragraphs 5.29 to 5.31 which was relevant to the reasoning process of the Tribunal at [43].
To assess whether any of the additional information in paragraphs 5.29 to 5.31 of the 2020 DFAT Report was relevant to the reasoning process of the Tribunal at [43], it is necessary to understand the reasoning process. It appears that the Tribunal:
(a)found in a middle sentence of [43] that it was “not satisfied that if the applicant were to be returned to Iran from Australia, there are substantial grounds for believing that there is a real risk that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty, tortured, subject to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment”; and
(b)then provided reasons in support of this finding, being:
(i)The Tribunal was satisfied “that the applicant is not a genuine Christian convert and if he returned to Iran now or in the reasonably foreseeable future, he would not engage in any Christian activities in Iran”.
(ii)The Tribunal was “not satisfied that the applicant would be considered to have imputed pro-Western political views”.
(iii)Based on paragraph 5.25 of the 2018 DFAT Report, “Iranian authorities pay little attention to failed asylum seekers in Iran and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims”, and including “posting social media comments critical of the government … or converting to Christianity”.
During the hearing on 23 May 2025, I asked Mr Dobbie to explain how the two items of additional information in the 2020 DFAT Report particularised at AS [22] (see paragraph 30 above) could be relevant to the Tribunal’s reasoning process at [43] explained in the above paragraph.
In relation to the statement in paragraph 5.29 of the 2020 DFAT Report that, although “authorities pay little attention to failed asylum seekers on their return to Iran”, “those who return on a laissez-passer are questioned by the Immigration Police [at the airport] in Tehran about the circumstances of their departure and why they are travelling on a laissez-passer”, as I put to Mr Dobbie, the applicant had previously held an Iranian passport (CB 60) and he never claimed he would return to Iran on a laissez-passer. Mr Dobbie agreed. For this reason, the additional information in paragraph 5.29 was not relevant to the Tribunal’s decision.
In relation to the statement in paragraph 5.31 of the 2020 DFAT Report that “returnees are unlikely to attract attention from the authorities and face a low risk of monitoring, mistreatment or other forms of official discrimination”, Mr Dobbie stated that these forms of official discrimination could, based on the material before the Tribunal, constitute “significant harm”, although Mr Dobbie did not explain which categories of “significant harm” in s 36(2A) of the Act might be met or satisfied. I disagree that these forms of official discrimination could, based solely on this sentence in paragraph 5.31 of the 2020 DFAT Report, constitute “significant harm” within the meaning of s 36(2A). As I put to Mr Dobbie, if the Tribunal found, based on this meagre information, that the applicant faced a real risk of significant harm (within the meaning of this term in s 36(2A)) on return to Iran, the first respondent may have grounds for contending that the finding involved jurisdictional error. Consistent with this point, the first respondent stated at RS [25] that “it would be irrational for the Tribunal to find that the applicant had a well founded fear of persecution based simply on [this information in paragraph 5.31 of] the 2020 DFAT Report”. Mr Dobbie also stated that, if the Tribunal had considered paragraph 5.31 of the 2020 DFAT Report, it could have investigated the meaning and degree of “monitoring”, and “mistreatment” referred to in paragraph 5.31. However, it is not part of the applicant’s pleaded case in this Court proceeding that the Tribunal fell into jurisdictional error by not making further enquiries. For these reasons, even if the Tribunal was required to assess whether the applicant faced a real risk of significant harm as a failed asylum seeker, the additional information in paragraph 5.31 was not relevant to the Tribunal’s decision.
Fourth, even if the Tribunal breached s 499 of the Act, the breach is only a jurisdictional error if it was material. As stated in LPDT at [14] and [16], the applicant must “demonstrate that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made”, and:
The question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error. “Realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable.
The “applicant for judicial review bears the onus of establishing the materiality of any error so as to render it jurisdictional”: Minister for Home Affairs v BRO18 [2024] FCAFC 27 at [14].
For reasons explained in paragraphs 43 and 44 above, the applicant has not persuaded me that the breach was material. Even if the Tribunal had considered paragraphs 5.29 to 5.31 of the 2020 DFAT Report, I am not persuaded there is a realistic possibility that the outcome of the decision could have been different. I agree with the first respondent’s submission at RS [25] that “the applicant has not discharged his onus of showing a realistic possibility that the Tribunal could have found in his favour if it had considered the 2020 DFAT Report”.
Since the ground in the Application does not identify a jurisdictional error in the Tribunal’s decision, the Application must be dismissed.
COSTS
At the conclusion of the hearing, the Court invited submissions from the parties on costs. Both parties sought costs in the sum of $6,100 if they succeeded, and did not oppose the making of an order for $6,100 if the other party succeeded. Since the Application is to be dismissed, I will order that the applicant pay the first respondent’s costs in the sum of $6,100.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 19 June 2025
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