EKR18 v Minister for Immigration & Citizenship
[2025] FedCFamC2G 741
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKR18 v Minister for Immigration & Citizenship [2025] FedCFamC2G 741
File number(s): SYG 2376 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 23 May 2025 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – Whether the Authority’s assessment of new information under s 473DD of the Migration Act 1958 (Cth) is affected by jurisdictional error – Whether the Authority unreasonably failed to exercise the discretionary power under s 473DC of the Act – Whether the Authority engaged in reasoning, and made findings, that were legally unreasonable – application allowed Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 473CB, 473DC, 473DD Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494
AYY17 v Minister for Immigration and Border Protection and Another [2018] FCAFC 89
BEL16 v Minister for Home Affairs [2019] FCA 1678
BZC17 v Minister for Immigration and Border Protection [2018] FCA 902; 264 FCR 667
CLV16 v Minister for Immigration and Border Protection [2018] FCAFC 80; 260 FCR 482
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178; 375 FLR 312
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
FLD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 569
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539
Division: Division 2 General Federal Law Number of paragraphs: 101 Date of hearing: 14 May 2025 Place: Parramatta Counsel for the Applicants: Mr Honnery Counsel for the First Respondent: Mr Flick Solicitor for the First Respondent: Mr Cacaj (Clayton Utz) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2376 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKR18
First Applicant
EKS18
Second Applicant
EKT18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.
2.A writ of certiorari shall issue, quashing the decision of the Immigration Assessment Authority made on 9 August 2018.
3.The matter is remitted to the Administrative Review Tribunal for further consideration.
4.A writ of mandamus shall issue, directed to the Administrative Review Tribunal, requiring it to determine the Applicants’ application according to law.
5.The First Respondent is to pay the Applicants’ costs fixed in the sum of $8,371.30.
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 D HUMPHREYS
INTRODUCTION
This is an application seeking judicial review of a decision of the Immigration Assessment Authority (“the Authority”) dated 9 August 2018, affirming the refusal of a delegate of the Minister for Immigration & Multicultural Affairs (“the delegate”) to grant the applicants a Safe Haven Enterprise Visa (“SHEV”).
For the reasons set out below, the application must be dismissed.
BACKGROUND
The Applicants are an Iranian family.
The First and Second Applicants are husband and wife. The Third and Fourth Applicants are their twin children. The Second, Third, and Fourth Applicants did not make any claims to be owed Australia’s protection obligations in their own right.
The First and Second Applicants arrived in Australian on 17 June 2013, and were interviewed in July 2013. The Third and Fourth Applicants were born in Australia on 1 July 2016.
In July 2016, the Applicants were invited to apply for either a Temporary Protection (Subclass 785) visa or a SHEV. On 12 February 2017, the Applicants lodged a combined application for a SHEV. The First Applicant provided a Statement of Claims on that same date, which set out the First Applicant’s claims, and under the heading “Main Claim”, the First Applicant made claims of purported clashes with the Iranian Moral Police. Those clashes were said to have arisen from the First Applicant’s ownership of a women’s clothing store. In the Statement of Claims, the First Applicant claimed to have converted from Islam to Christianity in December 2016.
On 23 February 2018, the First Applicant was interviewed by the delegate and, on 6 March 2018, the Applicants made further submissions and provided further evidence. This material included a series of screenshots of the First Applicant’s social media activity dated from about 28 June 2017 to 11 July 2017.
On 20 March 2018, the delegate refused the Applicants’ application.
The Applicants sought review of the delegates decision, and on 23 March 2018 the matter was referred to the Authority.
On 28 March 2018, the First Applicant provided a Further Statement in support of the review application. In that Statement, the First Applicant reiterated the claims based on his shop activity and alleged conversion to Christianity. The First Applicant also raised further claims in relation to a putative political opinion, and political activity since 2015.
On 9 August 2018, the Authority affirmed the delegate’s decision.
In addition to the Court Book, a transcript of the delegates interview with the applicant was tendered to the Court
THE AUTHORITY’S DECISION
The Authority noted that it had before it material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”).
The Authority considered the various pieces of review material before it and identified the additional material in which it was satisfied that there were exceptional circumstances to justify considering. The only material the Authority was satisfied that there were exceptional circumstances to justify consideration was an updated Country Information Report on Iran released on 7 June 2018 by the Australian Department of Foreign Affairs and Trade (“DFAT”). This report postdated the delegate’s decision and contained more recent details on religious conversions, religious non-belief, and the situation for returnees in Iran. It was a report prepared specifically for the purposes of protection determination in Australia and updates the report relied upon by the delegate.
The Authority declined to exercise its discretion under s 473DC(3) of the Act to hold an interview or interviews with the applicant or anyone else.
At [15], the Authority summarised the Applicants’ claims as follows:
•Life in Ahvaz was difficult for many reasons including due to frequent bombings and terrorist attacks, armed clashed between the Arabs and the authorities, air pollution, a lack of freshwater, poor access to healthcare and welfare.
•The applicant rented a shop in Ahvaz from June 2012 to April 2013 to sell women’s clothes. He had the necessary licenses and permits. However, the moral police came to his shop several times and accused him of promoting western culture. They visited him a number of times, harassed and insulted him, and closed his store for a week before he was able to reopen. This caused financial difficulties for the applicant.
•The last time they closed his shop was on 14 April 2013. The applicant asked for an explanation and insisted he was doing nothing illegal. A Major insulted him and he snapped back. After this the Major accused the applicant of threatening him and insulting the Islamic Regime and the Supreme Leader. The Major ordered soldiers to arrest the applicant but he was able to escape.
•The applicant left Ahvaz and went to hide in Isfahan. After a week he returned to Ahvaz and he and his wife flew to Tehran together on 22 April 2013 where they stayed for one night. Before leaving Iran from Tehran airport, the applicant was able to verify through a contact with the airport Ettalaat that he was not on a watch list. They helped the applicants to check in and pass through the departure gate.
•The first applicant and his wife hated Islam because of the difficulties it had caused them due to Sharia law. On 4 December 2016 they converted to Christianity. If the applicant returns to Iran he fears he will not be able to practise his new religion.
•The applicant has attended protests in Australia and shared information about his political and Christian activities in Australia on various social media platforms.
•If he were to return to Iran he will be tortured and seriously harmed. He may be sentenced to death for insulting the Leader and Islam.
The Authority accepted the Applicant’s nationality and identity were as claimed and found Iran to be the receiving country for the purpose of the application.
The Authority was satisfied that while in Iran the First and Second Applicant’s identified as Muslim.
At [30], the Authority accepted that the First Applicant operated a clothes store in Iran, however the Authority was not satisfied that he or the Second Applicant were ever of any adverse interest for any reason related to this business. The Authority did not accept that the First Applicant was pursued by the moral police, or that they harassed, insulted, or threatened to arrest him. The Authority did not accept that a Major accused the First Applicant of insulting the Supreme Leader. The Authority did not accept that the First and Second Applicant obtained any assistance from any person in facilitating their departure via Tehran airport. The Authority did not accept either Applicants were of any adverse interest to the authorities for any reason at the time of their departure from Iran.
At [42], the Authority was prepared to accept that the First and Second Applicants took part in baptism ceremonies and that all four applicants have attended a church in Australia. The Authority accepted that the First Applicant had attended a number of bible study sessions, however, the Authority was not satisfied that the First and Second Applicants’ involvement in this church, or any of their Christian activities in Australia, had been for any reason other than to obtain a favourable migration outcome. The Authority also considered that the First Applicant’s sharing of Christian content on social media was also for the purpose of obtaining a favourable migration outcome. The Authority was not satisfied that the applicants are sincere followers of the Christian faith and considered all the Christian related activities engaged in by the First and Second Applicants in Australia, including their church attendance, baptism, and social media activities, had been for the purposes of strengthening their claims to be refugees. The Authority did not accept that the Third and Fourth Applicants had been raised to be Christians by the First and Second Applicants. The First and Second Applicants had not satisfied the Authority that they took the Third and Fourth Applicants to church for any reason other than to strengthen their claims to be a refugee.
At [43], the Authority did not accept that the First Applicant was a non-believer of the Islamic faith while in Iran or that he had become one during his time in Australia. The Authority considered that the First and Second Applicant continued to be followers of the Islamic faith and that they have raised the Third and Fourth applicants to also follow this faith.
At [48], the Authority noted that evidence before it indicated that the First and Second Applicant had attended some public events in Australia and been photographed with anti-Iran signs and Iranian monarchy flags, and the Authority accepted that this was the case. However, the Authority did not accept that this conduct was carried out in furtherance of any genuinely held anti-regime, anti-Iran, or pro-Shah sentiments. The failure to mention any of these events in the First and Second Applicant’s visa application, the fact that the First and Second Applicant could only recall one protest at the delegate’s interview, the sparse supporting evidence, and the contradictory explanations provided in relation to this lead the Authority to conclude that neither the First or Second Applicant genuinely held any political opinion which may have exposed them to adverse attention in Iran. The Authority considered all of the Applicants’ political activities in Australia, including attending a small number of protests and sharing posts online, had been engaged in only for the purpose of strengthening their claims to be refugees.
At [49], the Authority accepted that were the Applicants to return to Iran in the foreseeable future they would do so after having sought asylum in Australia.
At [51], the Authority did not accept that there was a real chance of any harm to any of the Applicants in Iran for any reason related to the First Applicant’s business.
Further, at [52], the Authority noted that in his Statement of Claims, the First Applicant claims to fear harm due to bombings and terrorist attacks, armed clashed between the Arabs and the authorities, air pollution, a lack of freshwater, and poor access to healthcare and welfare. However, the Authority noted that the First Applicant had not otherwise expanded upon these claims or sought to provide supporting information regarding this matter either at the delegate interview or subsequent submissions. As such, the Authority was not satisfied there is a real chance of harm in relation to these matters in the foreseeable future.
At [53], the Authority was satisfied that if the Applicants were to return to Iran, they would continue to identify as Muslim, and at [54], the Authority was not satisfied there was a real chance of Applicants’ church attendance becoming known in Iran. Nor was the Authority satisfied on the information before it that the Iranian authorities would seek to harm the Third and Fourth Applicants should their church attendance become known, particularly considering their very young age.
The Authority referred to the DFAT report at [55], which noted that according to international observers, the Iranian authorities have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, this included converting to Christianity. As such, the Authority was not satisfied that the church attendance of the Third and Fourth Applicants exposed either themselves or their parents to a real chance of any harm should they return to Iran.
The Authority noted at [55] that the First Applicant stated in his visa application that Sharia Law caused him and the Second Applicant difficulties, but had not otherwise set out any details on this matter. The Authority further noted that there was no credible indication that either the First or Second Applicant ever experienced any harm in Iran for religious reasons, and was satisfied that this would be the case were they to return to Iran for all applicants. The Authority did not accept that there was a real chance of any harm for any of the Applicants in Iran for reasons of their religious views.
At [56], the Authority disregarded all of the First and Second Applicant’s political conduct in Australia under s 5J(6) of the Act, including attending anti-Iran protests and posting material on social media. The Authority did not accept that there was a real chance of any harm for these reasons to any of the Applicants in Iran.
At [57], the Authority was not satisfied that Applicants had otherwise engaged in any conduct that would be of interest to the Iranian authorities while in Australia. Furthermore, the material before the Authority did not suggest a real chance of harm should the authorities come to know they sought asylum in a western country.
As such, at [58], the Authority concluded that Applicants did not meet the requirements of the definition of refugee in ss 5H(1) and 36(2)(a) of the Act.
At [61], the Authority outlined that the requirement for there to be a “real risk” of significant harm applies the same standard as the “real chance” test: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. As such, the Authority was satisfied that, for the same reasons set out above, there was not a real risk that the Applicants would face harm, including significant harm were they to return to Iran.
Accordingly, the Authority concluded at [67], that the Applicants did not meet s 36(2)(aa) of the Act.
Further, at [70], the Authority noted that as none of the Applicants met the definition of refugee or the complementary protection criterion, it followed that they also did not meet the family unit criterion in either s 36(2)(b) or s 36(2)(c) of the Act.
GROUNDS OF JUDICIAL REVIEW
By a Second Further Amended Application filed on 29 April 2025, the applicant relied on four grounds of judicial review. They are as follows (less particulars):
1.The Second Respondent’s (Authority’s) assessment of new information under s 473DD of the Migration Act 1958 (Cth) is affected by jurisdictional error.
2.The Authority unreasonably failed to exercise the discretionary power under s 473DC of the Act.
3.Not pressed at hearing
4.The Authority engaged in reasoning, and made findings, that were legally unreasonable.
THE APPLICANTS’ SUBMISSIONS
Ground One
Ground 1 asserts that the Authority failed to consider the Applicants’ claims to have held a political opinion, and been politically active.
The Applicants submit that the First Applicant provided new information to the Authority, including a statutory declaration from the first applicant dated 20 March 2018 that contained a new claim that “Since I rejected Islam I formed anti-government views however I didn’t share my view in Iran as it was extremely dangerous” (CB 285 at 20). The Applicants claim that the First Applicant did not share his political views in Iran because it was extremely dangerous was not raised in his original statement or at the SHEV interview and amounted to information in the sense of “a communication of knowledge about some particular fact, subject or event”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [24].
It was submitted that the Authority was required to consider the new claim under s 473DD of the Act, and if satisfied that criterion was met, then evaluate the claim in the refugee assessment. However, the Applicants’ claim the Authority’s assessment of new information is incomplete as its reasoning merely states “The statement from the applicant contains new information in relation to…” (CB 298 at 4). The Applicants submit that the Authority’s reasons do not identify or evaluate the new information in the statement, or “sort the wheat from the chaff” for the purposes of assessing whether the new information satisfies the s 473DD of the Act criterion: CLV16 v Minister for Immigration and Border Protection [2018] FCAFC 80; 260 FCR 482 at [74]. Consequently, the Applicants submit that the Authority failed to perform its statutory task: BZC17 v Minister for Immigration and Border Protection [2018] FCA 902; 264 FCR 667 (‘BZC17’) at [50]-[53], [56].
The Applicants submit that if the Authority had correctly assessed the new information, it could have found it was credible personal information under s 473DD(b)(ii) of the Act, which in turn would be a mandatory relevant consideration under s 473DD(a) of the Act: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 at [11]-[12].
It was submitted that the Authority failed to consider the First Applicant’s new claim that he concealed his political opinions in Iran because he feared it was dangerous to express them. The Applicants submit that this new claim potentially engaged the principles elucidated by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (‘Appellant S395’).
The Applicants submit that consideration of the new claim could have affected the Authority’s assessment of critical issues, such as whether the Applicants genuinely hold anti-Iran political opinions, the finding that “there is no indication that the applicants were ever politically active in any way while in Iran” (CB 312 at 56), and the consideration of their political conduct in Australia.
Further, it was submitted that given the nature of the Authority’s error, and the “lacuna” undermining the assessment of new information, the Court cannot conclude that the outcome would “inevitably” have been the same if not for the Authority’s error, and as such the error is therefore material and constitutes jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16].
Ground Two
Ground 2 asserts that the Authority acted unreasonably by not interviewing the Second Applicant in its consideration of the risk of harm faced by the Second Applicant for political and religious reasons.
The Applicants submit that the Authority decided to consider the Secondary Applicants’ risk of harm individually, and in doing so it was unreasonable for the Authority to not exercise its discretionary power under s 473DC of the Act to raise the issue of the secondary applicants’ risk of harm with the First Applicant, or to interview the Second Applicant, prior to finding her religious and political activities were performed for the sole reason of obtaining a favourable migration outcome given:
•The secondary applicants’ risk of harm was not canvassed by the delegate during the interview with the first applicant.
•The second applicant was not interviewed by the delegate, such that she did not have a reasonable opportunity to explain her political beliefs or satisfy the Authority of the reasons why she took her children to church: cf CB 307 at [42], CB 308 at [48].
•The Authority not having evidence as to “if or when the second applicant was for a period a non-believer” was a consequence of her not being interviewed, and the issue not being explored, by the delegate. Without inviting the second applicant to address the issues there was a lacuna in the review material, such that there was not a proper basis to find she (and the applicant children) continue to follow Islam, which was rather based on speculation and conjecture.
It was submitted that the Authority was not bound by the delegate’s approach and is required to form its own conclusions in respect of the applicant’s claims: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 (‘DGZ16I’) at [72].
The Applicants’ submitted that the present matter is a case where the Authority has considered and decided different points beyond those decided by the delegate, whose decision was confined to the First Applicant. The Second Applicant’s risk of harm, and her credibility, were new issues arising on the review which had not been explored by the delegate but which the Authority decided to address: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. It was submitted that a finding that an applicant has fabricated a claim is “an extremely serious finding which ought not to have been made lightly”: DHQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 178; 375 FLR 312 at [101]; yet in this case, the Authority effectively made such findings in respect of the Second Applicant, despite an absence of evidence from her in the review material, and her not being interviewed by the delegate.
It was submitted that it was legally unreasonable for the Authority not to interview the Second Applicant given the Authority knew that it did not have, but the Second Applicant was likely to have, information on the issue: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]. Further, the Authority’s adverse findings in respect of the Second Applicant could only be within the bounds of legal reasonableness if the Second Applicant had been interviewed about the topics the Authority decided to consider, or the secondary applicants’ risk of harm had been discussed at interview.
Ground Four
Ground 4 asserts that the Tribunal engaged in a legally unreasonable reasoning process in rejecting the First Applicant’s claims that he was a Christian.
The Applicants submitted that the Authority noted the First Applicant “raised a number of times his concerns with the interpretation at the arrival interview and I have taken this into account” (CB 301 at 13) . Despite this statement, and the inherent risks of relying upon matters not raised in an arrival interview to impugn credibility, the Authority rejected the Applicants’ abandonment of Islam on the basis of it not being mentioned in their arrival interviews.
The Applicants claim that this was an unreasonable process of reasoning because:
•The Authority relied upon the applicants making “no mention of experiencing any problems while in Iran for religious reasons” in their arrival interviews, despite the applicants not being directly asked such a question and their evidence at their arrival interviews referring to problems they faced in Iran due to factors that were capable of encompassing religious reasons.
•The Authority did not dispute, and purported to take into account, the first applicant’s
•concern of inadequate interpreting at the arrival interview: cf CB 91, 94, 301 at [13].
•The applicants’ evidence was that they formally converted to Christianity in December 2016 – over three years after their arrival interviews: CB 94.
The Applicant’s submitted that the Authority’s unreasonable reasoning and finding was a material error for the following reasons:
1.First, the applicants’ non-adherence to Islam, if accepted, could have been a basis to engage Australia’s protection obligations. It would involve improper speculation to attempt to discern how the Authority would have reasoned if it had not departed from the requisite reasonable process of reasoning, and it follows there is a realistic possibility the outcome could have been different had the error not been made: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [36].
2.Second, the error tainted the assessment of the applicants’ credibility, which in turn could have impacted the assessment of other claims. As Mortimer J (as she was then) explained in AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 at [20]: “Emphatic adverse findings on credibility may well, expressly or implicitly, be linked with one another so that it will not be possible, or realistic, for a reviewing Court to be confident that an error in one strand of credibility reasoning does not infect other strands.”
THE FIRST RESPONDENT’S SUBMISSIONS
Ground One
The First Respondent submits that the Applicants’ submissions proceed from the erroneous starting point that s 473DD of the Act provides an unqualified mechanism for the Applicants to give new information or make new claims before the Authority.
It was submitted that the clear statutory intention of s 473DD of the Act is that the Authority must consider review material provided to it pursuant to s 473CB of the Act, but it must not accept or request new information other than in the limited circumstances in s 473DD(a) and (b) of the Act: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (‘M174/2016’) at [22] per Gageler, Keane and Nettle JJ.
The First Respondent submitted that although the Applicants’ submissions place significant emphasis on the decision in BZC17, that decision confirms that the primary rule is, as the High Court explained in M174/2016, that the Authority’s review is to be undertaken by considering the material without accepting or requesting new information and without interviewing the referred applicant. BZC17 is authority for the proposition that the Authority must turn its mind to the material submitted to it in order to determine whether there is new information and what to do with that information: BZC17 at [53].
It was submitted that this is precisely what the Authority did in this matter. The Applicants’ submissions fail to engage with the Authority’s reasons. Read fairly and in context, the Authority’s reasons clearly reveal that all information – including the purportedly new information relied on by the Applicants – was considered by the Authority. That is so, notwithstanding a typographical error seized on by the Applicants.
It was further submitted that the “new” information on which Ground 1 is premised is a cursory statement in the First Applicant’s post-interview Statement. In short, the Applicants’ “new information” consists of a bare claim to hold anti-government views, and a small number of screenshots.
The First Respondent submits that in relation to the bare claim, the First Applicant’s evidence is that “Since I rejected Islam I formed anti-government views however I didn’t share my view in Iran” (CB 285 at 20). The First Applicant’s claim is expressly temporally confined; with the First Applicant clarifying the temporal aspect of his claimed anti-government views, stating that he attended protests in 2015 and 2018, and then “probably attended” other protests in 2016 or 2017. All of those dates are several years after the Applicants left Iran in 2013. However, the First Applicant goes on to say, expressly and unequivocally “This was not the reason I escaped Iran” (CB 285 at 20).
In relation to the screenshots, it was submitted that they amount to an undated photograph of armed men kicking a person, a photograph of the First and Second Applicants, a small series of links primarily relating to Christianity that the First Applicant shared over a two week period from 28 June 2017 to 14 July 2017 (very shortly after his claim was lodged), and photos of the First Applicant attending a protest in Australia on “11 Feb”, otherwise undated.
The First Respondent submits that the crux of the issue is that at [4] of the Authority’s Decision, where the Authority notes that “The statement [Statement] from the applicant contains new information in relation to”, with the sentence then ending. That is an undesirable typographical error, but it does not reveal jurisdictional error on the part of the Authority. The First Respondent submitted the reasons make it abundantly clear that the material which was referred to in that paragraph was the First Applicant’s purported political views for the following two reasons:
•First, the Authority immediately goes on to deal with the photographic evidence at paragraph [5]. That photographic evidence was expressly linked to the First Applicant’s suggested political views in his own Statement. It was also directly linked to the same point by the First Applicant’s advocate, at the same time the Statement was provided. The way in which the Applicant presented his claim directly mirrors the way in which the Authority summarised that claim, notwithstanding the typographical error.
•Secondly, it is clear that the Applicant’s claimed anti-government views was a matter which the Authority considered. The Authority specifically considered those views, both as in relation to the claimed activity in Australia, and more generally as to an internalised view. In addition to the aforementioned summary, the Authority considered in detail the evidence of the Applicants’ claimed political activities (CB 307-308 at 44-48) and then rejected that evidence as not demonstrating any genuine anti-regime or anti-government views (CB 310 at 56).
It was submitted that the Authority’s conclusions make it very clear that the Applicants’ claims had been considered and rejected. The Authority expressly did not accept that “either the first or second applicants genuinely hold anti-regime or anti-Iran political opinions, or any other political opinion that may be of adverse interest in Iran” (CB312 at 650). The Authority further went on to conclude that it did not accept “that the first or second applicants have genuinely held anti-Iran or anti-regime political opinions. As such I do not accept that they would engage in any conduct in furtherance of such opinions [being opinions that the Authority determined were not genuinely held] were they to return to Iran” (CB 312 at 65).
Consequently, it was submitted that the Authority’s reasons do not reveal error of the kind identified in BCZ17. In this matter, the Authority identified the information complained of by the Applicants (albeit in circumstances that included a typographical error in the reasons), considered that information, and rejected it as not being credible.
The First Respondent noted the following two further matters for completeness in relation to Ground 1:
•First, it should be noted that the information provided was in any event not “new” information which was not before the delegate. Although the Applicants’ submissions suggest that the First Applicant was not questioned at his interview about his political opinions, but only about his attendance at protests in Australia, that is not correct. The First Applicant’s claimed political views were information that was before the Delegate.
•Secondly, the Applicants’ attempt to draw a parallel between this matter and the decision of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (‘S395’). That analogy is not apposite, and the decision in S395 does not bear on the resolution of this matter.
Ground Two
It was submitted that it is “trite” that the Authority has no obligation to make an applicant’s case for the Applicant, but rather has a duty to respond to the case advanced: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (‘NABE’) at [58]-[60].
The First Respondent submitted that there is a threshold issue as to whether the Second Applicant made a “claim” in circumstances where her representative expressly confirmed that such a claim was not being made. However, in circumstances where the Authority considered the risk of harm faced by the Second Applicant, the Court might conclude that the issue could be resolved in the Second Applicant’s favour.
It was submitted that if it is accepted that the Second Applicant made a “claim”, then the issue turns on the Authority’s treatment of such a claim based on the material before the review body: NABE at [58]-[60].
In this respect, the First respondent emphasised the following two matters;
•The Applicants, through their representative, confirmed that the Second to Fourth Applicants made no claims to be owed protection obligations, which bears on determining the extent to which an unarticulated claim “clearly emerges” from the material (C.f. Kasupene v Minister for Immigration and Citzenship (2008) 49 AAR 77 at [21]); and
•The evidence pertaining to the Second Applicant was in substance identical to that relied on by the First Applicant. That is, there was no material which raised different circumstances or matters pertaining to the Second Applicant which was not already the subject of evidence in respect of the First Applicant.
The First Respondent submitted that the extent that the Authority considered the Second Applicant’s fear of harm for religious or political reasons, it did so not on the basis of a claim made, but one which emerged from the materials, and those materials made it abundantly clear that the First and Second Applicant’s claims overlapped completely. There were no distinguishing features in respect of the Second Applicant.
It was submitted that those circumstances bear decisively on the contention that the Authority ought to have exercised the discretion conferred by s 473DC of the Act to interview the Second Applicant.
It was further submitted that there is no general principle that requires the Authority to provide a review applicant with an interview; rather, s 473DC turns on the particular facts of the case: DGZ16 at [72]-[76].
The First Respondent submits that this position does not change in circumstances where the Authority made a finding going to credibility. The Authority is permitted to rely upon inconsistences or “illogicalities” in evidence. The ultimate question is whether the reasoning process is open to the decision-maker: BEL16 v Minister for Home Affairs [2019] FCA 1678 at [16]-[17].
It was submitted that there was a clear and logical rationale behind the Authority’s approach in not interviewing the Second Applicant. That is that the Second Applicant made no claims, and raised no matters, which were not identical to those already raised by the First Applicant. There was no suggestion that the Second Applicant had, or was likely to have had, information on the particular circumstances of claimed religious or political views which had not already been put forward by the First Applicant.
Consequently, the First Respondent submits that the Court would not conclude that there was any failure to exercise the discretionary power conferred by s 473DC of the Act.
Ground Four
The First Respondent submits that the entirety of Ground 4 rests on the conjecture that the Authority’s reference to matters stated by the Applicants in their arrival interviews was unreasonable when considering the credibility of their claims to have converted to Christianity.
It was submitted that it is correct that the material was taken into account by the Authority in considering the claims based on the Applicants’ purported religious beliefs, but the matter has been taken out of context, and with selective referencing, by the Applicants in their written submissions.
It was further submitted that the Authority considered the Applicants’ claims to be genuine practitioners of Christianity in considerable detail at [31]-[43], with the Authority rejecting those claims, principally for the following reasons, none of which are addressed in the Applicants’ submissions:
•The First Applicant claimed to have been non-religious for many years, and converted to Christianity in Australia around three years after arrival. His evidence as to the circumstances of that conversion and his motivation was unpersuasive. The First Applicant was questioned about how he came to attend church, but repeatedly did not address the substance of the question asked or gave illogical answers [34].
•The Authority doubted that they would “attend church because they were invited by someone they claim was not a friend, whom it appears they had no common language with, and whom it seems as far as the first applicant understood provided no reasons for why he should attend.”, and concluded that that aspect of the claims has been fabricated [34]-[35], [40].
•The Authority noted the Applicants’ reliance on a letter from a pastor dated 11 February 2018, but also identified significant limitations on that evidence, which clearly set out that the Applicant only attended a church in December 2016 [36].
•The Applicants’ answers about his understanding of the Christian belief were vague, and when probed he often provided generalised responses which dodged the crux of the questioning [37]-[38].
•The Applicant had made detailed claims based on a matter which is not raised by the Applicants on this review, but provided only “three brief references to Christianity” in circumstances where the Applicants’ statement was dated 3 months after his baptism [39].
•Although the Applicants had been in Australia for three years before making their application, they did not commence attending church until three – six months after they were invited to apply for a protection visa in July 2016. In addition, the Applicant provided only a small number of social media posts, all from immediately after his claimed conversion. That concern was amplified in circumstances where the statement providing those screenshots was dated March 2018 (i.e. a year after the application) [41].
The First Respondent submitted that the proper course for questioning on religious beliefs must be directed to whether the claim to hold the belief is genuine or not, rather than testing by reference to an assumed level of knowledge: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (‘MZZJO’) at [47]. It was further submitted that that is precisely what the Authority did. The issues identified by the Authority go directly towards assessing whether the Applicant’s claimed belief was genuine or not, and concerned principally not a lack of knowledge, but rather the Applicants’ evasiveness, failure to engage with questioning, and the “illogicalities” in his evidence. The Authority did not impermissibly assume the role of arbiter of doctrine.
It was submitted that there was nothing illogical or irrational in the reasoning process followed by the Authority. To the contrary, the reasoning process is precisely the kind of process which was held to be permissible in MZZJO; namely detailed and cumulative assessment of the merits of the claims.
The First Respondent submitted that given that the inconsistencies and issues went far beyond the Applicants’ entry interviews, no jurisdictional error can arise: FLD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 569 at [57].
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 539 at [46] the following was said:
The Tribunal is not a Court. It is an administrative body operating in an environment which requires an expeditious determination of a high volume of applications...Its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected from a court of law.
It is well established the Authority is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348
It is for the Applicants to satisfy the Authority, being the relevant decision maker, that the Applicants meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
Ground one is a claim that the Authority’s assessment of new information made available to it, in the form of a statutory declaration dated 28 March 2018, was incomplete as the Authority did not consider if the information satisfied the criteria under s 473DD of the Act.
At [4] of the Authority’s decision the following appears:
On 9 March 2018 the applicant’s legal representative provided written submissions to the IAA further statement from the applicant. To the extent that these contain legal arguments and respond to findings of the delegate they did not amount to new information and I have had regard to them. The statement from the applicant contained new information in relation to…
There are two errors in this paragraph. First, the date of 9 March 2018 is incorrect and should read 9 April 2018: see CB 274. The Court does not consider this error to be of any moment.
Secondly, the last sentence in [4] is incomplete and makes no reference to what that new information was. This statement then needs to be read, however, by reference to the following paragraphs. Paragraphs [5], [6] and [7] deal first with social media posts, secondly with three files entitled ‘Christianity posts’, and thirdly 5 photos. In each case the Authority determined this was not new information. Accordingly, there was no work for s 473DD of the Act to do.
Paragraph [9] makes reference to a further letter of support from a Pastor dated 1 April 2018. The Authority noted this letter postdated the delegates decision. However, the Pastor had previously provided two letters of support. The Authority stated that the Applicant had ample opportunity to present all relevant information before the delegate’s decision and was not satisfied that exceptional circumstances existed to justify considering that new information
While paragraph [9] clearly engages with the operation of s 473DD(a) of the Act, it is not clear that the Authority engaged in a clear manner with s 473DD(b) (i) or (ii) of the Act. Looking however at the reasoning of the Authority, the reference to the date of the letter as being after the delegate’s decision grapples with the working requirements of s 473DD(b)(i) of the Act. The statement that the Pastor had previously provided letters of support, and the applicant had ample opportunity to provide all information again appears to grapple with s 473DD(b)(ii) of the Act. The Authority then finds that there are not exceptional circumstances to justify the consideration of this information.
Although not as clear as it could be, the Court is satisfied the Authority did properly consider this new information by reference to the requirements of s 473DD of the Act. No jurisdictional error is apparent.
At [10] the Authority accepts a new Country Information Report released after the delegate’s decision.
Significantly, however, there is no reference in the decision record to the Applicant’s statutory declaration dated 28 March 2018. On behalf of the Applicant, it is submitted the Statutory declaration contained a new claim that the Applicant feared returning to Iran: “Since I rejected Islam, I formed anti-government views. However, I didn’t share my view in Iran as it was extremely dangerous”.
At [56] the Authority determined that neither the First or Second Applicant’s held anti-regime or anti-Iran political opinions or any other political opinion that might be of adverse interest in Iran. This finding is based on there being no indication the Applicants were ever politically active while in Iran. There is no indication that the Authority grappled with the claim at any point they did not share their anti-regime views by reason that it was dangerous. Further, this was notwithstanding the Applicants’ evidence of issues with Authorities relating to their clothing store being closed down due to selling western style clothing and having trouble with Sharia law.
The Applicants assert that consideration of this new claim could have realistically affected the outcome of the matter relying upon Appellant S395.
The Court accepts the Applicants submission that the Court in this case is left guessing whether the new information referred to but not specified in [4] is what the Applicant contends it is or even perhaps something else.
The Court does not accept the respondent’s submission that the reasons make it abundantly clear that the material described as new but not specified was the Applicant’s purported political views. It could be but it may not be.
In those circumstances the Court cannot be satisfied that the “new” information was considered either in part or at all. This failure constitutes jurisdictional error, and the applicant is entitled to the relief sought in the initiating application.
While the above is sufficient to dispose of the matter, the Court will make some brief comments on Grounds two and four.
The Court is not satisfied there was any error in the part of the Authority in not interviewing the second applicant pursuant to s 473DC of the Act. First, no request was made for the Second Applicant to be interviewed prior to a decision by the Authority. Second, the Court is not satisfied that the Second Applicant made a “claim” in circumstances where her representative expressly confirmed that such a claim was not being made. The Court is not satisfied that the claim relied upon clearly emerged from the materials before the Authority. The fact that such a claim might be said to arise is not enough: AYY17 v Minister for Immigration and Border Protection and Another [2018] FCAFC 89 at [18]. Ground two has no merit.
Ground four is a general claim of legal unreasonableness in rejecting the First Applicant’s claims that he was a Christian. This claim was dealt with in some detail at [31]-[43]. In the First and Second Applicants’ Entry Interview both the First and Second Applicants stated that they left Iran as the security closed their shop down for selling clothing not based on Islamic criteria (CB11-12 and 31-32). No mention was made of them being non-believers. While some caution needs to be taken in relying upon Entry Interviews of the First Applicant having rejected Islam when he was twenty.
A fair reading of the Authority’s decision indicates a comprehensive consideration of the Applicant’s claims to have rejected Islam and converted to Christianity. The Court is satisfied the conclusion reached by the Authority was not so unreasonable that no reasonable decision maker could have come to it, and there was an evident logical basis for the conclusion reached. Ground four has no merit.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 23 May 2025
SCHEDULE OF PARTIES
SYG 2376 of 2018 Applicants
Fourth Applicant:
EKU18
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23
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