FEL18 v Minister for Home Affairs

Case •

[2025] FedCFamC2G 125

•

6 February 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FEL18 v Minister for Home Affairs [2025] FedCFamC2G 125

File number: SYG 2493 of 2018
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 6 February 2025
Catchwords:  MIGRATION - Immigration Assessment Authority - Safe Haven Enterprise Visa (class XE) (subclass 790) visa refused – whether the Authority failed to correctly construe and apply s 463DD or engaged in illogicality – whether the Authority acted unreasonably by failing to exercise its statutory power under s 473DD – no jurisdictional error arises – application dismissed.
Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 36(2A), 46A(1), 65, 473DB, 473CB, 473DC, 473DD
Cases cited:

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

AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71

AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133

AVQ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1122

BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2020) 171 ALD 628; [2020] FCA 1362

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189

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

DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 221

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12

DZU16 v Minister for Immigration & Anor (2017) 321 FLR 306; [2017] FCCA 851

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210

Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law
Number of paragraphs: 95
Date of hearing: 21 January 2025
Place: Parramatta
Counsel for the Applicant: Mr Reynolds
Solicitor for the Applicant: Mr Al-Shadidi (Asad Lawyers)
Counsel for the First Respondent: Mr Johnson
Solicitor for the First Respondent: Mr Vethecan (Clayton Utz)
Solicitor for the Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 2493 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FEL18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s 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

  1. This is an application for judicial review of a decision made by the Immigration Assessment Authority (“Authority”) on 17 August 2018. The Authority affirmed a decision made on 12 January 2018 by a delegate of the then Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (class XE) (subclass 790) visa (“SHEV”).

  2. For the reasons outlined below, the application must be dismissed.             

    BACKGROUND

  3. The applicant is a male citizen of Iran. He first arrived in Australia as an unauthorised maritime arrival on 29 September 2012.

  4. He participated in an arrival interview on 5 October 2012 and a further interview on 7 December 2012. He was assisted by an interpreter who spoke Dari for the first interview and an interpreter who spoke Farsi/Persian for the second.  

  5. In submissions dated 13 February 2018 by the applicant’s representatives, prepared in response to the Authority’s review, the applicant claimed he was disadvantaged during the first arrival interview on account of the interpreter’s national origin influencing the dialect of Dari spoken. He attributed miscommunication to the interpreter, particularly for the suggestion the applicant claimed to be a Shiite Muslim in his entry interview, when he had only answered that he was born a Shiite.

  6. Through a representative, he attempted to lodge an application for a Protection (class XA) (subclass 866) visa on 9 August 2013. However, in a letter dated 14 November the applicant was informed by the Department of Immigration and Border Protection that his application was invalid as he was affected by a bar under s 46A(1) of the Migration Act 1958 (Cth) (“the Act”). The letter stated the bar had now been lifted and invited the applicant to lodge an application for either a Temporary Protection (subclass 785) visa or a SHEV.

  7. On 11 May 2016 he made a valid application for the SHEV with the assistance of a representative.

  8. He attended an interview with a delegate on 4 October 2017, with his representative in attendance and the assistance of an interpreter who spoke Persian.

  9. In submissions dated 13 February 2018, the applicant observed the interpreter demonstrated occasional deficiencies in vocabulary, which exposed him to an unreasonable risk of being misunderstood.

  10. The applicant’s representatives provided post interview submissions on 12 October 2017.

  11. A delegate refused the application for the SHEV on 12 January 2018 under s 65 of the Act. 

  12. The matter was then referred to the Authority for review on 18 January 2018.  On 17 August 2018, the Authority affirmed the delegate’s decision.

  13. On 6 September 2018 the applicant applied to the then Federal Circuit Court of Australia for judicial review of the Authority’s decision.

    IMMIGRATION ASSESSMENT AUTHORITY DECISION

  14. The Authority had regard to material provided by the Secretary under s 473CB of the Act.

  15. The applicant’s new representative provided written submissions and additional supporting documents on 13 February 2018. The Authority regarded the submissions as argument rather than ‘information’ for the purposes of s 473DD of the Act, and considered them to this extent.

  16. The Authority further considered the additional supporting documents. At [6] it was not satisfied the applicant’s mental health conditions had any impact on his ability to provide the relevant claims throughout the application process. It was not satisfied at [6]-[9] that exceptional circumstances were present to justify consideration of:

    ·The applicant’s claim that his medication caused memory and concentration problems;

    ·A medical certificate dated 19 January 2018;

    ·A medical report from a clinical psychologist dated 19 January 2018;

    ·Pharmacy records dated 20 August 2017 and 17 November 2017;

    ·The applicant’s claim that he was attacked by a high-ranking military officer and suffered a cut to his chest;

    ·The applicant’s claim that he did not previously disclose his conversion to Christianity due to worries about his family’s safety in Iran, a certificate of baptism dated 14 July 2013 and a letter from a pastor dated 25 January 2018;

    ·The applicant’s claim to be friends with a man who supports a figure against the Iranian Regime.

  17. The Authority did not accept at [9] the applicant’s “new” claim to have converted to Christianity since 2013 as credible. It was not satisfied that attendance at church services or undergoing baptism demonstrated the claim and that the certificate of baptism could not have been provided earlier.

  18. The Department of Foreign Affairs and Trade Country Report for Iran (“DFAT Country Report”) published on 7 June 2018 constituted new information. The delegate had regard to the most recent report at the time which had been published on 21 April 2016 and was over two years old at the time of the Authority’s decision. The Authority found at [10] exceptional circumstances existed to justify consideration of the most recent DFAT Country Report.

  19. The applicant’s claims were summarised at [11] as follows:

    •He was born into a Shia Muslim family and his father was involved in the management of the local mosque. The applicant did not believe in any established religion and rejected Islam. He was beaten and physically harmed by his father because of this;

    •He enrolled in computer studies at University, but was also required to attend religious knowledge classes, which were a compulsory subject. He expressed his beliefs on religion to his teachers and was expelled from University;

    •His father's brothers are senior members of the military; one is the head of the [redacted] in Ahwaz. He expressed his religious views to his father and uncles and his uncles threatened his life. Because of his continuing refusal to participate in any religious events or prayers the applicant's father disowned him and threw him out of the family home;

    •In order to obtain employment, a person needs clearance from the Sepah. The applicant did not meet the religious requirements for this so was unable to obtain any employment. He ended up selling telephone cards. He lived in a friend's garage. He was arrested and detained for street vending on one occasion;

    •The authorities and intelligence services have visited his family and asked about his whereabouts;

    •If he returns to Iran he will continue to express his views against the regime and against Islam and will be hanged as an apostate.

  20. At [12] the Authority accepted the applicant’s stated date and place of birth, that he was an Iranian national of Persian ethnicity, that he completed primary and secondary education which ended in 2005 and subsequently enrolled in computer studies, that he completed military service in Iran from January 2008 to June 2009, that he had family in Iran and that he had not been employed in Australia.

  21. It did not accept at [14] that memory problems are a side effect of the applicant’s medication and observed there was no evidence the applicant took such medication in 2012.

  22. It accepted at [14] that during the interview on 5 October 2012 there may have been mistranslations, and less weight was afforded to the interview due to the translation problems and proximity to the applicant’s arrival in Australia. At [18] it was satisfied the applicant did not claim to be a practising Shia Muslim during the interview and was also prepared to accept he had abandoned Islam since he was a teenager. It was prepared to accept the applicant’s father was involved in the management of the local mosque.

  23. The applicant did not indicate there were any issues with the interpreter assisting on 7 December 2012 and the Authority found at [15] there were not.

  24. The Authority did not accept at [15] the applicant’s claim that he supported himself as a street vendor and made enough for bare survival due to the inconsistency of his stated ability to save US$7,000 in some two years. It found this claim significantly undermined the applicant’s credibility. In view of this, it preferred the applicant’s statement in the interview on 7 December 2012 whereby the applicant remained living in the family home until his departure from Iran. It did not accept the applicant’s father disowned or expelled him from the family home.

  25. The applicant’s claim that he sold telephone cards as stated in the 7 December 2012 interview was accepted at [15].

  26. An unprompted statement during the interview on 7 December 2012, where the applicant stated he withdrew from his university studies for financial reasons was the preferred evidence. The Authority did not accept at [16] that the applicant expressed views against Islam or Iranian authorities to clerics, university staff or any other parties whilst at university and was expelled. Rather, the recency and increasing embellishment of this claim demonstrated the claim itself was a fabrication designed to further the applicant’s claims for protection. It concluded the applicant was not a witness of truth.

  27. It did not accept at [17] the applicant’s claims that two of his paternal uncles are senior members of the Iranian authorities, his uncles threated him due to his expressed views on Islam and that he was arrested for being a street vendor and detained for “one, two or three days”. The claims were rejected on account of the findings against the applicant’s credibility and the failure to mention any of these events until his interview for his SHEV application on 4 October 2017.

  28. It concluded at [18] the applicant was not of any interest to the Iranian authorities due to his lack of participation in religious activities and therefore rejected at [20] the claim that local authorities and intelligence services visited his family after his departure. It did not accept the applicant expressed atheistic views in Iran. Rather, it found at [19] the applicant had become an atheist since his arrival in Australia. It did not accept the applicant would publicly declare his views on religion upon the return to Iran nor volunteer information about his abandonment of Islam and atheism. The Authority stated this would not be due to a fear of persecution.

  29. The Authority instructed itself at [21] – [22] as to the criteria in 5H(1) and definition in 5J of the Act relevant to the refugee assessment.

  30. Having found the applicant is an Iranian national, it observed at [23] Iran was the relevant receiving country.

  31. It was not satisfied at [23] that the applicant would be prevented from obtaining any employment in Iran.

  32. At [24] the Authority was satisfied there was not a real chance the applicant would face punishment from the authorities on return even if it was known he did not observe Islam. With reference to the DFAT Country Report, the Authority concluded at [25] the report did not indicate the applicant would experience harm on return to Iran. This conclusion was based on rejected claims that the applicant made public statements that criticised Islam and the finding that he would not publicly declare he abandoned Islam or otherwise denounce the religion upon his return.

  33. It did not accept at [26] the applicant’s claim that he was of any interest to the authorities or intelligence services following his departure from Iran. Accordingly, it was not satisfied the applicant faced a real chance of harm on return to Iran because he sought asylum overseas.

  34. The Authority concluded at [27] that whilst the applicant meets the definition of a refugee in s 5H(1), the criteria in s 36(2)(a) was not met.

  35. The complementary protection assessment criteria within the meaning of significant harm under s 36(2A) was considered. The Authority was not satisfied at [30] the applicant faced a real risk of significant harm on the return to Iran for the purposes of s 36(2)(aa) for his abandonment of Islam, being an atheist or seeking asylum in Australia. These factors were considered cumulatively and individually. It concluded at [31] that as there were no substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Iran there is a real risk the applicant would suffer significant harm, the applicant did not meet the criteria in s 36(2)(aa) of the Act.

    GROUNDS OF JUDICIAL REVIEW

  36. The grounds of judicial review are contained in an amended application filed on 12 June 2024. They are reproduced as follows (less particulars, emphasis in original):

    1.The Second Respondent (IAA) engaged in jurisdictional error by failing to correctly construe and apply section 473DD of the Migration Act 1958 (Cth) (Act) or by engaging in illogicality to the requisite legal standard.

    2.The IAA engaged in jurisdictional error by unreasonably failing to exercise its statutory power under s 473DC of the Act to invite the Applicant to give new information either in writing or at an interview.

    THE APPLICANT’S SUBMISSIONS

  37. The Authority engaged in jurisdictional error in its approach to s 473DD of the Act in three respects.  

  38. First, it did not appropriately discharge its statutory task through a proper understanding of new information and its significance to the claims; (see: BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (2020) 171 ALD 628; [2020] FCA 1362 at [55] per Charlesworth J). The Authority did not consider the significance of the new Christianity claim or supporting documents, in view of the applicant’s claimed fear of persecution due to being a recorded or perceived Christian. It failed to properly address a fear of persecution due to the existence of records that stated the applicant was a Christian irrespective of its own view regarding the genuineness of the applicant’s belief.

  39. Second, the Authority misconstrued s 473DD and failed to properly perform its statutory task by failing to consider the alternative criteria of s 473DD(b). Having concluded there were no exceptional circumstances within the meaning of s 473DD(a), the alternative criteria in s 473DD(b) must be applied. Whether new information is credible for the purposes of a 473DD(b)(ii) requires consideration of whether such information is capable of being accepted as true. Fact finding on whether the information is true constitutes a failure of the correct application of law.

  40. The applicant’s evidence in their statutory declaration that “I became Christian” is plainly capable of being accepted as true. However, the Authority considered the probative worth as well as the truth and accuracy of the statement to conclude it was not credible. The correct approach would have been to enquire as to whether the statements were capable of being accepted as true.

  41. An error of the same nature was apparent in the Authority’s consideration of the baptism certificate and Pastor’s letter as there was no express consideration of the two documents as against s 473DD(b)(ii). Even where a beneficial reading was afforded to the decision, and it was assumed s 473DD(b) was implicitly considered, the Authority engaged in the same error by not asking itself whether the documents were capable of supporting the applicant’s claimed conversion to Christianity. The Authority therefore engaged in an erroneous assessment as to whether in fact it believed the letters to be true and accurate. This constituted an error of the kind referred to in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [42].

  42. Should the Court’s view be that the Authority correctly considered the baptism certificate and Pastor’s letter, the applicant submits in the alternative the Authority’s reasoning was vitiated by unreasonableness or illogicality. The applicant made reference to unreasonableness or illogicality in the context of s 473DD (see: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 per Feutrill J at [64] – [74] (“AAI20”)) where the conclusion that new information was not credible personal information within the meaning s 473DD(b)(ii) was legally unreasonable; (see: AAI20 at [80] – [90]).

  43. Further or alternatively, the result was legally unreasonable as no logical, rational or unreasonable decision-maker could have concluded the applicant’s statement, baptism certificate and Pastor’s letter were not capable of being accepted as evidence of the applicant being a Christian.

  1. Third, the Authority failed to consider the applicant’s statement that he withheld his claim about being a (recorded) Christian because he did not want to be seen as trying to strengthen his claims. The Authority did not address this reason despite being obligated to as against s 473DD when concluding the new information did not meet the limb in s 473DD(b)(i).

  2. The abovementioned errors were material. Had the Authority applied the correct test, it may have reached a different conclusion in respect of s 473DD and not foreclosed itself from considering the (recorded) Christian claim, the baptism certificate and Pastor’s letter. This could have led to a different outcome.

  3. The Authority engaged in jurisdictional error by unreasonably failing to exercise its statutory power under s 473DC of the Act to invite the applicant to give new information (either in writing or at an interview), in circumstances where the Authority departed from two positive findings made by the delegate in favour of the applicant.

  4. There is a condition of reasonableness implied into the procedural duty and power of the Authority; (see: DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12 at [19]). The condition can be breached where the Authority departs from findings made by the delegate or decides on issues that were not dispositive before the delegate without considering or exercising the s 473DC power to invite the applicant to a hearing or otherwise obtain new information.

  5. Counsel for the applicant provided various instances where the Authority’s exercise or failure to exercise such power was found to be legally unreasonable; (see: DZU16 v Minister for Immigration & Anor (2017) 321 FLR 306; [2017] FCCA 851 at [118], [121] which was appealed but dismissed in Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; [2018] FCAFC 32; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 see especially [67], [69], [70], [82]-[83]; ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3], [4], [15] – [17], [20] (“ABT17”); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 (“CRK18”); DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 221 and AVQ18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1122 where the ABT17 and CRK18 were applied).

  6. The delegate found that the applicant’s father had forced him out of the family home and that he had been expelled from university in 2010 due to comments he made about the role of Islam in Iran. However, the Authority rejected both of these findings, having made different findings at [15] and [16] respectively.

  7. The ‘informational gap’ referred to in ABT17 arose in the present case where unlike the delegate, the Authority did not have the opportunity to assess the applicant’s demeanour at the protection interview.

  8. In both instances, the Authority preferred information given in the 7 December 2012 interview based on reasons that were not material issues before the delegate being the applicant’s ability to save $7,000 with regard to his claimed financial circumstances and the timing of his claims concerning his expulsion from university. The applicant was not put on notice that the previous findings in his favour might be decided differently. Nor was he informed of the Authority’s concerns about the related sub-issues.

  9. In these circumstances it was legally unreasonable for the Authority to determine the review based on the aforementioned issues, and prefer the evidence given in the 7 December 2012 interview over that given in the protection interview. This was in contradistinction to the delegate, without first exercising his power to obtain information from the applicant about the issues of concern regarding his home and expulsion from university.

  10. The Authority failed to consider claims, or component integers thereof, that were before it (either expressly raised, squarely raised by the material or an implication of its own findings), or by making a finding in the absence of evidence.

  11. First, the Authority ought to have considered a claim or component integer of whether the applicant might attract prosecution by virtue of his religious views becoming known upon his return in the reasonably foreseeable future, irrespective of the applicant making public declarations or denunciations of Islam. The applicant drew an analogy between the present case and that of AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (“S395/2002”) with particular reference to [35] and [56] per McHugh and Kirby JJ.

  12. Second, the Authority failed to consider a component integer of the applicant’s claims that the risk he faced was heightened by the virtue of his father’s religious position.

  13. Third, the Authority’s reasoning implicitly drew a dichotomy between apostates who made public declarations or public denunciations of Islam, and those that did not where the first category was deemed to face a degree of risk and the latter did not. There was no identified basis for the dichotomy. The applicant stated the error is analogous to that in S395/2002 making reference to [56]-[60] per McHugh and Kirby JJ and [90] per Gummow and Hayne JJ.

    THE FIRST RESPONDENT’S SUBMISSIONS

  14. With regard to the first complaint, the Authority was required to and did proceed on a correct understanding of the applicant’s claims, as well as a correct understanding of the nature and content of the new information and its potential significance to the claims. The applicant did not put any information or submission before the Authority that he feared harm as a person who would merely be perceived as a Christian. The Authority therefore did not confine itself in any impermissible way in its consideration of new information regarding the applicant’s conversion to Christianity.

  15. Second, the Authority did not misconstrue s 473DD(b)(ii). Rather, the Authority had concerns the new claim, wherein the applicant was baptised and converted to Christianity supported by the Pastor’s letter and baptism certificate, was “completely at odds” with his earlier claim that he was an atheist. This was not a minor variation or development of the earlier claim (cf AVQ15 v Minister for Immigration and Border Protection (2018) 361 ALR 227; [2018] FCAFC 133). The Authority engaged in the requisite anterior stage assessment of the credibility of the new information finding that it was not capable of being believed.

  16. Third, whilst the Authority did not make reference to one of the applicant’s reasons as to why he did not advance his claimed conversion to Christianity earlier, this does not point to error. The Authority made express mention to the other reason provided at [8]. However, the applicant’s explanation that he did not want his religious conversion to be inferred as an attempt to strengthen his protection claim was not expressly mentioned in the Authority’s reasons.

  17. However, that does not point to error. The applicant claimed that he did not mention the conversion claim earlier because he did not want it to be inferred as an attempt to strengthen his protection claim. That was not an explanation as to why the new information could not have been earlier provided; rather, it was an explanation for why the applicant chose not to disclose his conversion claim earlier. That is, the explanation was in its terms incapable of satisfying the Authority under s 473DD(b)(i). It was therefore not an explanation the Authority was required to consider under s 473DD(b)(i). Put another way, the Authority did not fail to engage with s 473DD in relation to the new information by not expressly engaging with the explanation.

  18. The task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation; (see: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] per Allsop CJ, Griffiths and Wigney JJ).

  19. Counsel for the first respondent referred to authority that the nature of a review conducted under Part 7AA permits the Authority, conducting a de novo review, from reaching different conclusions on points of facts from those by the primary decision-maker. The fast track statutory regime of Part 7AA does not require the Authority to notify the referred applicant that it is considering taking a different view which is adverse to the applicant of the material considered by the delegate; (see: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [72] (“DGZ16”); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16, [17]; as the Full Court said in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189 at [174] and [176]).

  20. The Authority considered both elements of the applicant’s claims on the same information before the delegate; first, that his father had beaten and threw him out of the house and second, that he was expelled from university for making remarks about Islam. No issue of an “information gap” arises here (see: ABT17).  

  21. Contrary to the applicant’s submission, an information gap is only relevant to the assessment of the Authority’s non-exercise of power under s 473DC(3) where the Authority rejects an account accepted by the delegate “wholly or substantially on the basis of its own assessment of the manner in which that account was given”; (see: ABT17 at [25]).

  22. It remained for the Authority to make its own findings on the basis of the materials before it. The Authority drew its conclusions based on claims the applicant himself had made.

  23. It was open to the Authority to differ from the delegate in relation to the consideration of whether to accept the applicant’s claims. That was indeed part of the Authority’s function as a de novo reviewer; (see: DGZ16 at [76]). No error is made out.

  24. In respect of the first limb, the Authority did consider whether the applicant had a fear of persecution on the supposition that his religious views would become known at [19]. The present case is not comparable to S395/2002 because the Authority expressly found the applicant would decide in the future not to mention his religious view and this would not be due to a fear of persecution, but because he had not done so in the past and would have no desire to do so.

  25. Secondly, the Authority expressly noted the applicant’s father’s “religious position” at [18] and considered the applicant had not encountered harm in the past. The Authority did not make any such error in failing to consider the heightened risk the applicant faced on account of his father’s position.

  26. Third, the Authority identified country information that provided an evidential basis to draw a distinction between apostates at [25]. That is, the Authority cited country information that indicated that it was unlikely that individuals would be prosecuted on charges of apostasy, but one recent instance was of a man who had made public statement critical of Iran on social media. In that respect, the Authority did not draw any unwarranted dichotomy between different classes of apostates, but made findings about the level of risk the applicant would face by reference to his claims (to the extent it accepted those claims) and the country information. There was no error in this approach.

    CONSIDERATION

  27. 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.

  28. In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:

    It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

  29. It is for the applicant to satisfy the Tribunal or Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

  30. It is well established the Authority is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

  31. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).

  32. In assessing new information against the criteria of s 473DD(a) and (b), the Authority is first required to assess the information against the criteria in s 473DD(b)(i) and (ii). Only if one or both of the criteria in s 473DD(b)(i) or (ii) are met will the Tribunal then go on to consider if there are exceptional circumstances to justify accepting the new information under s 473DD(a); (see: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 at [60]).

  33. In considering the meaning of credible in s 473DD(b)(ii), this involves an inquiry as to if the new information is ‘capable’ of being believed, not whether the information is true or accurate. The latter assessment should only take place after the information is accepted, not at the anterior stage. Only information that is ‘evidently not credible’ should be rejected under s 473DD(b)(ii); (see; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] – [43]).

    Ground One

  34. Ground one is a claim that the Authority failed to correctly construe and apply s 473DD by engaging in illogicality to the requisite standard. Three particulars are relied upon.

  35. The first relates to a claim that the Authority failed to consider new information that would have supported a claim that the applicant also feared harm on the basis he would be perceived to be a Christian.

  36. It is not put to the Court that the Authority proceeded on an incorrect understanding of the nature and understanding of the new information. The Court accepts the respondent’s submission that the applicant never provided information or submission that he feared harm on the basis he would be ‘perceived’ as a Christian. The applicant’s claim was that he had converted to Christianity and faced harm on that basis. Accordingly, the Authority was not required to consider the information on that basis. No error accordingly arises.

  37. The second complaint is that the Authority misconstrued what ‘credible information’ means in s 473DD(b)(ii) in respect of the Pastor’s letter and the baptism certificate. The applicant submits that he made a claim that ‘I became Christian’ in a statutory declaration at CB 254. This claim was supported the documents set out above. The Authority dealt with the claim the applicant had become a Christian at [8]. The Authority had the following to say:

    The applicant’s central claim for protection, which he has consistently made since 2013, is that he has no religion. His new claim to have been a Christian since 2013 is completely at odds with this and I do not accept it as credible. I am not satisfied that attendance at some Liberty Baptist Church services or undergoing a baptism supports a claim the applicant has converted to Christianity. I do not accept the applicant did not make this claim earlier due to a fear for his family safety. I am not satisfied that the claim in the certificate of baptism could not have been provided earlier. I am not satisfied that there are exceptional circumstances to justify considering the applicant’s claim regarding his conversion to Christianity, the baptism certificate at (b) or letter from Pastor Keith at (c).

  38. The above indicates that the Authority considered whether or not the information was “capable of belief” but rejected it on the basis that it was completely at odds with earlier claims by the applicant and thus not credible. The Authority then went on to consider whether the new information could have been provided earlier and found that it could have. On this basis, the Authority rejected the receipt of the new information. The Court accepts the respondent’s submission that the applicant seeks to recast the claimed error as some form of legal unreasonableness and in so doing simply seeks to argue the merits of the Authority’s assessment of the credibility of the new claim. The Court is satisfied that the assessment that the information was not credible was open to the Authority based on the assessment of the evidence that was before it and for the reasons it gave. The assessment by the Authority does not reach the very high bar required for a finding of illogicality. Accordingly, no error arises.

  39. The third complaint in ground one cavils with the finding that there were not exceptional circumstances to accept the material because the applicant did not want to be seen as trying to strengthen his claims. Given the Court has accepted that neither of the grounds for the receipt of the new material set out in s 473DD(b)(i) and (ii) were met, it is unsurprising the Authority found there were not exceptional circumstances to justify receipt of the information. In the Court’s view, the explanation provided by the applicant could not satisfy s 473DD(b)(i). Further, the Authority expressly dealt with the other reason, being that he was fearful of ramifications in Iran for his family. This was considered by the Authority at [8]. No error accordingly arises in respect of the third particular the ground one. Ground one has no merit.

    Ground Two

  40. Ground two is a complaint that the Authority fell into jurisdictional error by unreasonably failing to exercise its statutory power under s 473DC of the Act to invite the applicant to give new information either in writing or at interview.

  41. First it is to be noted that in s 473DB, the Authority is exhorted to carry out its review without accepting or requesting new information; (s 473DB(1)(a)) and without interviewing the referred applicant; (s 473DB(1)(b)). New information may only be accepted whether criteria in s 473DD satisfied. The applicant contends that the Authority made factual findings that were different from those made by the delegate with respect to whether the applicant’s father had beaten him and threw him out of home and whether the applicant had been expelled from university due to “expressing his views”.

  42. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [28] (“Li”)), or where a decision has been made that lacks an “evident and intelligible justification”; (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker; (see: Li at [30], [113]).

  43. The Court accepts that there are no closed categories when it comes to discerning legal unreasonableness. However, the matters relied upon by the applicant in their submissions tend to focus around the issue of relocation. The Court accepts that where a merits review body determines, as compared to the delegate, that relocation to another area of the country is feasible, then this is a matter that requires the applicant be given the opportunity to address the issue.

  1. The current matter does not involve such an issue, rather it relates to conclusions drawn by the Authority based on claims the applicant had himself made. The Court is satisfied that it was open to the Authority to differ from the delegate in relation to whether or not it accepted the applicant’s claims. This is precisely the function of the de novo review. The fact that the Authority did not accept some of the applicant’s claims, for the reasons it gave, does not take the matter into the realm of legal unreasonableness. Rather, the findings were precisely within the realm of the task the Authority had to perform.The conclusions it reached were open to it based on the evidence before it and for the reasons it gave. Ground two has no merit.

    Ground Three

  2. Ground three is a claim where the Authority fell into jurisdictional error by failing to consider a claim or component integer thereof that was expressly before it. The Court accepts that the Authority is required to correctly construe and consider claims including component integers thereof. However, it is not required to consider claims that were not expressly raised, or squarely raised on the material that was before the Authority.

  3. The first particular relates to the purported claim that the applicant would not seek to hide his religious views upon return to Iran and would therefore face a well-founded fear of persecution by reason of his religious views becoming known upon his return. It is submitted by the applicant the Authority should have expressly considered whether the applicant might attract persecution irrespective of the applicant making public declarations or denunciations of Islam. The Court accepts the respondent’s submission that it was not necessary to do so, as the Authority expressly found the applicant would decide in the future not to mention his religious views, not through a fear of persecution, but because he had not done so in the past and would have no desire to do so. The Court is satisfied this finding was open to the Authority based on the evidence before it and for the reasons it gave. This aspect of the claim has no merit.

  4. The second particular relates to a claim that the applicant faced a heightened risk by virtue of his father’s religious position. The Court does not accept this claim. The Authority at [18] expressly noted the father’s religious position and took into account in observing the applicant had not in the past encountered harm, notwithstanding the religious views that he held. It was thus open to the Authority to find that any such harm in the future is not well-founded. This aspect of the claim has no merit.

  5. The third particular contends that the Authority’s delineation between apostates who made public declarations/denunciations compared to those who did not was a false dichotomy. In this case, the Authority expressly identified at [25] country information that indicated the basis to draw this a distinction between apostates. It found the following:

    I have not accepted the applicant’s claims that he has made public statements critical of Islam. I have found that the applicant would not publicly declare that he had abandoned Islam or otherwise denounce Islam on return to Iran. Overall the country information does not point to the applicant experiencing harm on return to Iran on this basis.

  6. It is well settled that the country information and the weight it gives to that information is a matter for the Authority; (see: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).

  7. The Court is satisfied that the Authority did expressly consider the integer and rejected it for the reasons it gave. No error arises.

  8. Ground three has no merit.

    DETERMINATION

  9. As none of the grounds of judicial review have merit, the application must be dismissed.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       6 February 2025

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