BEK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 790

3. Me and my family do not have any nationality certificates from any country, we neither nationals of Iraq nor nationals of Iran, the only document that we have is the white card (enclosed to this visa application)

4. I did not have any rights or privileges due to being stateless, I could not continue my study due to the fact that I am not a citizen of any country.

5. At work I was discriminated against, the employer used to pay me less than half of the wages they used to give the Iranian citizen.

1. At the interview with the first respondent's delegate in June 2018, the applicant gave the following additional evidence relevant to whether or not he had a work permit (P-18 to P-19):

D: When did you stop working?

A: Maybe six to 12 months before I came, because I couldn't work anymore. I don't remember exactly. I'm not sure (indistinct). They wouldn't let you work. I wasn't able to work anymore. At that time, the situation in Iran was not like normal. The circumstances were not normal. At that time there were some elections and many protests at that time. So when I go to the (indistinct), you go with people, like, two or three people to do the job, and sometimes they would just arrest you, they would arrest you, take you somewhere. And you don't - like, because I don't have any documents, they think that, like, 100 per cent they suspect that I'm going to cause some trouble or take part in the protest. So you don't in a way feel free to move around and like whatever you do to participate in a meeting or any activity, the police can come and arrest you. So you don't really feel free to work or to move around to do things.

D: You said you wouldn't have any documents, but wouldn't you have your Amish card?

A: Do you think the Amish card is treated like a real document? It's the contrary, something that works against you. Once they see it, like the policeman, something, will throw it against you or use it against you. And that's Iran. As I said before, the elections and the protests and the situation was very tense. And even the Iranian citizens were like under tension and under pressure, let alone people like us who are not citizens. If they were to see at that time, at that time, it was very tense, two or three people together, they would lie normally arrest them and question them. People like me, we have no docs, it's like a disaster. Like for me, somebody with no documents at that time would be like a disaster, so be under extreme pressure.

1. The IAA at [34] found that "should the applicant return to Iran the Iranian authorities will consider him to be an irregular migrant, or an unregistered or undocumented refugee". The IAA continued at [39]:

[39] I accept that should the applicant return to Iran as an unregistered or undocumented Falli Kurd he is likely to face restrictions such as being restricted from accessing medical treatment without payment, educational and formal and/or legal employment opportunities. I also accept the applicant will be unable to buy a house, car, mobile phone or establish a utilities account or enter a legally recognised lease. However, in the present case, while the applicant is no longer of educational age he has in the past been able to access and complete eight years of formal education. He was also previously employed without a work permit as a labourer, albeit work which was low-paid and irregular and I am not satisfied that he should he return he would be unable to obtain work of the kind as he has in the past.

1. Ground 1 of the Amended Application challenges the finding that the applicant "was also previously employed without a work permit as a labourer". The applicant takes issue with the finding that the applicant was employed "without a work permit". It is stated in particulars (c)-(e):

(c) The applicant never claimed to have undertaken work without a permit (i.e. illegally) in the past when he was a registered refugee ...

(d) The only foundation given by the IAA for its positive finding that the applicant had worked illegally without a permit for over a decade was identified at [41]: "He has never claimed to have ever sought or had a work permit".

(e) The absence of any previous discussion as to whether or not the applicant had previously obtained a work permit was an illogical basis upon which to conclude positively that he had worked for over a decade illegally without one ...

1. For the following reasons, I do not accept that the IAA fell into jurisdictional error in stating that the applicant was "previously employed without a work permit".
2. First, as explained in paragraph 26 above, the applicant stated in the 2016 Statutory Declaration in connection with his claims concerning his employment in Iran that "the only document that we have is the white card" (paragraph 3) and "I did not have any rights or privileges due to being stateless" (paragraph 4). In light of the proximity of these claims in paragraphs 3 and 4 to the applicant's evidence concerning his employment in paragraph 5, I consider that it was reasonably open to the IAA to understand that the applicant's evidence was that he did not have a work permit. A work permit is a "document" which provided a "right". Mr Lovell-Jones, in his two sets of written submissions, neither:

(a) explained why it was not reasonably open to the IAA to understand that the applicant's evidence in these paragraphs was that he did not have a work permit; nor

(b) explained how this evidence could be interpreted to mean that the applicant had a work permit.

1. During the hearing on 9 May 2025, I proposed to Mr Lovell-Jones that the question for the Court was whether it was open to the IAA to understand that the applicant's evidence was that he did not have a work permit. Mr Lovell-Jones did not contend that it was not open to the IAA to understand that the applicant's evidence was that he did not have a work permit. Instead, Mr Lovell-Jones replied by reverting to the point in particular (d) of ground 1. In short, Mr Lovell-Jones' position appeared to be that, even though it was open to the IAA to understand that the applicant's evidence was that he did not have a work permit, since the IAA at [39] did not refer to any evidence of the applicant in support of its finding that the applicant was previously employed "without a work permit", it followed that the IAA did not rely on the applicant's evidence.
2. Second, the applicant stated in his interview with the first respondent's delegate, in an exchange about when and why the applicant stopped working in Iran before he came to Australia, that a reason he "wasn't able to work anymore" (P-18, line 38) was because "I don't have any documents" (P-19, line 2). The applicant repeated that "people like me, we have no docs" (P-19, line 18). I agree with the first respondent's submission at RS [9] that "it would therefore appear - and it was open to the [IAA] to understand the applicant's explanation to mean - that the applicant had told the delegate that he lacked documents permitting him to work" and "that evidence provided a probative basis for the [IAA] to conclude that the applicant was working without applicable work permits".
3. Mr Lovell-Jones, at AS [11], contended that, on a fair reading of the applicant's oral evidence, he did not say that he had no documents other than an amayesh card, but he instead stated that the amayesh card was "not treated like a real document". Mr Lovell-Jones, in paragraph 5 of his reply submission, contended that "the only interpretation that could reasonably be given to [the applicant's oral evidence in paragraph 27 above] is that the applicant was saying that the documents he possessed as a non-citizen were not treated as 'real documents' by the Iranian authorities in the context of the specific elections and protests the applicant was giving evidence about". I disagree with this latter contention. The applicant stated twice that he "[didn't] have any documents" and he had "no docs" other than an amayesh card. In response to a specific question by the delegate about the amayesh card, he questioned whether "the [amayesh] card is treated like a real document". Whether or not it was reasonably open to a decision-maker to understand the applicant's evidence in the way put by Mr Lovell-Jones, it was clearly open to a decision-maker to understand the applicant's evidence to be that, in connection with his ability to work in paid employment, he had no documents other than an amayesh card.
4. Third, as noted by the IAA at [36], country information before it indicated that "many Faili Kurds in Iran - both registered and unregistered - have informal access to employment and ... this is normally tolerated by the authorities but ... pay and working conditions were often significantly worse than for Iranians doing the same work". The applicant stated in the 2016 Statutory Declaration that "at work I was discriminated against, the employer used to pay me less than half of the wages they used give the Iranian citizen". I agree with the first respondent's submission at RS [11] that the applicant's evidence concerning his pay, in light of the country information before the IAA, provided a probative basis for a finding by the IAA that the applicant had worked without a work permit.
5. Fourth, Mr Lovell-Jones stated in oral submissions that, since the IAA at [39] did not refer to the applicant's evidence set out in paragraphs 26 and 27 above in support of its finding that the applicant was previously employed "without a work permit", it follows that the IAA did not rely on that evidence. I disagree. The IAA's obligation to provide written reasons was contained in s 473EA(1) of the Act which stated:

Written statement of decision

If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a) sets out the decision of the Authority on the review; and

(b) sets out the reasons for the decision; and

(c) records the day and time the statement is made.

1. Even if this obligation is expanded by s 25D of the Acts Interpretation Act 1901 (Cth) (see BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 at [48]), the obligation did not extend to listing evidence relied on in support of every finding of fact. Such an obligation would place an onerous burden on the IAA. Section 25D requires that "the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based". I consider that the reason the IAA did not refer to the evidence explained in paragraphs 26 and 27 above in support of its finding of fact at [39] that the applicant was previously employed "without a work permit" was because this question of fact "was ... not considered by the [IAA] to be material to its review": see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [33].
2. Fifth, it is contended in particular (d) that "the only foundation given by the IAA for its positive finding that the applicant had worked illegally without a permit for over a decade was identified at [41]: "He has never claimed to have ever sought or had a work permit". The IAA stated at [41]:

It has been contended that if the applicant undertakes informal/illegal employment opportunities and is detected ·by the authorities when doing so he may be at risk of deportation. On the evidence before me, that being his protection visa application he stated that for at least ten years he worked as labourer at construction sites. He has never claimed to have ever sought or had a work permit. There is no evidence before me when the applicant undertook this informal/illegal employment he had come to the attention of the authorities and I am not satisfied that his circumstances would be different because on return he would be unregistered ... I find any harm feared on this basis is speculative and any chance of harm to be remote and I am not satisfied there is a real chance of serious harm on this basis.

1. I disagree with this contention. The IAA at [39] considered whether the applicant would be able to obtain paid employment on return to Iran as an unregistered or undocumented Faili Kurd. In the course of considering this issue, in a context where "what has occurred in the past is likely to be the most reliable guide as to what will happen in the future" (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575), the IAA had regard to the fact, based on the applicant's evidence explained in paragraphs 26 and 27 above, that "he was also previously employed without a work permit". In contrast, the IAA at [41] considered a separate and discrete contention by the applicant that "if the applicant undertakes informal/illegal employment opportunities and is detected by the authorities when doing so he may be at risk of deportation". In the course of considering this contention, the IAA stated that the applicant "has never claimed to have ever sought or had a work permit". The IAA's statement at [41] that the applicant "has never claimed to have ever sought or had a work permit" was not the IAA's reason for the finding at [37] that the applicant was previously employed in Iran "without a work permit", but was part of the IAA's reasons for its findings at [41].
2. Ground 1 does not identify a jurisdictional error in the IAA's decision.

1. The applicant claimed, and the IAA at [16] and [21] accepted, that the applicant departed Iran in 2012 using a fraudulent Iraqi passport. The applicant claimed he would face harm on return to Iran because he escaped Iran using a fraudulent document. The IAA found at [54]:

I have rejected the applicant's claims that the Iranian authorities have arrested the people smuggler who had assisted him and his cousin and that they are aware they are in Australia and have applied for refugee status. There is no other credible evidence before me to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally and I consider this to be pure speculation on the applicant's part and I do not accept that this to be the case. I am not satisfied that there is a real chance of him suffering any harm on this basis.

1. Ground 2 of the Amended Application challenges the reasoning process in this paragraph. A response to the contentions in the particulars to ground 2 is as follows.
2. First, it is contended in particular (c) that the IAA's finding that "there is no credible evidence ... to suggest that the Iranian authorities are aware that the Iraqi passport he used was fraudulent and he subsequently departed Iran illegally" (No Credible Evidence Finding) focused on the wrong point in time, since the relevant question for the IAA was not whether the Iranian authorities were aware at the time of the IAA's decision whether the applicant used a fraudulent passport, but whether they would be aware of this on the applicant's return to Iran. This contention misunderstands the IAA's reasoning process at [54]. While I accept that the No Credible Evidence Finding concerned the awareness of the Iranian authorities at the time of the IAA's decision, this was a step by the IAA towards its ultimate finding in the last sentence of [54] that it was "not satisfied that there is a real chance of him suffering harm on this basis". At the hearing in this Court on 9 May 2025, Mr Lovell-Jones accepted that the finding in the last sentence of [54] focused on the correct point in time.
3. Second, it is contended in particulars (d) and (e) that the IAA failed to consider "that identification of the applicant to the authorities for the purpose of return would necessarily have revealed that the applicant had departed Iran illegally". There are two problems with this contention.
4. The first problem is that the applicant never claimed that, if he was required to return to Iran, the Iranian authorities would detect or determine upon him re-entering the country that the Iraqi passport he used to depart Iran in 2012 was fraudulent. If the applicant had made this claim, the IAA may have been required to consider it. But the IAA has no obligation to consider a claim not made and which did not arise on the materials before the IAA. When I raised this issue with Mr Lovell-Jones at the hearing in this Court on 9 May 2025, he appeared to accept that the applicant never claimed that, if he was required to return to Iran, the Iranian authorities would detect or determine, upon him re-entering the country, that the passport he used to depart Iran in 2012 was fraudulent. Mr Lovell-Jones also did not identify any material which "raise[d] a case not articulated", being an" unarticulated claim [that is] raised 'squarely' on the material available" to the IAA: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58].
5. Mr Lovell-Jones' two sets of written submissions proposed various ways in which the Iranian authorities, upon the applicant re-entering Iran on return from Australia, might possibly become aware that he departed Iran in 2012 using a fraudulent passport. But Mr Lovell-Jones' efforts in his written submissions expose the absence of any submission or claim by the applicant to the Department or the IAA concerning this issue.
6. The second problem is that some of the applicant's assertions in particulars (d) and (e) involve speculation. As accepted by the IAA at [50], the applicant "no longer has this passport". If the applicant was required to return to Iran and arrived at immigration clearance without a passport, unless the applicant volunteered the information to the Iranian authorities, it is unclear how the Iranian authorities might become aware that the Iraqi passport used by the applicant in 2012 to exit Iran and which the applicant no longer has in his possession was fraudulent.
7. The IAA at [15] noted that "it was put to the applicant [at the protection visa interview] that there was information to suggest that as of May 2013 97% of Faili Kurds who were denaturalised had their Iraqi citizenship restored". It is asserted at AS [17] that an Iraqi passport used by the applicant, who was a registered Faili Kurd, in 2012 to depart Iran "would clearly have been fraudulent". In light of the fact that the applicant departed Iraq using a fraudulent passport without detection and the country information to which the IAA referred at [15], this assertion is speculation.
8. Third, ground 2 states in part that the IAA "failed to give proper, genuine and realistic consideration ... in relation to the applicant's claim to face harm on account of his illegal departure from Iran becoming known to the authorities". While this point is asserted at AS [16], it appears to be based on the applicant's contentions addressed above. As explained in paragraph 45 above, Mr Lovell-Jones appeared to accept that the applicant never claimed that, if he was required to return to Iran, the Iranian authorities would detect or determine, upon him re-entering the country, that the Iraqi passport he used to depart Iran in 2012 was fraudulent. The IAA was not required to consider a claim not made and which did not arise on the material before the IAA.
9. Ground 2 does not identify a jurisdictional error in the IAA's decision.

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. On 20 September 2018, the applicant's representative emailed a submission to the IAA. The submission stated in part: (CB 254-255)

The delegate did not accept as plausible the proposition that the applicant's whereabouts were not raised during the earlier episodes of renewal. The delegate added that it does it make sense that immigration officials would inquire about the absence of the applicant after four/five years if the intelligence services had already established that he had travelled to Australia using a fraudulent document

...

In brief, the sequence of events starts when the applicant's family felt compelled that they need to renew the applicant's card due to the issuance of new version of the white cards, there, the authorities told the applicant's family that they knew about the applicant through the arrest of the person who was involved in facilitating the applicant's exit from Iran, the delegate suggested that the authorities in Iran know where the applicant's family live hence he did not accept that they would wait for the family to approach BAFIA before questioning them and cancelling their registered status.

...

Also, the applicant maintains that he never mentioned that his family's cards were cancelled but rather he said that the authorities did not renew their cards.

1. The IAA at [3]-[6] considered the submission. The IAA stated at [5]-[6]:

[5] In the submission it was contended among other things that:

• the applicant's family felt compelled to go to the Iranian authorities and have "the applicant's card" renewed due to the "issuance of the new version of the white cards"; and

• he never mentioned that his family's cards were cancelled but rather he said that the authorities did not renew their cards.

[6] While not completely clear, it appears that the representative is purporting to restate or clarify the applicant's evidence which he provided at the protection visa interview and/or to correct the delegate's misunderstanding of that evidence. I have listened to the interview recording and I do not agree that the submission accurately reflects his evidence to the delegate. Rather, he stated it was his parents who had wanted to renew their cards and it was this decision which had led to them to come into contact with the Iranian authorities. He made no mention that his family had felt compelled to go and have their card renewed. Nor did he mention that his parents' decision to renew arose because there was a new version of the white cards. Rather, he stated that it was something that they had to do every three to four years because their faces change. Furthermore, he stated that his parents' cards were cancelled. He did not state they weren't renewed. At the beginning of the protection visa interview, the applicant was asked whether he understood the interpreter. He stated he did. He was asked whether he was happy for the interview to continue using the interpreter. He stated he was. During the interview neither the applicant nor his representative gave any indication that there was a problem with the interpreting. Nor were there any indications that there were issues with the quality of the interpreting in the post-interview submission which specifically addressed the event involving his parents but again no mention was made of these new claims. I am not satisfied that there were any interpreting errors. In the circumstances I do not accept the submission as an accurate reflection of the applicant's evidence at the interview. In event, as I have not accepted these aspects of the applicant's claims it makes no difference whether his family's cards were not renewed or cancelled. Finally, to the extent that it involves new information, I am not satisfied that it is credible, or that there are exceptional circumstances to justify considering this new information.

1. The applicant challenges the finding in the last sentence of [6]. Particulars (a)-(f) of ground 3 make three contentions as follows:

(a) particular (c) - the IAA measured the requirement that information be "credible" against a higher standard of satisfaction than s 473DD(b)(ii) required;

(b) particulars (d) and (e) - the IAA failed to approach the statutory task in s 473DD in accordance with the manner explained in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 (AUS17); and

(c) particular (f) - the IAA made findings that were illogical or irrational in finding that the new information was not credible.

1. At the hearing on 9 May 2025, Mr Lovell-Jones did not press the contention based on AUS17.
2. In relation to the contention in particular (c), Mr Jones relied on CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]- [42] where Bromberg J stated:

[41] In my view all that the "credible" element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the "new information" is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the "new information" is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether "new information" should be received by the Authority so that it may be considered at the deliberative stage.

[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word "credible" is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is "evidently not credible" (VEAL v Minister for Immigration & Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

The Authority determined that the "new information" that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the "new information" was true when all that the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the new information is capable of being believed at the deliberative stage of the Authority's review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error.

1. In the present matter, I do not accept that the IAA measured the requirement that information be credible against a higher standard of satisfaction than s 473DD(b)(ii) required. In CSR16, the IAA's reasons for decision caused Bromberg J to conclude at [43] that the IAA "required satisfaction that the new information was true". Nothing in the IAA's reasons at [6] in the present matter suggest that the IAA required satisfaction that the new information set out at [5] was true. To the contrary, the IAA at [6] provided reasons in support of a conclusion that the new information was not capable of being accepted as truthful. Specifically, the IAA noted that the applicant provided evidence at the protection visa interview, and no material before the IAA suggested that the applicant had a problem with the interpreter at the interview or that the interpreter made an error. Further, the applicant had not sought to correct his evidence as part of his application to the IAA. The new information involved a submission by the applicant's representative which was not "an accurate reflection of the applicant's evidence at the interview". The IAA's reasons and concerns were consistent with a conclusion that the IAA understood the meaning of "credible".
2. Further, although it is not for the Court to decide whether or not new information was "credible" within the meaning of s 473DD(b)(ii), as I raised with Mr Lovell-Jones at the hearing on 9 May 2025, it is hard to understand how a representation made by an applicant's representative:

(a) concerning a matter within the direct knowledge of the applicant and not within the direct knowledge of the representative; and

(b) which was inconsistent with evidence given by the applicant, which evidence the applicant had not sought to correct or amend,

could be capable of being believed.

1. An "applicant for judicial review of the Tribunal's decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal", and thus it falls to an applicant "to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error": Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]. The applicant has not identified anything in the IAA's reasons at [6] which support a conclusion that the IAA misconstrued the meaning of the term "credible".
2. In relation to the contention in particular (f) of ground 3, it is stated at AS [27] that "there is no logical reason disclosed in the IAA's reasons as to why [the new information in the IAA's decision at [5]] was not capable of being believed". I disagree. First, to correct an error in particular (f) of ground 3 and in AS [27], the IAA did not positively find that the new information was not credible. In a statutory context where the applicant must satisfy the IAA that the new information was "credible personal information", the IAA was not satisfied that the new information was credible. Second, the IAA at [6] provided reasons for its conclusion that it was not satisfied that the information was credible. As partly explained in paragraph 58 above, the reasons "disclose a logical and intelligible basis" (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) for its finding that it was not satisfied that the new information was credible.
3. Ground 3 does not identify a jurisdictional error in the IAA's decision.

1. At the conclusion of the hearing, I sought submissions from the parties on costs. Mr Johnson did not have instructions in relation to the amount sought by the first respondent. I will hear submissions on costs at the handing down of judgment.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.