DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 774

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774

File number: MLG 2232 of 2018

Judgment of: JUDGE LADHAMS

Date of judgment: 23 August 2024

Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) in assessing new information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to obtain new country information – jurisdictional error established – writs issued.

Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 473CB, 473DC, 473DD, 476, 477, 499

Cases cited:
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

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

BDI17 v Minister for Immigration (2018) 339 FLR 147; [2018] FCCA 2162

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189

BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75

BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272

BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Division: Division 2 General Federal Law

Number of paragraphs: 107

Date of hearing: 9 November 2023

Place: Perth (via Microsoft Teams)

Counsel for the Applicant: Mr C Honnery

Solicitor for the Applicant: Amity Lawyers

Counsel for the First Respondent: Mr R Minson

Second Respondent: Submitting appearance for the second respondent, save as to costs.

Solicitor for the Respondents: Clayton Utz
ORDERS

MLG 2232 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DXP18

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

23 AUGUST 2024

THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 5 July 2018.
2.A writ of mandamus issue, directed to the second respondent, requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).

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 LADHAMS:
INTRODUCTION

The applicant is a citizen of Iran who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority). The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on two grounds which allege that the Authority:
(a)misapplied s 473DD of the Migration Act in its assessment of new information submitted by the applicant; and
(b)acted unreasonably in failing to exercise, or consider the exercise of, the discretion in s 473DC of the Migration Act to get new information, being the most recent report by the Department of Foreign Affairs and Trade (DFAT).
For the reasons explained below, I have found that the Authority made two jurisdictional errors. The first is that in considering whether part of the new information provided by the applicant to the Authority was ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act, the Authority considered whether the information was true rather than whether it was capable of being believed. The second is that the Authority unreasonably failed to exercise, or to consider the exercise of its discretion in s 473DC of the Migration Act to get a copy of the most recent DFAT report on Iran. I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to make a new decision according to law.
VISA APPLICATION AND DECISIONS
The applicant arrived in Australia by sea in June 2013 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On or about 21 December 2016 the applicant applied for a protection visa.
The applicant attended an interview with an officer of the Minister’s Department on 4 July 2017 to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 6 October 2017. The matter was then referred to the Authority in accordance with s 473CA of the Migration Act.
On 9 November 2017 the applicant provided a submission and new information to the Authority.
On 5 July 2018 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
The Authority was not satisfied that the requirements of s 473DD of the Migration Act were met in relation to new information provided by the applicant comprising extracts from country information reports, new claims about the applicant’s social media activity, and extracts from the applicant’s Facebook page, including content relating to alcohol consumption and socio-political opinion. The Authority’s reasons relating to new information are discussed in greater detail below in the consideration of ground 1.
The Authority expressed concerns about the applicant’s evidence regarding his claim to have converted to Christianity, including that the applicant provided inconsistent evidence regarding his interest in Christianity which did not reflect well on his credibility. The Authority accepted that the applicant attended church services for a few months in 2015 and that he was baptised in June 2015. The Authority did not accept that the applicant started exploring and thinking about Christianity while he was still in Iran and the Authority had a number of concerns about the strength and genuineness of the applicant’s belief in, and commitment to, Christianity.
The Authority considered the applicant’s claim at the protection visa interview that he would be unable to return to Iran because the authorities would know from his Facebook page that he had converted to Christianity. The Authority found that the applicant had two Facebook accounts, one in his name and one in another name. The Authority noted that, when questioned by the delegate about the Christian content being on the Facebook page that was not in the applicant’s name, the applicant claimed that the Iranian authorities would still be able to recognise him from his photo. The Authority found that the applicant posted Christian content on his Facebook page that was not in his name two weeks before his protection visa interview to strengthen his claims for protection. The Authority also noted that the delegate accessed the applicant’s Facebook pages after the protection visa interview and found that the account originally in the applicant’s name was inactive and the account that had been in another name had been changed to the applicant’s name.
The Authority accepted that many people who are believers in a certain religion do not have all the required knowledge about that religion. However, the Authority did not accept that someone who had claimed to have studied Christianity while in Iran and who had claimed to have gone to church routinely in Sydney for three months and to have been going to church since early 2017 in Melbourne would not be able to answer basic questions about Christianity.
The Authority was not satisfied that the applicant had genuinely converted to Christianity or that the applicant would continue to practise Christianity, attend church, identify as a Christian or tell everyone how he was saved if he were to return to Iran.
In assessing whether the applicant met the refugee criterion in s 36(2)(a) of the Migration Act, pursuant to s 5J(6) of the Migration Act, the Authority disregarded the applicant’s conduct of attending church, studying the Bible, being baptised and posting Christian-themed content on Facebook because the Authority considered that the applicant had not genuinely converted to Christianity and engaged in these activities only for the purpose of strengthening his protection claims.
The Authority considered a claim made on behalf of the applicant that he had renounced Islam and therefore may be charged with apostasy upon return to Iran. The Authority considered that it would be unlikely that the applicant would come to the attention of the authorities for not attending mosque or participating in religious observance and noted that there was no evidence before it that it was permitted to consider indicating that the applicant had expressed dissatisfaction with Islam. The Authority was not satisfied that the applicant faced a real chance of harm in Iran from the Iranian authorities or any other group or person because of his past or any future failure to actively involve himself in religious observance or activities while living in Iran.
The Authority accepted that the Iranian authorities would either know or suspect he had sought asylum overseas if he voluntarily returned to Iran. However, the Authority was not satisfied that the applicant would face a real chance of harm from the Iranian authorities on return to Iran on that basis.
In considering the complementary protection criterion in s 36(2)(aa) of the Migration Act, the Authority noted that there was no claim, and nothing in the materials before it to indicate, that the Iranian authorities were aware of the applicant’s church attendance and baptism, and the Authority found that as the applicant was not a person of interest to the authorities, the chance of the authorities monitoring his Facebook account and becoming aware of the Christian content was no more than remote. The Authority considered that the applicant would not practise Christianity or identify as Christian on return to Iran and was not satisfied that there was a real risk that the applicant would suffer significant harm as a result of his involvement with Christianity in Australia. This finding was made taking into account that a person who renounces Islam and converts to another religion may be charged with apostasy.
JUDICIAL REVIEW APPLICATION
The applicant filed his application on 30 July 2018 and therefore made the application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant relies on a further amended application filed on 3 November 2023 which contains the following grounds:
1.The Second Respondent’s (the Authority’s) assessment of new information under s 473DD of the Migration Act 1958 (Cth) (the Act) was affected by jurisdictional error.
Particulars
a)The applicant submitted new information to the Authority, comprising:
i.Facebook posts and photos of the applicant with a large quantity of alcohol, which is regarded as anti-regime;
ii.Submissions advancing new claims based on the political, anti-regime content of the posts.
b)In deciding not to consider the new information under s 473DD of the Act, the Authority:
i.erroneously categorized a photo of a pre revolution Iranian flag, which is regarded as anti-regime, as “new information” when this photo was in fact before the Delegate: (compare CB pp 127 and 187);
ii. did not consider the criteria under s 473DD(b)(ii) of the Act;
iii.determined there were not exceptional circumstances to justify considering the new information under s 473DD(a) at the outset of its assessment of new information under s 473DD, contrary to the correct approach which is to consider issues relating to s 473DD(b) prior to considering s 473DD(a); and
iv.assessed the genuineness of the new claims at a preliminary stage of its review.
c)The Authority’s errors deprived the applicant of a realistic possibility of a different outcome.
2.The Authority’s failure to obtain the most recent DFAT report was legally unreasonable, lacked any evident and intelligible justification, and/or stultified the performance of its statutory task.
Particulars
a)The delegate’s decision was referred to the Authority on 10 October 2017;
b)On 7 June 2018, approximately one month prior to the Authority’s decision on 5 July 2018, DFAT published its country information report on Iran, replacing the previous DFAT report on Iran published on 21 April 2016;
c)The Authority relied on the 2016 DFAT report in its assessment of the applicant’s protection claims and did not obtain, or considering obtaining, the 2018 DFAT report;
d)Evidence indicates that Authority had, or reasonably ought to have had, knowledge of the publication of the 2018 DFAT report prior to making its decision (see affidavit of Navid Koushke Baghi dated 31 October 2023);
e)The Authority’s failure to have regard to the most recent DFAT report undermined a core aspect of its review function, and could realistically have resulted in a different outcome, as the 2016 and 2018 DFAT reports differ in material respects that are relevant to the applicant’s protection claims.
The evidence before the Court comprises:
(a)the court book filed on behalf of the Minister on 6 October 2023;
(b)an affidavit affirmed by the applicant’s lawyer, Navid Koushke Baghi, and filed on 12 October 2023 on behalf of the applicant, annexing the 2016 DFAT Country Information Report on Iran which was referred to by the delegate and the Authority; and
(c)a second affidavit affirmed by Mr Baghi and filed on behalf of the applicant on 1 November 2023, annexing:
(i)email correspondence dated 6 October 2023 from Mr Baghi to the Authority attaching a request for access to documents under Freedom of Information (FOI),
(ii)the Authority FOI decision letter dated 24 October 2023, granting full access to the documents requested;
(iii)an email sent on 7 June 2018 by Kate Cunningham to an email address or group described as ‘AAT – MR Division – IAA’ attaching a copy of the 2018 DFAT Country Information Report on Iran (2018 DFAT report); and
(iv)an email sent on 13 June 2018 by Kate Cunningham to an email address or group described as ‘AAT – MR Division – IAA – Reviewers Team’ attaching a copy of the 2018 DFAT report on Iran that was marked up to show the changes from the 2016 DFAT report.
GROUND 1
By ground 1, the applicant asserts that the Authority made a jurisdictional error in its assessment of new information under s 473DD of the Migration Act.
Relevant legislation and principles
Before turning to the reasoning of the Authority and the specific errors alleged by the applicant, it is convenient to address some of the general principles relating to the consideration of new information by the Authority.
New information is defined in s 473DC(1) of the Migration Act as ‘documents or 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.
The Authority may only consider new information if the requirements of s 473DD of the Migration Act are met. That section provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider 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 applicant’s claims.
The High Court held in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17) that the Authority must assess new information provided by a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) of the Migration Act, and if either or both of those criteria are met, taking that circumstance into account in then assessing whether there are exceptional circumstances for the purposes of s 473DD(a) of the Migration Act. The plurality said at [11]-[12] (footnotes omitted):
11Logic 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.
12The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) (30).

This does not, however, require the Authority to engage in any particular formulaic consideration of s 473DD(b) of the Migration Act. As Markovic J explained in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (APH17) at [79]:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
In considering whether new information is ‘credible’ personal information for the purposes of s 473DD(b)(ii) of the Migration Act, the Authority is required to assess whether the information is capable of being believed: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 (BTW17) at [75]; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41]. In BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75 at [43], O’Bryan J said:
The word “credible” does not impose a requirement that the information be believed by the Authority or that it be judged by the Authority to be more likely than not true. There is nothing in the content of the letter or the background circumstances of this case on which a conclusion could be reached that the letter was obviously incredible or inherently incapable of belief.
In BTW17, Mortimer and Jackson JJ, in explaining why the approach in CSR16 is correct, said at [76]:
Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
Reasoning of the Authority
The relevant reasoning of the Authority is at [5]-[12] of its reasons, where the Authority said:
5.The submission makes a number of new claims which centre on the applicant’s social media activity including, firstly, that his social media posts include photos of him enjoying alcoholic beverages which are prohibited in Iran and secondly, that the applicant posted political content on his Facebook page, including anti-Iranian regime posts. It is clear from the delegate’s decision and the applicant’s SHEV interview that the delegate looked at both of the applicant’s Facebook pages going back some years in considering the applicant’s claims to have converted to Christianity. However, there is no indication in his decision that he considered the written content of the three 2015 posts submitted to the IAA. This is not surprising given they are written in Farsi and the applicant had not previously made any claims regarding alcohol consumption or expressing his political opinion on Facebook or any fears he held about returning to Iran because of those things. On 30 November 2017 the applicant’s representative provided copies of four of the applicant’s posts on Facebook. English language translations were provided for three of the posts; the fourth comprises photos only – one of a flag and the other of the applicant with a large quantity of alcohol (the new Facebook material). I find all of the new Facebook material to be new information.
6.In accordance with s.473DD of the Act, I am not permitted to consider new information unless I’m satisfied that there are exceptional circumstances to justify my consideration of the new information and having regard to all the circumstances I am not so satisfied.
7.In relation to the alcohol consumption element of the new information, I accept that the photograph of the applicant which he posted on Facebook on 31 January 2016 shows him in front of an esky with a large quantity of alcohol. However, this does not assist me to understand what the applicant fears should he return to Iran and his representative’s assertion that alcohol is prohibited in Islam and especially in the Islamic Republic of Iran does not assist. The applicant has not previously made any claims related to alcohol consumption and in the absence of any explanation about the significance of the photo and how it relates to his claims for protection, I am not satisfied that exceptional circumstances exist to justify considering this new information.
8.The other Facebook material consists of a photograph of what is described as an old pre-revolution Iranian flag which is now regarded as anti-regime posted on 20 April 2015, and three text-based posts posted on 14 May 2015 (one post) and 21 May 2015 (two posts) best described as social commentary rather than directly political although I accept they could be perceived as having political undertones. All of these posts pre-date the delegate’s decision.
9.In relation to the claim that the applicant has posted socio/political content on his Facebook page, his representative submitted that while the delegate evidently thoroughly inspected the applicant’s Facebook page(s), no enquiries were made about those posts which were publicly available. As the applicant’s representative would be aware, it is the responsibility of applicants for protection visas to clearly articulate their claims for protection and provide information and evidence in support as early as possible. The applicant was informed of this by the delegate at the start of his protection interview and was also advised that if he did not provide all of his claims and evidence in support he may not have another chance to do so. The delegate also asked the applicant whether he had anything to add to his protection claims; the applicant provided some evidence about his claim to have converted to Christianity but otherwise stated there was nothing he wished to add or change from his written statement. During his SHEV interview, the applicant retracted one of his claims (to fear harm because he sold women’s shorts) and explicitly confirmed to the delegate that the only basis for his claims for protection was his conversion to Christianity. He did not raise any claims to have expressed politically sensitive views either while in Iran or after he came to Australia.
10.Having regard to all the circumstances, I am satisfied the applicant had ample opportunity in his application and in his SHEV interview to raise his claims to fear harm for posting anti-Iranian regime material on his Facebook pages. His representative submits that the applicant is not a sophisticated person and had not previously been advised of the significance of his claims and therefore had not raised them, that the posts date back to 2015 and cannot be deemed to have been used in any way to strengthen his claims as they were not even mentioned previously, and that they are a testament to the applicant’s genuine social and political views and he will not be able to keep those views concealed in Iran.
11.I have a great deal of difficulty accepting that the applicant would be unaware of the significance for his claims for protection of posting anti-Iranian regime material on his social media pages. The applicant repeatedly referred in his SHEV interview to the fear of information he provided in Australia getting back to the authorities in Iran and causing him problems and stated this was the primary reason he did not disclose his interest in Christianity when he first arrived in Australia. I have taken into consideration that the applicant had the assistance of a registered migration agent in making his SHEV application, albeit not the same person who now acts for him. In my view, if the applicant genuinely feared the implications of posting political/social content which may be perceived as opposing the Iranian regime on his Facebook page(s), he would have mentioned this before, either in his written statement or his SHEV interview, or to his former representative to be provided subsequently to the delegate. I find the most likely explanation for his failure to do so was because he did not hold any real fear about the Facebook material being known to anybody other than his friends on Facebook. Apart from his representative’s assertion that the posts are publicly available, there is no information before me about the applicant’s privacy settings on his Facebook page and whether anybody other than those he allows access to his Facebook page(s) would be able to view the Facebook material. The applicant has not claimed to have any kind of political profile in Iran and I consider it extremely unlikely that the Iranian authorities would be monitoring his Facebook page(s) for any reason.
12.Having regard to all the circumstances, I am not satisfied that exceptional circumstances exist to justify considering the new information.
Errors alleged by the applicant
The applicant alleged four errors in the Authority’s approach to new information and its task under s 473DD of the Migration Act. These have been addressed in different orders in the parties’ written submissions and oral submissions, but I will address them in the following order:
(a)the applicant alleges that the Authority’s categorisation of a photograph of a pre-Revolution Iranian flag on the applicant’s Facebook page was erroneous because that photograph was before the delegate;
(b)the applicant alleges that the Authority erred by considering the requirement in s 473DD(a) of the Migration Act before it considered and assessed whether the requirements of s 473DD(b) were met;
(c)the applicant alleges that the Authority failed to consider whether the requirement in s 473DD(b)(ii) was met in relation to the new information; and
(d)the applicant alleges that the Authority assessed the genuineness of new information at a preliminary stage of its review.
Was the photograph of a pre-Revolution Iranian flag new information?
The new information provided to the Authority included a screen shot purporting to be of the applicant’s Facebook page, which depicts a large image of a pre-Revolution Iranian flag, with words written on the flag in a language other than English above and to the left and right of the image in the centre of the flag.
The Facebook page as presented to the Authority does not appear in the collection of screenshots of the applicant’s Facebook page collected by the delegate. However, two of the three screenshots collected by the delegate contain a smaller image of the pre-Revolution Iranian flag in the ‘Photos’ section of the Facebook page screenshot.
In the submission to the Authority, the applicant’s representative explained the significance of the Facebook pages in the following way (emphasis added):
Another significant element that has not been considered in the decision by the delegate, is the political content on the Applicant’s Facebook page. This is understandable since the content is in the Persian/Farsi language and the delegate would not have understood the content. However, despite the fact that the delegate has evidently had a thorough inspection of the Applicant’s Facebook page, no enquiries were ever made about those particular posts which are also publicly available. By way of explanation, the content includes various Facebook posts, photos (one of the old pre-revolution Iranian flag which is now regarded as anti-regime and includes the annotations “God, King, Homeland”), as well as a number of anti-Iranian regime pages that the Applicant follows. The Applicant is not a sophisticated person and had not been advised of the significance of these claims therefore he had not previously raised them. The posts date back to 2015 and cannot be deemed to have been used in anyway, to strengthen his claims as they were not even mentioned previously. However, they are a testament to the Applicant’s genuine social and political views and we ask they be considered in the assessment of the Applicant’s claims. We submit that based on the Applicant’s personal traits and characteristics, there is every possibility that he will not be able to keep his open-mindedness, political and social opinion as well as his disbelief in Islam concealed in Iran and his behaviour cannot be modified under section 5J(3)(c)(iii) of the Act.
The applicant asserts that the Authority’s categorisation of a photograph of a pre-Revolution Iranian flag on the applicant’s social media as new information was erroneous because the photograph was before the delegate. Counsel for the applicant submitted that whether material is new information is a jurisdictional fact that can be determined by the Court.
Counsel for the Minister submitted that the information that was before the delegate was that a photograph of a flag had been posted to the profile page on the Facebook account in the name of an alias used by the applicant. Counsel for the Minister submitted that the picture itself is not information. The relevant information where the picture is resubmitted to the Authority is that a picture of a flag was posted as a profile picture, on a particular date, and that it has been liked six times.
In my view, the image of the pre-Revolution Iranian flag on the applicant’s Facebook page, in the context in which it was presented to the Authority, was new information. That context includes, as Counsel for the Minister submitted, that the image was included in the ‘Profile Pictures’ of the applicant’s Facebook page on a date in April 2015 and that there were six ‘likes’ in response to that picture. The context also includes the information provided with the submission to the Authority, which includes identification of the image as the pre-Revolution Iranian flag, that the pre-Revolution Iranian flag is now considered to be anti-regime and that the three words depicted on the flag in a language other than English are words that mean ‘God, King, Homeland’. The way in which the image was presented to the Authority contains context which was lacking from the much smaller depictions of the flag on the applicant’s Facebook pages that were in the review materials provided to the Authority under s 473CB of the Migration Act.
On a fair reading of the Authority’s reasons, the Authority did not, in assessing whether new information met the requirements of s 473DD of the Migration Act, find that the image of the pre-Revolution flag, devoid of any context, was new information. Rather, the Authority identified at [5] that the new information was the ‘applicant’s posts on Facebook’, the fourth of which ‘comprises photos only’, one of which was a flag. At [8] it described that part of the Facebook material consisted of ‘a photograph of what is described as an old pre-revolution Iranian flag which is now regarded as anti-regime posted on … April 2015’. It is therefore reasonably apparent that the new information the Authority identified and considered against the requirements of s 473DD was information of the applicant’s Facebook pages, which included a post of the image of the pre-Revolution Iranian flag, in conjunction with the explanation of that image offered in the applicant’s submissions to the Authority. The Authority did not err in treating this as new information.
Did the Authority make a jurisdictional error by considering s 473DD(a) of the Migration Act before it considered s 473DD(b)?
The applicant submitted that the Authority assessed the requirements of s 473DD of the Migration Act in the wrong sequence, by expressing the conclusion at [6] of its reasons that it was not satisfied that exceptional circumstances existed to justify considering the new information before assessing whether the requirements of s 473DD(b) were met.
Counsel for the Minister submitted that the Authority’s expression at [6] of its reasons is a statement of conclusion and the paragraphs that follow are the reasons for reaching that conclusion, which include consideration of the matters in s 473DD(b). Simply because the Authority commenced its discussion with a statement of conclusion does not mean that the Authority did not consider s 473DD(b) before it considered s 473DD(a). Counsel for the Minister submitted that, after setting out the reasons for reaching its conclusion at [7]-[11] of its reasons, the Authority ‘book-ended’ its discussion by repeating its conclusion at [12] and stating that, having regard to all of the circumstances, it is not satisfied that exceptional circumstances exist.
I do not consider that the Authority’s expression, at [6] of its reasons, of its conclusion on s 473DD(a) of the Migration Act that it was not satisfied that any exceptional circumstances existed to justify considering the new information, before giving any reasons for the conclusion, indicates that the Authority reached a conclusion in relation to s 473DD(a) before considering or purporting to consider s 473DD(b). On a fair reading of the Authority’s reasons, it is apparent that the reasons for the conclusion at [6] are expressed in the subsequent paragraphs. I accept the Minister’s submission that the Authority’s reasons for its finding that there were no exceptional circumstances are set out in [7]-[11] of its reasons before the conclusion is expressed again at [12].
The observations of the High Court in AUS17 about the order in which the Authority should assess the requirements of s 473DD relate to the order in which the Authority must assess or consider the requirements, not the order in which the requirements are to be addressed in written reasons. The Authority’s expression of a conclusion, followed by reasons for that conclusion, followed by a further expression of a conclusion show the preferred structure of written reasons adopted by the Authority and not the order in which it considered the relevant matters.
I do not accept that the Authority formed a conclusion in relation to s 473DD(a) before considering or purporting to consider the matters referred to in s 473DD(b) of the Migration Act.
Did the Authority fail to consider s 473DD(b)(ii) of the Migration Act?
The parties in their submissions addressed whether the Authority considered the requirements of s 473DD(b)(ii) of the Migration Act in respect of the applicant’s Facebook posts containing the images of the pre-Revolution Iranian flag and the applicant surrounded by a large quantity of alcohol as well as the written socio-political content.
In addressing whether the Authority considered whether these items of new information met the requirements of s 473DD(b)(ii), it is important to remember that a referred applicant must satisfy the Authority of three cumulative requirements (see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Plaintiff M174) at [34]):
(a)the new information is credible information about an identified individual or an individual who is readily identifiable;
(b)the new information was not previously known by either the Minister or the referred applicant; and
(c)the new information, had it been known by either the Minister or the referred applicant, might have affected the consideration of the referred applicant’s claims.

In relation to the photograph depicting the applicant with alcohol, there is a dispute between the parties as to whether the Authority’s acceptance at [7] that ‘the photograph of the applicant which he posted on Facebook on … 2016 shows him in front of an esky with a large quantity of alcohol’ amounts to an acceptance that the new information was ‘credible personal information’. The applicant’s position is that this is simply a description of the picture, whereas the Minister submits that it amounts to a finding that the new information in the photograph is credible personal information.
While I appreciate the applicant’s position, and observe that in many cases a description of new information will not amount to a finding that the new information is credible personal information, in the context of the present case, I accept that the Authority’s acceptance as described at [7] of its reasons amounts to an implicit finding that the new information was credible personal information. The new information was that the applicant had posted on his Facebook page a photograph that depicted him surrounded by alcohol. The Authority’s acceptance that the photograph depicted what the applicant said it did and that it was posted to his Facebook page shows that the Authority considered the information to be credible. While the Authority did not expressly identify the information as ‘personal information’, it cannot reasonably be seen as anything other than personal information.
This finding that the Authority accepted the new information was credible personal information is not enough to show that the Authority considered the requirements of s 473DD(b)(ii), as acceptance of only one of the three requirements of that sub-paragraph is not sufficient to show that all requirements of the sub-paragraph have been met.
In the circumstances of this case, it is implicit in the identification of the information as new information that it was not known to the delegate prior to the s 65 decision.
The question then is whether the Authority has considered whether the information, had it been known, may have affected the consideration of the applicant’s claims for protection. The Authority made observations at [7] of its reasons that are relevant to this assessment, including that the new information ‘does not assist [the Authority] to understand what the applicant fears should he return to Iran’ and that there was an ‘absence of any explanation about the significance of the photo and how it relates to [the applicant’s] claims for protection’. These factors were, on the face of the Authority’s reasons, given as reasons for finding that there were not exceptional circumstances for the purposes of s 473DD(a) of the Migration Act. However, I accept the Minister’s submission that it is implicit in these observations that the Authority was not satisfied that, had the information been known earlier, it may have affected consideration of the applicant’s claims. Although the Authority did not use words that reflect the language of s 473DD(b)(ii) of the Migration Act, the Authority’s observations that the information provided did not assist it to understand what the applicant fears upon return to Iran and regarding the lack of explanation of the significance of the information to the applicant’s claims can meaningfully be understood as amounting to an implicit finding that the applicant had not satisfied the Authority that the information, if known, may have affected the consideration of his claims.
I then turn to the post of the photograph of the pre-Revolution Iranian flag and the socio‑political content.
The Authority’s failure to use wording that reflects the terms of s 473DD(b)(ii) of the Migration Act makes it very difficult to assess whether its reasons, particularly at [8]-[11], reflect that it considered this sub-paragraph. A further difficulty is that the content of the new information being addressed has a slightly different focus in each of those paragraphs.
The Authority identified the Facebook posts were new information at [5] and [8] of its reasons. At [5] it also identified that the applicant, in his submission to the Authority, made ‘new claims’ which centre on his social media activity. While the parties drew no distinction in their submissions between the Authority’s consideration of whether the Facebook posts and the new claim met the requirements of s 473DD, the applicant’s submissions appeared to me to be more focused on the Facebook posts, whereas the portions of the Authority’s reasons relied on by the Minister appear to me to be more directed to the credibility of the new claim.
The applicant submitted that, while the Authority accepted that the applicant’s Facebook posts ‘could be perceived as having political undertones’, it did not address whether the new information comprised credible personal information that might be capable of being believed.
The Minister’s submissions focused on [11] of the Authority’s reasons. The Minister submitted, at [22] of his written submissions (footnotes omitted):
With respect to s 473DD(b)(ii), it is abundantly clear from the Authority’s findings at [11] of its reasons — that the Applicant “did not hold any real fear about the Facebook material being known to anybody other than his friends on Facebook” and, further, that it was “extremely unlikely that the Iranian authorities would be monitoring his Facebook page(s) for any reason” — that it did not consider the socio/political content to be “credible” personal information that, if known, might have affected the consideration of the Applicant’s claims. True it is, as the Applicant submits in reliance on CSR16, that at this stage of the review the Authority was only required to consider whether the information was “credible” in the sense of being “capable of being believed”. However, as the Full Court of the Federal Court has previously held, a finding by the Authority that information is not in fact believed can be understood as a finding that the information was “not capable of being believed”. Thus, in ABH18 v Minister for Home Affairs [[2020] FCA 620], for example, Charlesworth J held that the Authority’s substantive conclusion that certain claimed events had not happened was to be understood as involving a finding that information about those events was not “credible” for the purposes of s 473DD(b)(ii). The same reasoning applies here.
The focus on credibility in this paragraph, which also addresses a further error raised by the applicant and which is considered below, suggests that the Minister has viewed [11] of the Authority’s reasons as a finding that the new information is not credible.
I accept both parties’ submissions to a point. The description of the new information at [8] of the Authority’s reasons suggests that the new information it was considering was the Facebook posts that contain the pre-Revolution Iranian flag and the text-based posts. I accept the applicant’s submission that the Authority did not consider anywhere in its reasons whether the Facebook posts themselves (or in the information in them as a reflection of the applicant’s views) were ‘credible personal information’. From at least [10] of its reasons, the Authority’s focus shifted to the applicant’s ‘claims to fear harm for posting anti-Iranian regime material on his Facebook pages’. I accept the Minister’s submission that the Authority made findings in relation to credibility of new information at [11]. In my view, these findings at [11] are directed to whether the claim to fear harm on account of the Facebook posts was credible, rather than whether the Facebook posts were credible.
In the absence of further submissions from the parties as to whether the Authority separately needed to consider the Facebook posts, or whether the Authority’s findings at [11] might demonstrate that, irrespective of whether the Facebook posts themselves were credible personal information, it was not satisfied that it was new information that could have affected the consideration of the applicant’s claims, it is undesirable to express any view as to whether the Authority’s approach demonstrates error. Further, it is unnecessary to do so because I am satisfied that [11] of the Authority’s reasons reflects a different error, which I now address.
Did the Authority assess the genuineness of the new information at a preliminary stage of the review?
The applicant submitted that the Authority considered the genuineness of the new claims at a preliminary stage of the review, when that was a question for the Authority to consider as part of the deliberative process of the review. The applicant submitted that the Authority’s reasoning that ‘if the applicant genuinely fears the implications of posting political/social contact which may be perceived as opposing the Iranian regime on his Facebook pages, he would have mentioned this before’ was akin to the error in CSR16 where the Authority said, ‘I am not satisfied that the applicant does have a genuine fear of this kind and I am therefore not satisfied that it is credible personal information’.
The applicant submitted that the Authority considered whether the new claims were genuine, rather than capable of being believed, at an anterior stage of the review and impermissibly drew conclusions about the applicant’s truthfulness on the basis of material that was, as a matter of law, not before it. In oral submissions, Counsel for the applicant submitted that the Authority’s focus on ‘likelihood’ in finding that the ‘most likely explanation’ for the applicant failing to raise claims based on the content of his Facebook stage at an earlier stage shows the Authority overreaching and delving into a substantive credibility assessment at an anterior stage of the review. Counsel for the applicant submitted that the word ‘credible’ in s 473DD(b)(ii) is a filter to exclude only information that is obviously incredible or inherently incapable of belief.
In addition to the submission extracted at [55] above, Counsel for the Minister submitted that the Authority’s acceptance that the photograph of the applicant posted on 31 January 2016 shows him in front of an esky with a large quantity of alcohol amounts to as assessment of the credibility of the information – in that the Authority believes the information.
Counsel for the Minister accepted that the Authority went further than required, in accepting that there was a Facebook page showing the applicant with a large quantity of alcohol and in not believing that the applicant feared harm from posting socio-political content. The Minister submitted that this is not a problem in the present case because the Authority did not rely on any of its assessment of credibility at the anterior stage in the substantive review.
To the extent that the Authority’s acceptance that the information on the applicant’s Facebook page depicting him surrounded by a large quantity of alcohol amounts to a finding that the information was true rather than capable of being believed, it does not give rise to any jurisdictional error. The finding was favourable to the applicant and information that is accepted by the Authority as true is inherently capable of belief.
I do, however, accept the applicant’s submission that the Authority made substantive findings at an anterior stage of its review at [11] of its reasons. In this paragraph, the Authority:
(a)expressed the view that if the applicant genuinely feared the implications of posting political or social content which may be perceived as anti-regime on his Facebook page, he would have mentioned this before;
(b)considered that the ‘most likely explanation’ for his failure to do so was because he did not hold any real fear about the Facebook material being known to anybody other than his friends on Facebook;
(c)noted the lack of information before it about the applicant’s privacy settings on Facebook and whether anybody other than those to whom he allows access would be able to view the Facebook material, aside from the applicant’s representative’s assertion that the posts were publicly available;
(d)noted that the applicant had not claimed to have any kind of political profile in Iran; and
(e)considered it extremely unlikely that the Iranian authorities would be monitoring the applicant’s Facebook page for any reason.
In my view, the reasoning of the Authority shows that the Authority considered that the applicant did not have a genuine fear of harm on account of his social media activity and the socio-political content that he posted. The Authority transgressed beyond deciding whether the new information, being the applicant’s claim to fear harm on account of his social media activity, was capable of being believed and decided that it did not believe it. I accept the applicant’s submission that the Authority’s finding is akin to that considered by Bromberg J in CSR16, where the Authority was found to be in error in finding that a new claim was not credible information because the Authority was not satisfied that the applicant had a genuine fear of the kind claimed.
I consider whether this error was material later in this judgment.
Additional issue raised in oral submissions
In his oral submissions, Counsel for the applicant made an additional submission to the effect that, by focusing on the applicant raising the new claims at a late stage of the review, the Authority failed to treat s 473DD(b)(ii) as an ‘alternative’ limb to s 473DD(b)(i). This submission was based on the judgment of Murphy J in BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 (BTA18), where his Honour said at [144]-[145]:
144.In the present case the Authority treated BTA18’s failure to disclose the new claims to the delegate - which is the focus of s 473DD(b)(i) - as decisive in relation to its consideration under s 473DD(b)(ii). In its assessment of the credibility of the new information under s 473DD(b)(ii) it repeatedly circled back to the late provision of the new information, rather than undertaking a broader evaluation of its credibility. There is nothing to show that the Authority gave consideration to the substance of the new information so as to decide whether it was “capable of being believed”; rather, it decided the new information was not credible because “the new claims are raised so late despite the previous opportunities.” Nor did the Authority say anything to indicate that it had made any assessment of whether the new information was “obviously incredible or inherently incapable of belief”: see BOS17 v Minister for Immigration and Border Protection [2020] FCA 75; 170 ALD 1 at [43] (O’Bryan J). Instead, on a fair reading, the Authority focused almost entirely on the lateness of its provision.
145.The Authority thereby misunderstood its statutory task under s 473DD(b)(ii), and the primary judge erred in failing to so find.
The Minister submitted that BTA18 is distinguishable from the present case because the Authority here did not rely solely on the late raising of the claims and also considered factors such as the lack of information about privacy settings on the applicant’s Facebook page and whether anyone other than he and those he allows access to would review the pages, as well as his failure to claim any sort of political profile in Iran.
Given that the relevant reasoning and findings overlap with the reasoning that I have found above was affected by error, it is not necessary to separately address this assertion of error.
GROUND 2
By ground 2, the applicant asserts that the Authority acted unreasonably in failing to exercise, or consider exercising, its discretion in s 473DC of the Migration Act to obtain the 2018 DFAT report on Iran, which was published on 7 June 2018, approximately one month before the Authority made its decision on 5 July 2018.
Section 473DC of the Migration Act provides:
(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.
The Authority must exercise the discretion in s 473DC reasonably: Plaintiff M174 at [21], [86]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3], [61], [80].
The applicant submitted that, given the Authority cited the 2016 DFAT report throughout its decision and referred to it at [42] as ‘DFAT’s more recent 2016 report’, it is improbable that the Authority did consider whether to obtain the 2018 report and then decided not to.
The applicant submitted that it was unreasonable for the Authority not to have considered getting, or to have obtained, the 2018 DFAT report. The applicant submitted that the Authority’s task was premised on it having regard to the most current version of the DFAT country information report. The Authority was required to predict what may happen to the applicant in the future. The applicant submitted that it is not merely preferable but is a ‘core aspect’ of the lawful formation of a state of satisfaction for a decision-maker to make their assessment based on the most recent information available: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [73].
In advancing this ground, the applicant relied on Judge Driver’s judgment in BDI17 v Minister for Immigration (2018) 339 FLR 147; [2018] FCCA 2162 (BDI17). In that case, a new DFAT country information report on Sri Lanka, the applicant’s receiving country, was published on 24 January 2017 and the Authority made a decision on 20 February 2017. Judge Driver referred to the obligation on the delegate, arising under Ministerial Direction No 56 and s 499 of the Migration Act, to take into account country information prepared by DFAT where relevant. His Honour continued at [70]-[72] (footnotes omitted):
70.… The Authority operates under a different statutory regime and is not so bound. It would, however, be absurd if the Authority were given a statutory licence to ignore material that would have to be considered by other decision makers at the direction of the Minister. At the very least, the Authority should consider getting any updated DFAT report on the country of reference where it is reasonably practicable to do so. The question is, however, whether it was a jurisdictional error for the Authority to fail to do so in this case.
71.In Part 7AA of the Migration Act, the Authority conducts a de novo review of the delegate’s decision in relation to fast track reviewable decision. The delegate “must” have had regard to the current DFAT report and, on conducting the de novo review, the applicant submits it was intended by the legislature that the Authority would do the same. In circumstances where the Secretary is not obliged to give to the Authority documents considered relevant to the review after the referral is made, and the legislature intended that evidence of changed conditions in a visa applicant’s country of origin would be taken into account, it is hard to justify the Authority not exercising its discretion in s.473DC(1) to get “new information” in the form of updated country information in a new DFAT report. This is reflected in the fact that the “new information” to be considered in accordance with the provisions of Division 3 of Part 7AA is not, as is the case with the Tribunal under s.424, only information that it “considers relevant” but, rather, information that the Authority considers “may be relevant”.
72.In the present case, I find that the Authority did not consider getting a copy of the 2017 DFAT report although it had almost a month to do so prior to its decision and its failure to do so lacked any evident and intelligible justification. The 2017 DFAT report updated the 2015 DFAT report, to which the delegate was obliged to have regard, which formed part of the review material and was relied upon extensively in and throughout the Authority’s reasons. The Authority’s failure to consider exercising its discretion to get the 2017 DFAT report was legally unreasonable.

The applicant submitted that the Court should make a similar finding in the present case.
In defending this ground, the Minister relied on the judgment of Markovic J in APH17 at [58]‑[60], where her Honour said:
58.… [T]here is nothing in the Act that requires the Authority to give reasons for the exercise or non-exercise of its discretionary powers under Pt 7AA of the Act. That the Authority did not mention, in this case, the discretion conferred by s 473DC of the Act does not support the drawing of an inference that the exercise of the discretion was not considered by it: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].
59.Thus I would not infer that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report simply because of the lack of a reference to undertaking that assessment in its decision record. There is nothing to suggest that such an inference should be drawn. For example, there is no evidence that the Authority was aware that the 2017 Report had been published. The appellant accepts that the Authority did not have constructive knowledge of its existence at the time it made its decision. It is equally open to infer, based on the facts of this case, that the Authority did turn its mind to whether there was a more up-to-date DFAT report available but it did so prior to the publication of the 2017 Report, which occurred only six days prior to the date of the Authority’s decision. This demonstrates the danger in drawing the inference urged by the appellant.
60.Putting that to one side, even assuming that the Authority failed to consider the exercise of the discretion under s 473DC to get the 2017 Report, it was not legally unreasonable for it not to do so in this case. As set out above, what is reasonable must be considered in the context of the statutory scheme. The exercise of discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority does not have a duty, among other things, to get or request new information: see CCQ17 [v Minister for Immigration and Border Protection [2018] FCA 1641] at [32]. As Thawley J further observed in CCQ17 at [48], the statutory scheme contemplated by Pt 7AA is one of limited review on the papers with a default position of not accepting or requesting new information pursuant to s 473DB(1). In that context, any failure to consider the exercise of the discretion under s 473DC could not be seen as unreasonable: see [Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24] at 45; SZJTQ [v Minister for Immigration and Citizenship (2008) 172 FCR 563] at [40]. That is particularly so in circumstances where there is no evidence that the Authority had actual knowledge of the 2017 Report and it is accepted by the appellant that the Authority did not have constructive knowledge of its existence at the time it made its decision.
In seeking to distinguish APH17, Counsel for the applicant submitted that in the present case, unlike in APH17, there is evidence that the Authority knew that the DFAT report had been published. That evidence comprises of emails that the applicant’s lawyer obtained pursuant to an FOI request and which were annexed to the affidavit of Mr Baghi filed on 1 November 2023. An email was sent to a recipient who appears in the ‘To’ line of the email as ‘AAT – MR Division – IAA’ on 7 June 2018 annexing a copy of the 2018 DFAT report. A further email was sent on 13 June 2018 to a recipient described in the ‘To’ line of the email as ‘AAT – MR Division – IAA – Reviewers Team’, which annexed a copy of the 2018 DFAT report including marked up changes from the previous report. The email forwarded an earlier email noting that there was new information in the 2018 DFAT report in relation to corruption, health, education, National Human Rights Institution, Baluch, Faili Kurds, Sunni Muslims, Christians, Jews and Zoroastrians, Yarsanis, honour killings, female genital mutilation, same sex crimes and prison conditions.
There are a number of issues that need to be considered in addressing this ground.
First, I consider whether it can be inferred that the Authority reviewer was aware of the existence of the 2018 DFAT report. This issue is relevant having regard to the parties’ submissions in relation to APH17.
I accept Counsel for the Minister’s submission that the evidence before the Court does not show on its face that the individual reviewer received the report because there is no evidence that the reviewer is part of the email group to which the report was sent or that the reviewer even opened the email. Nevertheless, the documents annexed to Mr Baghi’s affidavit allow an inference to be drawn that the reviewer was aware of the existence of the 2018 DFAT report. The report was sent twice, the first time approximately four weeks before the Authority decision and the second time approximately three weeks before the Authority decision, to an email group that, at least by its name, purports to include Authority reviewers. It is reasonable to infer that the Authority reviewer received either or both of these emails and I find, on the balance of probabilities, that the reviewer was aware of the existence of the 2018 DFAT report.
Second, I consider whether I am able to ascertain from the information before me whether the reviewer considered exercising the discretion in s 473DC of the Migration Act to obtain a copy of the DFAT report for the purposes of the review.
The Authority is not obliged to give reasons for the exercise or non-exercise of its procedural discretions: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16], [40]. I am therefore unable to form any view as to whether the Authority considered the exercise of its discretion in s 473DC simply from the omission of anything in its reasons to suggest that it considered whether it should exercise its discretion to obtain the 2018 DFAT report. The Authority’s references to the 2016 DFAT report throughout its reasons do not indicate one way or the other whether the Authority considered the possible exercise of its discretion to get the 2018 DFAT report.
That, however, is not determinative of this ground. That is because, in my view, if the Authority, having notice of the existence of the 2018 DFAT report, failed to consider whether to exercise its discretion in s 473DC of the Migration Act to get a copy of the report for the purpose of the review, that failure was unreasonable. Alternatively, if the Authority did consider the exercise of its discretion and decided not to obtain a copy of the 2018 DFAT report, that decision was also unreasonable.
I acknowledge that, unlike the delegate, the Authority was not bound to have regard to the most up-to-date country information published by DFAT. That is because Ministerial Direction No 56, which was in effect at the time of the Authority decision, does not apply to reviews conducted by the Authority. I also acknowledge that, pursuant to s 473DC(2), the Authority was not obliged to consider the exercise of its discretion to get new information. Nevertheless, basing decisions on up-to-date country information is important in the consideration of claims for protection. The country reports published by DFAT are published for the purpose of assisting in the consideration of claims for protection. A period of nine months had passed since the delegate’s decision and it had been over two years since the 2016 DFAT report had been published. In these circumstances, and where the Authority had knowledge that a new report had been published a month before its decision, it was unreasonable for the Authority not to consider whether to get new information that may be relevant to its review, being a copy of the 2018 DFAT report.
If the Authority did consider the exercise of the discretion and decided not to get a copy of the 2018 DFAT report, that also would have been unreasonable taking into account the claims for protection raised by the applicant and the differences in the information in the 2016 and 2018 DFAT reports that may have been relevant to those claims.
The applicant claimed to fear harm on the basis of his conversion to Christianity and also for abandoning Islam.
Counsel for the applicant highlighted differences in the 2016 and 2018 DFAT reports in relation to the risk of harm from apostasy.
In the 2016 report, DFAT stated:
3.52Under Iranian law, a Muslim who leaves his or her faith or converts to another religion or atheism can be charged with apostasy. While cases of apostasy are rare, Muslim-born converts to Christianity, Baha’is, Muslims who challenge the prevailing interpretation of Islam, and others who espouse unconventional religious beliefs have been charged with apostasy in the past. …
3.53 … In the rare instances that they are applied, charges of apostasy have in the past resulted in the death penalty and are often combined along with other crimes related to national security such as waging war against God and the Prophet.
3.54The most recent case that DFAT is aware of a person charged with apostasy and sentenced to death was that of Youcef Nadarkhani in 2011. As a result of sustained international pressure, Nadarkhani’s conviction of apostasy was commuted to one of proselytization and the death sentence was dropped. The last known time the death penalty was carried out for apostasy was in 1990.
3.55DFAT considers it unlikely that individuals will be prosecuted on charges of apostasy. DFAT also considers it highly unlikely that the government would monitor religious observance by Iranians – for example, whether or not a person regularly attends mosque or participates in religious occasions such as Ashura or Muharram – and thus it would generally be unlikely that it would become known that a person was no longer faithful to Shia Islam. Perceived apostates are only likely to come to the attention of Iranian authorities through public manifestations of their new faith, attempts at proselytization, attendance at a house church or via informants…
In the 2018 DFAT report, DFAT said in relation to religiously-based charges:
3.41Under Iranian law, a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. …
3.42Politically motivated apostasy charges were frequent in the years following the Iranian revolution, often leading to death sentences. In the vast majority of cases, however, defendants charged with apostasy also faced a litany of other charges related to national security. Many of these cases were quickly tried, ending in execution, so apostasy was not fully discussed in the prosecution of these defendants.
3.43While apostasy and blasphemy cases are no longer an everyday occurrence in Iran, authorities continue to use religiously-based charges (such as ‘insulting Islam’) against a diverse group of individuals. In recent years, the group has included Shi’a members of the reform movement, Muslim-born converts to Christianity, Baha’i, Muslims who challenge the prevailing interpretation of Islam (particularly Sufis), and others who espouse unconventional religious beliefs (including members of recognised religious groups). Some religiously-based cases have clear political overtones, while other cases do seem to be primarily of a religious nature, particularly when connected to proselytisation.
3.44Death sentences in apostasy and blasphemy cases are now rare. However, in March 2017 the Supreme Court upheld the decision of a criminal court in Arak to sentence a 21 year old man to death for apostasy. Authorities had arrested the man after he made social media posts considered critical of Islam and the Koran while on military service in October 2015. … The death sentence had not been carried out as of March 2018. The court also convicted two co-defendants of posting anti-Islamic material on social media, sentencing them to prison.
3.45DFAT assesses that those accused of religiously-based charges are also likely to face charges related to national security. They are unlikely to have adequate legal defence, and are likely to be convicted.
Counsel for the applicant also referred to the penultimate sentence of [3.18] of the 2018 report, where DFAT noted that the Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security monitor religious activity. In that paragraph, DFAT said (emphasis added):
Iran is a theocracy that, with the possible exception of The Holy See, mixes religion and state more completely than any other country in the world. Article 4 of the Constitution requires that all of the country’s laws and regulations be based on (Shi’a) Islamic principles. In practice, government policy and legislation heavily favours the majority Shi’a population, leading to pervasive structural discrimination against non-Shi’a Muslims and religious minorities. The Ministry of Culture and Islamic Guidance, and the Ministry of Intelligence and Security (MOIS) monitor religious activity. The IRGC [Islamic Revolutionary Guard Corps] also monitors churches.
The Authority addressed the risk of harm to the applicant from his lack of observance of Islam at [37]-[39] of its reasons, where it said (footnote omitted):
37.… The applicant’s representative submitted to the IAA that whether or not it is deemed that the applicant has converted to Christianity, he specifically stated in his SHEV interview that he stopped believing in Islam when he reached maturity and renouncing Islam can be a cause of real harm; the applicant may be charged with apostasy which is a capital offence. I accept that the applicant does not believe in or practice Islam and I note his SHEV statement refers to his fear of being imprisoned for abandoning Islam. However, he has not specifically claimed to have renounced Islam, to have expressed views on religion or to have done anything to attract the attention of the authorities in Iran.
38.DFAT considers it highly unlikely the government of Iran monitors religious observance, for example, whether a person regularly attends mosque or participates in religious observance, and it is therefore unlikely that it would become known that a person was no longer faithful to Shia Islam. Even if the applicant does not openly practice Islam, his evidence during his SHEV interview was that his father didn’t either and he has not claimed that either he or his father have experienced any issues because they are perceived to no longer support Islam. I am satisfied that if the applicant had not been attending mosque or failed to observe or participate in other aspects of Islamic religious practice or that if he failed to do so on return to Iran this would not come to the attention of the authorities.
39.There is nothing in the material before me that I am permitted to consider to indicate that the applicant has expressed dissatisfaction with Islam in any way either in Iran or Australia and I am satisfied that he would not seek to publicly express views on religion that would attract the adverse interest of the Iranian authorities.
In its complementary protection assessment, the Authority said (footnote omitted):
47.I do not accept the applicant has genuinely converted to Christianity. I accept that he has attended church, was baptised in Australia and has posted some Christian-themed material on Facebook. However, the applicant has not claimed, and there is nothing in the material before me to indicate, that the Iranian authorities are aware of his church attendance and baptism. He is not a person of interest to the Iranian authorities and I consider there is no more than a remote chance that the authorities would be monitoring his Facebook account and become aware of the Christian-themed posts and by implication, his involvement with Christianity in Australia. While I accept that he did not believe in Islam by the time he left Iran, I am satisfied he did not express any interest in Christianity before he left Iran. I have found above that the applicant has no real interest in Christianity and I find he will not practise Christianity, identify or be identified as Christian in Iran or disclose that he was baptised in Australia. I am not satisfied the applicant will face a real risk of significant harm in Iran from the Iranian authorities as a result of his involvement with Christianity in Australia.
48.In reaching this conclusion I have taken into consideration his representative’s submission that renouncing Islam can be a cause for real harm and that under Iranian Sharia law a Muslim who leaves his or her faith or converts to another religion can be charged with apostasy. I accept that under Iranian law, a person who leaves his or her faith or converts to another religion including Christianity (or atheism) can be charged with apostasy. However, I have not accepted that the applicant has genuinely converted to Christianity and as I have found he will not practise Christianity, identify all be identified as Christian in Iran or disclose that he was baptised in Australia I am satisfied he is not at any real risk of significant harm on account of his church attendance and baptism in Australia if he were to return to Iran.
The information in the 2016 and 2018 DFAT reports in relation to prosecutions for apostasy and whether religious activity is monitored is different. If the Authority considered whether to get the 2018 DFAT report for the purposes of the review, it was unreasonable for it not to actually get the report in circumstances where it instead relied on older information which may not be as up-to-date as the information in the 2018 DFAT report and where there were material differences in the information in the two reports.
I accept that the Authority acted unreasonably in either failing to exercise, or to consider the exercise of, its discretion in s 473DC of the Migration Act to obtain a copy of the 2018 DFAT report.
MATERIALITY
The errors that I have found the Authority made in this matter will only amount to jurisdictional error if there is a realistic possibility that the Authority decision could have been different had the errors not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [7].
I am satisfied that the errors made by the Authority in the present case are material.
It is convenient to first address the materiality of the Authority’s unreasonable failure to exercise, or consider the exercise of, its discretion in s 473DC of the Migration Act to get a copy of the 2018 DFAT report. The materiality of the error arises from the different content of the 2016 and 2018 DFAT reports and the reasoning of the Authority. This is most apparent from the Authority’s finding that the applicant would not come to the attention of the authorities in Iran for no longer adhering to Islam because of country information that suggested that the authorities in Iran do not monitor religious observance. The Authority relied on country information from the 2016 DFAT report in making this finding, whereas the 2018 DFAT report suggests that religious activity is monitored. While it would be a matter for the Authority to consider what weight ought to be given to the 2018 DFAT report, had it considered it, and what that would mean to the risk of harm faced by the applicant, I cannot exclude the realistic possibility that the Authority decision could have been different taking into account the updated information in the 2018 DFAT report.
In relation to the Authority’s consideration of the new information about the socio-political content on the applicant’s Facebook page, and his claims to fear harm because of the information on his Facebook page, if the Authority had considered only whether the new information was ‘capable of being believed’, rather than whether it did believe it, there is a realistic possibility that it may have found that the information was credible personal information and I cannot discount the realistic possibility that it could have found that the requirements of s 473DD(b)(ii) were met in relation to the new information. Had it made such a finding and taken it into account in assessing whether there were exceptional circumstances for the purposes of s 473DD(a), there is also realistic possibility that it could have found that there were exceptional circumstances and had regard to the new information.

There were three main issues raised in the parties’ submissions in relation to whether the Authority’s error in its approach to s 473DD was material to its decision on the substantive review.
The first relates to the Authority’s reference at [39] of its reasons, extracted at [92] above, that there was nothing in the material before it that it was permitted to consider to indicate that the applicant expressed dissatisfaction with Islam in any way in Australia or Iran. Counsel for the applicant suggested that this was a reference to material that it had excluded as not meeting the requirements of s 473DD, whereas Counsel for the Minister submitted that it was a reference to the applicant’s conduct in Australia that it disregarded pursuant to s 5J(6) of the Migration Act.
In my view, there is a realistic possibility that, had the Authority found that the requirements of s 473DD were met in respect of the socio-political content on the applicant’s Facebook page, it could have found that there was evidence that the applicant had expressed dissatisfaction with Islam while in Australia.
The second issue relates to whether the Authority took into account its adverse credibility finding, purportedly made at the anterior stage, in its assessment of the applicant’s credibility on the substantive review. The applicant submitted that the Authority therefore impermissibly drew conclusions about his truthfulness on the basis of material that was, as a matter of law, not before it. The Minister submitted that the Authority at no point drew conclusions about the applicant’s truthfulness on the basis of material that was not before it and rather drew conclusions about the applicant’s truthfulness on the basis of the material that was before it. The Minister in his written submissions cited [2] and [72] of BTW17. In my view, this is a different issue to that raised by the applicant, which is directed to the reasoning in BTW17 at [76], extracted at [29] above. The Authority made adverse credibility findings in relation to the applicant as part of its substantive review, particularly in relation to his claimed conversion to Christianity. The assessment of credibility is not necessarily linear: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189 at [101]. In the circumstances of this particular case, I cannot exclude the realistic possibility that the Authority’s views in relation to credibility expressed at the anterior stage of its review, particularly at [11] of its reasons, influenced the Authority’s assessment of the applicant’s credibility at the substantive stage of its review. I therefore cannot realistically exclude the possibility that the Authority took into account, in assessing the applicant’s credibility, material that was not technically before it because it had not yet passed through the s 473DD filter.
Finally, the Minister submitted that, had the Authority found that the requirements of s 473DD were met in relation to the new information, the applicant would have been entitled to have that information taken into account in the substantive claims and, in finding that the information was not believed, rather than incapable of belief, the Authority essentially did that. In other words, the Authority has effectively indicated how it would have treated the new information in the assessment of the applicant’s claims.
There is some merit in that argument if the Authority’s findings at [8]-[11] could be segregated from the balance of the review. However, as indicated above, I cannot exclude the realistic possibility that the Authority’s error could have impacted on the assessment of other claims raised by the applicant or the Authority’s assessment of his credibility.
I therefore find that the Authority’s error was material.
CONCLUSION
In circumstances where I have found that the Authority made jurisdictional errors in reaching its decision, I will issue a writ of certiorari to quash the Authority’s decision and a writ of mandamus to require the Authority to make a new decision according to law.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 23 August 2024

File number:	MLG 2232 of 2018
Judgment of:	JUDGE LADHAMS
Date of judgment:	23 August 2024
Catchwords:	MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) in assessing new information – whether the Authority acted unreasonably in failing to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to obtain new country information – jurisdictional error established – writs issued.
Legislation:	Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 473CB, 473DC, 473DD, 476, 477, 499
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 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 BDI17 v Minister for Immigration (2018) 339 FLR 147; [2018] FCCA 2162 BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189 BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75 BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Division:	Division 2 General Federal Law
Number of paragraphs:	107
Date of hearing:	9 November 2023
Place:	Perth (via Microsoft Teams)
Counsel for the Applicant:	Mr C Honnery
Solicitor for the Applicant:	Amity Lawyers
Counsel for the First Respondent:	Mr R Minson
Second Respondent:	Submitting appearance for the second respondent, save as to costs.
Solicitor for the Respondents:	Clayton Utz

MLG 2232 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DXP18 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	23 AUGUST 2024