BSY18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1674

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

1. The applicant is an Iranian national who arrived in Australia as an unauthorised maritime arrival in 2013. On 16 December 2016, the applicant applied for the protection visa that is the subject of this proceeding.
2. On 26 July 2017, the Delegate refused to grant the application. The matter was then referred to the IAA for review of the Delegate's decision.
3. On 27 March 2018, the IAA affirmed the Delegate's decision.

1. At [3]-[9] of its decision, the IAA assessed new material provided to it against s 473DD of the Migration Act 1958 (Cth) (Act). The IAA found that the criteria for consideration under that provision were met in relation to some, but not all, of the new information.
2. The IAA summarised the applicant's claims for protection at [10] of its decision. The IAA accepted that:

(a) the applicant was of Arab ethnicity (at [15]);

(b) the applicant may have wished to wear Arab dress or celebrate cultural events (at [15]);

(c) the applicant was unable to have his qualifications recognised, as a result of discrimination (at [16]);

(d) the applicant may have encountered a level of discrimination in daily life (at [18]);

(e) the applicant was involved in an altercation relating to a currency issue (at [21]);

(f) the dispute between the applicant and an official over the currency issue could possibly have been construed as an assertion of his cultural or political rights (at [23]);

(g) it was possible the Basij sought out the applicant in the immediate aftermath of the altercation (at [23]);

(h) individual Ahwazi Arabs may be subjected to random acts of violence or brutality in the context of general discrimination against and repression of Ahwazi Arabs, which happened to the applicant's friend (at [24]);

(i) if he returned to Iran, the applicant would likely be returning on a temporary travel document or laisser-passer (at [29]);

(j) the applicant may be suspected of having applied for asylum overseas (at [29]);

(k) the applicant encountered discrimination in his dealings with government agencies and officials (at [37]);

(l) ethnic minority groups, including Ahwazi Arabs, can experience a high level of societal discrimination (at [37]); and

(m) the applicant would be sad if his return to Iran meant that he would be separated from his partner (at [38]).

(a) the applicant faced religious discrimination due to not being able to follow Sunni religious practices, in circumstances where he had no wish to do so (at [15]);

(b) not being able to wear Arab dress or celebrate cultural events was discrimination reaching the threshold for serious harm (at [15]);

(c) the applicant experienced, or would experience in the future, discrimination amounting to serious harm in relation to his cultural practices, religion or language (at [15]);

(d) the applicant had been or would be subjected to discrimination amounting to serious harm in relation to his employment or education (at [16]);

(e) the applicant was subjected to any form of racially motivated discrimination reaching the threshold for serious harm (at [18]);

(f) the applicant was attributed with the profile of a pro-Arab activist or dissident as a result of the currency issue (at [23]);

(g) if the Basij had found the applicant in the immediate aftermath of the altercation, this would have resulted in serious harm (at [23]);

(h) the applicant continued to be of interest to the Basij following the two visits to his office that he first claimed (at [23]);

(i) there was a real chance that the applicant would be at risk of harm of any kind on return arising from events prior to his departure (at [23]);

(j) the applicant was at risk of harm, given his profile and lack of engagement in Arab nationalist activities (at [24]);

(k) there was a real chance of the applicant facing harm for not attending mosque or not observing other aspects of Islamic practice (at [26]);

(l) if the applicant publicly revealed his marriage to an Australian Christian woman, there was a real chance this would result in any form of punishment or harm, or would result in the applicant being considered an apostate (at [27]);

(m) the unhappiness of the applicant's parents regarding the relationship would result in serious or significant harm (at [28]);

(n) the applicant would attract adverse attention on return in Iran, or that he had an adverse profile that might result in any kind of harm (at [32]);

(o) the applicant's past experiences of discrimination met the threshold for significant harm (at [37]);

(p) there was a real risk the applicant would face discrimination amounting to significant harm in the future (at [37]); or

(q) any suffering due to the applicant's separation from his partner would constitute significant harm as relevantly defined (at [38]).

1. Having regard to the above, the IAA found that the applicant was unable to meet the criteria for the protection visa (at [33] and [39]). Accordingly, the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 6 April 2018. The matter remained in the central migration docket for some years and was previously docketed to another judge before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon a further amended application filed on 4 July 2025, containing the following grounds:

1. The Authority's decision is affected by jurisdictional error due to:

(a) legal unreasonableness; and/or

(b) failing to engage in proper, genuine and realistic consideration of the review material as required by s 473DB of the Act.

Particulars

(a) The Authority impugned the applicant's claim relating to his risk profile with the basij based on his evidence at his entry interview because:

1. he did not "explicitly state" at the entry interview that the basij had been looking for him because of a specific incident and said that he did not know why the basij were looking for him.
2. he did not state that it was "specifically because of that incident and the subsequent interest in him by the basij that he had decided to leave Iran".
3. he only mentioned that the basij had been looking for him at the end of a series of reasons and incidents that he gave for his decision to leave Iran, in which he first referred to the problem with having his degree recognised as one of the main reasons for his departure: CB 223 at [21].

(b) The applicant's evidence at the entry interview was given in a circumscribed context in which:

1. he was instructed to speak "briefly" about "why you left Iran";
2. his evidence mentioning the basij that was ultimately impugned by the Authority was given in response to "yes or no questions"; and
3. when the applicant was asked "Did the police, security, or intelligence organizations impact on your day to day life in Iran?" he responded by requesting "can I explain it?" but was told "Just tell me in one sentence, one or two sentences": see applicant's affidavit dated 30 June 2025, Annexure A.

(c) The Authority's findings that it was "highly implausible" the basij would have continued to pursue the applicant (CB 223 at [22]) and that he was not imputed with an adverse profile or continued to be of interest to the basij following the two visits to his office (CB 224 at [23]) were undermined by a process of reasoning that was legally unreasonable because it was based on the Authority impugning the applicant's answers at his entry interview without considering that those answers were given in a circumscribed context, and therefore misconstruing the nature of the applicant's answers.

(d) Further or alternatively, the Authority failed to engage in proper, genuine and realistic consideration of a significant part of the review material (viz. the recording of the entry interview) as required by s 473DB of the Act.

1. The Authority's decision is affected by jurisdictional error due to failing to consider an integer of the applicant's claims.

Particulars

(a) The applicant explained that his family continue to practice their Sunni Islamic beliefs secretly and provided country information that "... Sunni Muslims' rights are being systematically violated" in Iran in support of the submission that "a perception that the applicant is Sunni is one factor to consider that may heighten the applicant's risk of harm": CB 150 - 151.

(b) While the delegate considered this issue and found the applicant does not have a well-founded fear of persecution on the basis of having family members who practice Sunni Islam (CB 179), this integer of the applicant's risk profile was not considered, in the requisite sense, by the Authority.

1. Ground 1 contended that the IAA's reasons were impacted by a failure to consider the applicant's answers at his entry interview within context. This was said to have been unreasonable. Further or alternatively, the applicant contended that the IAA failed to engage in a proper, genuine and realistic consideration of the review material in this regard.
2. The applicant observed that the IAA was required, in accordance with s 473DB(1) of the Act, to review the Delegate's decision "by considering the review material provided to [it] under section 473CB". This required the IAA to consider the true nature of the evidence: CLE19 v Minister for Home Affairs & Anor [2020] FCCA 1110 at [32] (Judge Riethmuller); EMQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 947 at [74] (Judge Mansini). The applicant observed that the IAA's task was required to be performed within the boundaries of reasonableness. Reliance was placed upon cases indicating a need for caution in relying upon early interviews, including MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 (MZZJO) (North and Bromberg JJ, with Mortimer J, as her Honour then was) and Minister for Home Affairs v AYJ17 [2019] FCA 591; (2019) 165 ALD 64 (Moshinsky J).
3. The applicant observed that, at the SHEV interview, he claimed there had been visits by the Basij to his family after his departure from Iran and that his family had not told him about them until he insisted that they do so because it was important for his application: CB 223 [22]. The IAA found it was "highly implausible" that the Basij would have continued to pursue the applicant beyond the immediate aftermath of the argument (at [22]). It did not accept that the argument led to the applicant being imputed with the profile of a pro-Arab activist or a dissident, or that he continued to be of interest to the Basij following the two visits to his office: (at [23]). The applicant submitted that in coming to these conclusions, the IAA had impugned his account by reference to his entry interview (at [21]):
   1. ... Although the applicant's account at the SHEV interview of the difficulties concerning the foreign exchange issues and the incident in the office appeared plausible, and he mentioned the argument and the fact that basij had been looking for him at the entry interview, he did not explicitly state at the entry interview that the basij had been looking for him because of that argument: in fact, he said that he did not know why the basij were looking for him. Nor did he state that it was specifically because of that incident and the subsequent interest in him by the basij that he had decided to leave Iran; and these particular events were only mentioned at the end of a series of reasons and incidents that he gave for his decision to leave, in which he first referred to the problem with having his degree recognised as one of the main reasons for his departure. This variation in the applicant's account leads me to suspect that he has embellished the significance of the altercation over the currency issue, although I accept that the incident itself occurred.
4. The applicant observed that, at [22], the IAA further referred to a "discrepancy" based upon the applicant's entry interview, namely that "he did not explicitly state that the basij had been looking for him because of the argument; he said that he did not know why the basij were looking for him".
5. The applicant observed that a transcript of the entry interview (Transcript) demonstrates that the evidence given at the interview included the following context (at pp 43-44):

[Interviewer]: Okay, I've got some yes or no questions for you now...

Did the police, security or intelligence organizations impact on your day to day life in Iran?...

[Applicant]: Can I explain it?

[Interviewer]: Just tell me in one sentence, one or two sentences.

[Applicant]: Recently, apparently the Basij, they were coming after me, I was not there, so I don't know what was their purpose, why they were coming.

1. The applicant submitted that it was unreasonable for the IAA to have impugned his evidence at [21]-[22], given the circumscribed context in which his evidence was given during his entry interview. The applicant submitted that the error may also be described as a failure to engage in proper, genuine and realistic consideration of a critical and significant part of the review material as required by s 473DB of the Act.
2. I accept the Minister's submissions as to why this ground is unable to succeed.
3. As the Minister observed, whether or not reliance upon omissions at an entry interview is open to a decision maker depends upon the circumstances of the particular case: see for example MZZJO at [74]-[80]; DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152 at [63]- [64] (McKerracher, Banks-Smith and Jackson JJ); FSE17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 172 at [50]- [58] (Judge Laing) and BIR17 v Minister for Immigration and Border Protection [2019] FCA 850 at [45] (Charlesworth J).
4. The concern of the IAA was not simply that the applicant had not mentioned details of his claims at the entry interview upon which he later relied. The IAA was concerned that the applicant had given inconsistent evidence regarding the extent of his knowledge regarding the purposes of the Basij. In particular, the IAA was concerned that the applicant had stated at his entry interview that he did not know why the Basij had looked for him, but had later claimed that this was connected to the altercation in a government office. The applicant had also emphasised other reasons for leaving Iran when questioned during the entry interview, in contrast to the primacy he subsequently gave to the claimed situation with the Basij.
5. I accept the Minister's submission that the IAA's understanding of what had occurred was open on the evidence and that it was open to the IAA to have relied upon this contrast in the presentation of the applicant's claims. At the entry interview, the applicant had stated that he did not "know what was their purpose, why they were coming" (Transcript p 44). He had emphasised other reasons for leaving Iran, such as the lack of recognition of his qualifications, in response to the question of why he left Iran (Transcript pp 41-43). In contrast, in his subsequent evidence and submissions made on his behalf, the applicant expressly linked adverse interest from the Basij to the altercation over the currency issue (at CB 147, 163). He claimed that the situation with the Basij was the main reason he decided to leave Iran (at CB 111).
6. Within the above context, I accept the Minister's submission that the more likely inference is not that the IAA failed to consider the content of the entry interview in its entirety. Rather, the more likely inference is that the IAA did not expressly refer to the content relied upon by the applicant under ground 1 because it was not considered to be materially relevant to the manner in which the IAA relied upon the interview: not simply as an omission of details, but as an account of the applicant's knowledge of the Basij's motives and his motivations for leaving that undermined his subsequent (and overall) evidence on these subjects. Constrictions upon the applicant's opportunity to provide details at interview did not necessarily bear upon such reasoning.
7. Having regard to the above, I accept the Minister's submission that it was open to the IAA to have relied upon its concerns regarding the entry interview, amongst other concerns, in not accepting the applicant's claims.
8. It follows that ground 1 is unable to succeed.

1. Ground 2 contended that an integer of the applicant's claims was not considered by the IAA.
2. The applicant submitted that his protection claims included that he would be at increased risk due to his imputed religious beliefs and his family being Sunni Muslims. His representative submitted on his behalf (at CB 150-151):

The starting point with respect to the applicant's religious beliefs and level of risk that flows from this is that he is an agnostic or atheist who was brought up a Sunni Muslim. As the applicant explained, his family continue to practice their Sunni Islamic beliefs secretly. This is consistent with DFAT country information that notes:

"The religious disposition of the Ahwazi community is unclear. Most Iranian Arabs are believed to be Shiites. However, an unspecified proportion of the community follows Sunni Islam."

Sunni Muslims in Iran represent around 5-10% of the population and there is evidence of ongoing discrimination of the Sunni community in Iran. Aljazeera recently noted:

"...Sunni Muslims' rights are being systematically violated in the Islamic republic...

... A perception that the applicant is Sunni is one factor to consider that may heighten the applicants risk of harm" (emphasis added)

1. In a statutory declaration dated 12 July 2017, the applicant referred to his family being "Sunni Muslims but they do not publicly show this" (at CB 166). The applicant stated that they had "not had any issues because of being Sunni yet because they do not show they are Sunni" (emphasis added). However, the applicant stated that the government were more likely to think his family were Sunni "because we are Arab".
2. The Delegate considered what he understood to be the applicant's claim that he "fears harm because his family members are Sunni". This claim was also referred to under a heading in the Delegate's decision reading "Assessment - Fear of harm for being a non-practising Muslim and/or having Sunni Muslim relatives" (emphasis added). The Delegate concluded that the applicant did "not have a well-founded fear of persecution on the basis of having family members who practice Sunni Islam" (at CB 179).
3. The applicant's subsequent submissions to the IAA included a submission that factors contributing to his claimed risk of being charged with apostasy included that his "family, albeit not publicly, are Sunni Muslims, (A minority that is persecuted in Iran)" (at CB 211).
4. The applicant submitted that his claims to be at risk because of his family being Sunni Muslims, and perception that he too may be a Sunni Muslim, were not considered by the IAA. I accept the applicant's submissions.
5. I accept, as the Minister submitted, that the applicant's claims regarding his family's religion and his imputed religion related to his claims that he feared harm as an apostate (at CB 146, 151-152 and 211) and on account of his ethnicity (at CB 166).
6. However, I do not accept that the applicant's claims regarding his family's religion and/or his imputed religion were entirely subsumed in his claims to be regarded as an apostate, or within his claims regarding his ethnicity. The applicant had claimed more generally that a "perception that [he was] Sunni... may heighten [his] risk of harm". Although he claimed that his family practised their religion secretly, he clearly considered that their religion was capable of exposing the family to harm. This was reflected in his statement that they had not had issues "yet" on account of their secrecy. The use of the word "yet" communicated a possibility that the family was at risk of experiencing issues on this account in the future. Significantly, the Delegate had understood and identified the applicant as having made a distinct claim to fear "harm because his family members are Sunni": see ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; (2021) 283 FCR 164 at [68]- [72].
7. I do not accept the Minister's submission that the claims that were made by the applicant in this regard were effectively considered and determined by the IAA.
8. I accept that the IAA referred to the religious background of the applicant's family and to the applicant's claim in submissions to face persecution because of "his religion" (at [10]). At [15], the IAA acknowledged that Arabs were subjected to restrictions upon their ability to engage in some cultural and Sunni religious practices. The IAA noted the applicant's claims that his parents were Sunni, but was not satisfied that the applicant faced religious discrimination as a result of not being able to follow Sunni religious practices. This was said to be because the applicant had expressed that he did not wish to follow Sunni religious practices. These findings fed into the IAA's conclusions at [19] that it was "not satisfied that the applicant has suffered discrimination amounting to persecution on account of his Arab ethnicity or for any associated reason".
9. The Minister placed emphasis upon the words "for any associated reason". However, I accept the applicant's submission that [19] was a conclusory summary that followed from the reasoning at [15]-[18]. I am not persuaded that in so reasoning, the IAA considered whether the applicant may be perceived as a Sunni Muslim (by reason of his family's religious practice, or otherwise). This is in circumstances where it is not apparent that the claim was considered or determined in either [19] or the preceding [15]-[18].
10. I accept that the IAA, at [25]-[27], did not accept that the applicant would come to harm on account of being considered an apostate due to his non-observance of Islamic religious practices "coupled with" his relationship in Australia with a Christian woman. In so reasoning, the IAA referred to country information indicating that "generally the government does not monitor religious observance" (emphasis added). However, I do not accept that the IAA considered in these paragraphs whether the applicant may be perceived as a Sunni Muslim or at risk on account of his family's religion.
11. The applicant's claims to be at risk of harm on account of his family being Sunni Muslims and his imputed religious beliefs were claims to protection that were required to be considered by the IAA. I am not persuaded that they were considered by the IAA. I consider that, in context, the more likely inference is that the IAA did not expressly determine the claims in question because they were not considered by the IAA.
12. The Minister accepted that if the contended error were found to have occurred, then the requirement of materiality was satisfied. I accept that if the IAA had considered the claims in question, then it is possible that its decision may have been different.
13. It follows that jurisdictional error has been demonstrated under ground 2.

1. For the above reasons, the decision of the IAA will be quashed. The matter will be remitted to the Administrative Review Tribunal for reconsideration and redetermination according to law.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.