CYO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FedCFamC2G 41

(a) when he received the Authority's decision [made on 11 October 2021], he was not legally represented and was struggling with post traumatic stress disorder from:

(i) sexual abuse as a child;

(ii) being on a sinking boat; and

(iii) detention;

(b) he had three immigration interviews and he was confused about which interview happened when;

(c) he has had bad experiences with interviews and he goes blank and panics;

(d) in April 2021, he received a large sentence for criminal offending;

(e) his lawyers told him they would appeal but he would need to pay fees;

(f) it was overwhelming;

(g) the deadline for the application [in the present matter] passed but he didn't know it had;

(h) he couldn't pay so he couldn't appeal;

(i) there was media coverage about his criminal matters;

(j) his mental health deteriorated while he was in prison;

(k) he was on medication and saw a counsellor;

(l) after the interview [with the Authority], he was distressed and told his lawyers he didn't want them to act for him;

(m) he was in custody until January 2025 [after which he was moved to immigration detention];

(n) English is his second language;

(o) when the Authority made its decision, he didn't know he could appeal, as he didn't have advice;

(p) about a year after the Authority's decision [that is, in 2022], a team came to the prison and said he should contact Victoria Legal Aid;

(q) he telephoned them and spoke to a lawyer but they said they couldn't help;

(r) they told me to get a private lawyer but I don't have any money;

(s) VLA referred him to the Asylum Seeker Resource Centre;

(t) he had his first appointment with ASRC on 4 August 2023; and

(u) he filed the present application on 22 December 2023.

1. The applicant also relied on an affidavit affirmed by Hannah Dickinson on 10 October 2025 in which she said:

(a) she is employed by Russell Kennedy, who are providing pro bono assistance to the applicant;

(b) Russell Kennedy filed a notice of address for service for the applicant on 6 August 2025;

(c) previously, the ASRC provided advice to the applicant;

(d) she obtained parts of the ASRC's file relating to the applicant on 24 and 29 September and 9 October 2025;

(e) on 22 June 2023, VLA sent a referral to the ASRC for consideration of a request for Ministerial intervention under s.48B of the Act;

(f) ASRC recommended that the matter be referred to Refugee Legal but they were unable to assist;

(g) on 27 July 2023, the ASRC created a file for the s.48B request;

(h) on 19 September 2023, the ASRC sent the applicant an authority for signature;

(i) he did not respond and they followed up on 10 October 2023;

(j) on 18 October 2023, the ASRC asked the court if the applicant had an existing proceeding, attaching the signed authority;

(k) the court advised that there had been no proceedings lodged by the applicant;

(l) on 5 December 2023, the ASRC provided the applicant [who was still in prison] with draft court documents for signature;

(m) the ASRC followed up on 20 December 2023; and

(n) on 21 December 2023, the applicant filed his application to this court [with no reference to the ASRC].

1. The applicant also relied on the affidavit sworn by Caitlin Kamala Caldwell on 10 October 2025. She said that:

(a) she was employed at the ASRC;

(b) the ASRC provided legal advice to the applicant between 2023 and 2025, beginning on 4 August 2023;

(c) from 4 August 2023 until 18 September 2023, the instructions to ASRC were that the applicant had a pending proceeding in this court.

1. The applicant also relied on a report dated 2 March 2021 from a psychologist. It was addressed to Michael Gleeson and Associates, who I understand to be the applicant's criminal lawyers. The report confirmed that the applicant suffered from PTSD caused by his experiences at sea and physical and sexual abuse in his homeland.
2. The applicant submitted that there was a cogent explanation for the delay, consisting of him being in prison, being mentally unwell, being unrepresented, seeking assistance, but the ASRC being under the misapprehension for a couple of months that he had already filed a proceeding in this court.
3. The Minister submitted that the explanation for the delay was unsatisfactory.
4. The Minister noted that the bulk of the applicant's explanation was that he did not have the benefit of legal advice, but that there are many authorities to the effect that a lack of legal advice is not a sufficient explanation for failing to file an application.
5. I also note that the applicant was assisted by Refugee Legal to lodge his SHEV application on 7 March 2017: paragraph 32 of the Authority's reasons for decision. At the time of the delegate's interview, on 25 June 2021, he was represented by Carina Ford on a pro bono basis: paragraph 34 of the Authority's reasons for decision. Carina Ford continued to act for the applicant at the time of the Authority's review and in particular at the time of the Authority's attempt to interview the applicant on 21 September 2021. However, the applicant's lawyer, shortly after the interview began and after a brief break, said that the applicant did not wish to proceed with the interview. As the applicant noted in his affidavit sworn on 25 September 2025, he did not want Carina Ford to act for him any more. Her firm emailed the Authority on 22 September 2021 saying that they were no longer acting for the applicant.
6. In other words, the applicant could have had the benefit of Carina Ford acting for him at the time of the Authority's decision, but he had sacked her shortly prior.
7. The Minister also noted that the effect of the Dickinson and Caldwell affidavits was that, as of June to August 2023, the applicant's instructions were that he had an application pending in this court. However, the Minister submitted, that did not square with the applicant's own evidence that he did not know that he could appeal the Authority's decision to this court.
8. In relation to the applicant's health conditions, the Minister submitted that the applicant did not explain how they affected his ability to lodge an appeal in a timely manner. That was particularly significant, the Minister submitted, because the applicant was able, at virtually the same time, to lodge an appeal in relation to his criminal proceedings.
9. In reply, the applicant relied on his affidavit affirmed on 21 December 2023. The applicant acknowledged that, generally, lack of legal assistance might not be an acceptable reason for not filing an application to this court. However, the applicant submitted, in the present case there were the compounding difficulties of a lack of legal advice, imprisonment, mental ill-health and difficulty funding his criminal appeal.
10. The explanation for the delay is inadequate. The applicant could have had pro bono legal assistance from Carina Ford. However, for unknown reasons, he chose to sack her. Being in prison did not prevent him from appealing his criminal conviction and sentence. There is no reason to believe that being in prison would have prevented him from lodging an application to this court. Similarly, the applicant's mental health difficulties did not prevent him from lodging his criminal appeal, so it is difficult to see how they could have prevented him from lodging an application to this court. The need to fund his criminal appeal would have had no bearing on the applicant's ability to commence proceedings in this court, because Carina Ford was acting for him pro bono until he sacked her.
11. The cumulative effect of the various matters identified by the applicant is also not an adequate explanation for the delay. The matters, taken all together, do not amount to a reasonable explanation for the delay, because none of the matters are of any major significance.

1. The Minister conceded that he would not be specifically prejudiced by an extension of time being granted in this matter. However, he noted that there is a public interest in public law matters being resolved in a timely and efficient manner. The Minister submitted that allowing migration proceedings to be commenced well out of time causes prejudice to that legitimate public interest.

1. The Minister observed that the High Court, in Plaintiff M27 v Minister for Immigration and Multicultural Affairs (2025) 425 ALR 481; (2025) 99 ALJR 1495; [2025] HCA 40, held that a delay of six or seven months would require something exceptional for an extension of time to be granted, even if jurisdictional error had been found. Having said that, the Minister was unable to point to any cases where a court had refused an extension of time in a refugee matter in circumstances where the court was satisfied that a jurisdictional error had occurred. In any event, I now turn to the substantive application.

1. In his written submissions, the Minister provided the following background to this matter:
   1. The applicant is a citizen of Iran. He arrived in Australia by boat, as an unauthorised maritime arrival, on 17 March 2013 (CB 478).
   2. On 1 March 2017, the applicant applied for the visa (CB 22-72). The applicant's claims were set out in a statutory declaration dated 21 February 2017 (SHEV statement) (CB 64-68).
   3. On 20 June 2018, the applicant attended an initial interview with a delegate. The processing of the applicant's visa was paused while the applicant was subject to a criminal prosecution.
   4. On 29 April 2021, the applicant was convicted and sentenced for offences relating to the importation of more than 10kg of opium into Australia. He was sentenced to 7 years imprisonment with a 5 year non-parole period (CB 111).
   5. On 25 June 2021, a delegate conducted a further interview with the applicant. The applicant sought to postpone that interview (CB 188, 197), having successfully postponed an earlier interview on 1 June 2021 (CB 173-177), but the delegate refused (this issue is discussed in more detail below). The applicant's representatives provided post-interview submissions to the delegate (CB 215-228) supported by detailed country information (CB 229-472).
   6. On 9 August 2021, the delegate decided to refuse to grant the visa (CB 478-499). The matter was subsequently referred to the Authority for fast-track review under Part 7AA of the Act.

1. The applicant summarised his claims in paragraph 4 of his written submissions as follows:

For the purposes of this application, it is relevant that the Applicant's claims across these materials included that he:

• 4.1 Had rejected Islam, and identified as Christian.
• 4.2 Had numerous tattoos. Some he had gotten before his arrival in Australia and some thereafter.
• 4.3 Suffered from symptoms of post-traumatic stress disorder.
• 4.4 Had not undertaken his compulsory military service.
• 4.5 Did not have Iranian travel documents.
• 4.6 Had been convicted and sentenced for drug trafficking offences in Australia. This offending had been the subject of news reports identifying the Applicant.

(a) his application filed on 22 December 2023 and amended on 24 September 2025 ("the application");

(b) his affidavit affirmed on 21 December 2023;

(c) his written submissions filed on 24 September 2025;

(d) his affidavit sworn on 25 September 2025;

(e) the affidavit sworn by Hannah Dickinson on 25 September 2025;

(f) the affidavit sworn by Caitlin Kamala Caldwell on 10 October 2025;

(g) the affidavit affirmed by Hannah Dickinson on 10 October 2025; and

(h) the court book filed on 15 February 2024.

(a) his written submissions filed on 8 October 2025; and

(b) the court book filed on 15 February 2024.

1. The first ground of review in the application is:

The Authority misconstrued and so constructively failed to consider the Applicant's

claim to face harm in Iran as a result of having tattoos.

Particulars

a. The relevant reasons of the Authority are at CB 28-9 [69] and [73].

1. Paragraph 69 of the Authority's reasons for decision is as follows:

With regards to the applicant's tattoos, while he initially claimed he felt he may face harm because of his tattoos he presented as not so certain in his SHEV interview. I accept the applicant received his first tattoo of an Angel in Iran and that his parents know of this. I accept that he has obtained more tattoos while in Australia. I, like the delegate, find the applicant's evidence about being taken to the police station and beaten about his tattoos unconvincing especially since this was not raised in his initial SHEV application.

(emphasis added by the applicant)

1. Paragraph 73 of the Authority's reasons for decision is as follows:

Given the prevalence and popularity of tattoos in Iran, especially Tehran, that it is women more likely to be targeted and there are no dress code violations for men, that I have not accepted the applicant previously came to the attention of the authorities because of his tattoo, that the applicant is not a political activist, that it is not apparent his tattoos are 'obscene or nasty', I am not satisfied the applicant faces a real chance of any harm on the basis of his having tattoos.

(emphasis added by the applicant)

1. In his written submissions, the applicant said in relation to ground 1:
   1. As can be seen, the Authority rejected the Applicant's claim that he had previously been mistreated by the Iranian authorities 'especially' because it believed he had not raised this claim in his SHEV application. That rejection in turn formed part of the basis for its conclusion that he did not face harm in Iran because of his tattoos.
   2. However, the Authority was mistaken. In his statutory declaration dated 21 February 2017, which was part of his SHEV application, the Applicant declared:

I had already had a tattoo on my arm whilst in Iran and have since obtained more tattoos. When I was approximately 15 or 16, on two separate occasions I was stopped by police in Iran whilst wearing a short sleeved shirt as my tattoo was visible. I was then taken to the police station and beaten. I have since been made to understand that it contrary [sic] to Islam to have tattoos and I feel that I may face harm because of my tattoos.

1. Accordingly, the Authority misconstrued the evidence before it, and that misconstruction was material to its rejection of the Applicant's claim.

1. The Minister argued that the last bullet point in paragraph 24 of the Authority's reasons for decision shows that it was aware that the applicant claimed in his SHEV statement that he had been taken to the police station and beaten on two occasions because of his tattoos. That bullet point, which was part of the Authority's summary of the claims made in the applicant's SHEV application, stated:

In Iran he already had a tattoo on his arm, and he has since obtained more tattoos. On two separate occasions in Iran when he was approximately 15 or 16 the police stopped him because his tattoos were visible. He was taken to the police station and beaten. He has since been made to understand tattoos are contrary to Islam and he may face harm because of his tattoos.

1. Similarly, the Minister noted that, in the first sentence of paragraph 69 of its reasons for decision, the Authority acknowledged that the applicant "initially claimed he felt he may face harm because of his tattoos". The reference to "initially" meant at a time before the applicant's SHEV interviews, so it must have been in his SHEV application.
2. The Minister argued that the Authority in paragraph 69 of its reasons for decision should be understood to have meant what the delegate meant, namely, that the applicant did not raise the issue of being beaten for several days in his SHEV application, but only later, in his SHEV interview.
3. In other words, the Minister argued that the Authority left out a few words from paragraph 69 of its reasons for decision, and what it really meant was:

I, like the delegate, find the applicant's evidence about being taken to the police station and beaten [for several days] about his tattoos unconvincing especially since this [the claim of being beaten for several days] was not raised in his initial SHEV application.

1. However, that does not sit well with paragraph 73 of its reasons for decision, where the Authority said:

I have not accepted the applicant previously came to the attention of the authorities because of his tattoo ...

1. That can only have been a reference to the statement in paragraph 69 of the Authority's reasons for decision that:

I, like the delegate, find the applicant's evidence about being taken to the police station and beaten about his tattoos unconvincing ...

1. In other words, the Authority's conclusion about the tattoos was that he did not come to the attention of the authorities at all, not that he was not beaten for several days. It follows that the Minister's interpretation of the relevant passage is not sound.
2. I consider that the Authority meant what it said in paragraph 69 of its reasons for decision. In that paragraph, the Authority clearly stated that "this", meaning the claim of being taken to the police station and bashed, was not raised in the applicant's SHEV application. In paragraph 69 of its reasons for decision, the Authority said nothing about the claim that the applicant was held for several days.
3. The Authority made an error in paragraph 69 of its reasons for decision, by saying that the applicant had not made the claim of being beaten by the authorities because of his tattoos in his SHEV application when he clearly had made such a claim.
4. In the event that the court found that the Authority made that error, the Minister argued that the error was an error of fact within jurisdiction.
5. The authorities show that, where an error of fact results in the decision-maker not considering the claim as made, it will be a jurisdictional error. For example, in Sidhu v Minister for Immigration and Anor [2017] FCA 889, Derrington J said:
   1. It must be kept steadily in mind that there is an important distinction between an error of fact within jurisdiction which is not reviewable on appeal, and an error of fact which will amount to a jurisdictional error (for Tribunal's decision fell into jurisdictional error, it is not for the Court to re-examine the merits of the exercise of the discretion to cancel the appellant's visa. That the Parliament has intended to entrust the merits of the decision to the province of the Tribunal is clear from section 474 of the Act ...
   2. The authorities are patently clear that an appellant wishing to disturb a Tribunal's decision must identify something more than a merely erroneous finding of fact. ...
   3. ... The Act ... requires that the Tribunal consider any "substantial and clearly articulated argument relying upon established facts" (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]). A failure to do so will amount to a constructive failure to exercise jurisdiction, which is a constructive failure to carry out the review required by the Act ... As well as failing to consider a claim altogether, if the Tribunal makes an error of fact in "misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error" (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at 20, [63]).
   4. In an attempt to draw a bright line between impermissible merits review and legitimate judicial review, a line of authority emerged identifying a distinction between an error of fact that has resulted in the claim itself being misunderstood or misconstrued, and an error that can be simply limited to a single item of evidence.
6. Derrington J then referred to the decision of North and Lander JJ in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] where their Honours said:

However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.

1. In the present case, the relevant claim was that the applicant in the past had been beaten by the authorities because of his tattoos and might be again. The Authority considered this issue as follows:
   1. With regards to the applicant's tattoos, while he initially claimed he felt he may face harm because of his tattoos he presented as not so certain in his SHEV interview. I accept the applicant received his first tattoo of an Angel in Iran and that his parents know of this. I accept that he has obtained more tattoos while in Australia. I, like the delegate, find the applicant's evidence about being taken to the police station and beaten about his tattoos unconvincing especially since this was not raised in his initial SHEV application.
   2. Iran's laws and religious rules don't forbid tattooing except in particular conditions. The only punishable tattoos are the ones that contain obscene or nasty images on the face or the visible parts of the body such as hands and arms. Those who have these types of tattoos will be charged of hurting public chastity. Religiously, the majority of jurists believe that tattooing is forbidden if it physically harms the person, endangers his health or contains obscenities; it is allowable otherwise.
   3. According to DFAT, tattoos are increasingly popular among young Iranians and young men with visible tattoos are common in Tehran. While tattoo artists are regularly arrested, fined, lashed or imprisoned, tattoos remain immensely popular among young people including young woman. A tattoo artist recently described the younger generation as 'the tattoo generation.' Some citizens, especially women, have reported that the "moral police", a branch of the Iranian Police, persecutes those who wear tattoos to arrest or punish them. Even so, in spite of the persecution and the annoyance of the authorities, the tattoos will continue circulating in Iran.
   4. International and domestic observers agree that 'men are subject to less strict controls on personal appearance than women. Some men have claimed to have been discriminated against on the basis of their dress - for example, for having 'Western-style' hairstyles or clothing styles, visible tattoos, or visible hair removal. Notwithstanding such reports, it is common to see young men fitting all of the above descriptions on Iranian streets, particularly in larger cities such as Tehran. DFAT assesses that where there have been incidents of harassment of men for violating the dress code, it is likely to have been the result of either over-zealous enforcement by individual security authorities in particular locations (particularly outside of major cities), or because the individual has come to the attention of authorities for separate activities, particularly political activism. DFAT assesses that the people of 'Western' appearance, including those with visible tattoos, face a low risk of official and societal discrimination. There are no penalty dress code violations for men and for women either imprisonment for not wearing proper hijab is ten days to two months imprisonment or a fine of up to 20AUD. Penalties are very rare.
   5. Given the prevalence and popularity of tattoos in Iran, especially Tehran, that it is women more likely to be targeted and there are no dress code violations for men, that I have not accepted the applicant previously came to the attention of the authorities because of his tattoo, that the applicant is not a political activist, that it is not apparent his tattoos are 'obscene or nasty', I am not satisfied the applicant faces a real chance of any harm on the basis of his having tattoos.

1. The Authority examined a good deal of country information, and, largely on the basis of that country information, concluded that the applicant had not previously been beaten by the authorities because of his tattoo, and did not face a real chance of being harmed in the future because of his tattoos.
2. The Authority considered the claim as made. It follows that the error was an error of fact within jurisdiction. Ground 1 is not arguable.

1. The second ground of review in the application is:

In assessing the Applicant's claims, the Authority failed to consider the possibility that the Applicant would not voluntarily return to Iran.

Particulars

a. The relevant reasons of the Authority at CB 636 [103]-[104].

1. Paragraphs 103 to 104 of the Authority's reasons for decision are:
   1. Iran has a global and longstanding policy of not accepting involuntary returns. Historically, Iran has refused to issue temporary travel documents (laissez-passers) to facilitate the involuntary return of its citizens from abroad. In March 2018, Iran and Australia signed a Memorandum of Understanding on Consular Matters. This includes an agreement by Iran to facilitate the return of Iranians who arrived after March 2018 who have exhausted all legal and administrative avenues to regularise their immigration status in Australia. A laissez-passer can be obtained from an Iranian diplomatic mission on proof of identity and nationality.
   2. As such, if the applicant were to return Iran, I consider it would be as a voluntary returnee. From DFAT's anecdotal observation at airports, a voluntary returnee does not attract much interest from authorities amongst the large regular international movements of Iranians. Returnees will generally move quickly through airports without official interests. DFAT notes returnees even if traveling on a temporary travel document will only be questioned if they have done something to attract the attention of the authorities such as committing a crime in Iran before departing.

1. In written submissions, the applicant developed this ground to say that the Authority was obliged to consider what might happen to the applicant if he did not return voluntarily to Iran, and whether he might become stateless. In oral submissions, the applicant said further that the Authority had to consider whether the applicant, after refusing to return to Iran voluntarily, might face indefinite detention in Australia.
2. The Authority did not have to consider any of those issues. All it had to consider was what might happen to the applicant if he returned to Iran. The Authority considered that the only way that the applicant could realistically return to Iran was if he returned voluntarily. It considered what might happen to him if he returned voluntarily. That was as much as it needed to do.
3. The prospect of indefinite detention in Australia has nothing to do with the question before the Authority, which was, might the applicant face serious or significant harm if he returned to Iran?
4. There was no reason to suppose that the applicant might become stateless, so it was unnecessary for the Authority to consider that question.
5. In support of this ground, the applicant relied on CLS15 v Federal Circuit Court of Australia (2017) 72 AAR 502; [2017] FCA 577 to say that the Authority was obliged to consider what would happen to the applicant if he returned to Iran involuntarily. However, CLS15 does not stand for that proposition. CLS15 said that, in that case, the Tribunal erred because it did not unambiguously answer the question of whether the applicant could be forcibly returned to Iran and, if so, it did not deal with a claim that he made that he would be harmed because he had been forcibly returned.
6. The Authority in the present case did not make that mistake. The Authority did unambiguously deal with the question of whether the applicant could be returned involuntarily to Iran. The Authority said that the only way that the applicant could return to Iran was if he returned voluntarily. The applicant in the present case did not claim that he would be harmed because he was returned involuntarily, so the Authority in the present case did not need to consider that question.
7. As I write these reasons for judgment, there are protests in Iran which the media is describing as the most significant challenge to the Iranian government since the revolution in 1979. There is presently a possibility that the existing regime will fall, and Iran will no longer refuse to accept involuntary returnees. However, that prospect was not reasonably foreseeable when the Authority made its decision in this matter on 11 October 2021. Therefore, the Authority did not need to consider it.
8. Ground 2 is not arguable.

1. The third ground of review in the application is:

The Authority failed to discharge its statutory task of conducting a review of the merits of the Applicant's claims; further or in the alternative, it unreasonably failed to exercise its discretion under s 473DC to get new information from the Applicant; further or in the alternative, it erred in the exercise of that discretion by seeking new information from the Applicant only with respect to one of his claims.

Particulars

1. The reasons of the Authority at [3]-[23] summarise the steps taken by the Authority and its reasons for taking those steps.

1. Paragraphs 3 to 23 of the Authority's reasons for decision are as follows:
   1. I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act).
   2. On 1 September 2021 the IAA received an email from the applicant's representative which contained two submissions. The first submission 'IAA submission' provides legal argument in response to the delegate's findings and which I have considered. The second submission is titled 'New Information' and contains 'Annexure 1.'
   3. The IAA submission provides background information regarding the applicant's SHEV interview with the delegate on 25 June 2021 and submits the applicant was not given procedural fairness in relation to the conduct of the interview. On 22 June 2021, the Department invited the applicant to an interview and stated his then representative ceased to act for him due to a conflict of interest and he had to seek alternative representation. In addition, the applicant was recently transferred to another prison. It was explained to the delegate prior to the interview that, the applicant was not in a position to undertake the interview. On 23 June 2021, the applicant's new representative went on the record to represent the applicant on a pro bono basis given his circumstances and requested the interview be postponed.
   4. The submission states that on 24 June 2021 the Department advised the interview would proceed without providing a substantial basis for the reason for refusal and advised a copy of the applicant's file would be provided prior to the applicant's interview. At the time of the interview, a copy of the file had not been provided and the legal representative once again requested a postponement. According to the representative, the delegate refused this request without providing a substantial reason.
   5. Furthermore, the representative notes there were significant audio issues for the majority of the interview. The delegate noted that he was only able to conduct the interview by telephone as the applicant was in custody. The prison mobile phone was locked in a box in front of the applicant and the applicant expressed numerous times throughout the interview that he was unable to hear the delegate properly and expressed his frustration with the interview and interview method.
   6. They further note that prior to the interview, the applicant had to undergo transitional quarantine arrangements when he transferred to the new prison (Annexure 1). The representative requested the IAA exercise its discretionary powers under s473DC of the Act and invite the applicant to an interview given his limited capacity to undertake the interview on 25 June 2021.
   7. The New Information submission discusses Annexure 1 which is an extract of a file note from the Loddon Prison Case Management Review Committee confirming on that date the applicant had been transferred to another prison and was completing an eight-day transitional quarantine period. Pursuant to s.473DD of the Act, they submit this information could not have been provided prior to the decision being made. They submit on 28 June 2021 a request was made to the Department of Justice to access this information through the Freedom of Information (FOI) and this information was not received until 23 August 2021. I am not convinced this file note is new information, rather it seems to be supporting the request for an interview and argument as to why the decision is wrong; that the applicant was not afforded a meaningful opportunity to present his case.
   8. They submit there are exceptional circumstances to justify considering this new information as it is relevant to the applicant's state of mind and mental health at the time of the interview and supports the contention the applicant should be afforded an interview. Spending eight days in quarantine which consisted of isolation and distancing is relevant to the applicant's capacity to explain at length and articulate his feelings toward his faith which ultimately led the delegate to find the information he provided was 'simplistic'. Had the delegate been provided with this information, it is likely he would have come to a different conclusion in relation to the applicant's faith or rescheduled the interview providing the applicant with procedural fairness.
   9. Annexure 1 records the applicant's name and date of birth. It states that he is currently in Lauriston Unit completing eight days transitional quarantine and will progress to an alternative Loddon Unit when suitable. While there is no information to indicate the FOI was released on 23 August 2021, I am prepared to accept the representative did not receive this document until after the decision was made. Furthermore, given the document is specifically about the applicant and it details he was in quarantine prior to his SHEV interview, I am satisfied it is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims. As noted above, I am not certain that this file note is new information as the term is properly understood (rather than argument and matters going to process). Even if it could be considered new information, the requirements of s.473DD(a) and (b) are met. I am satisfied there are exceptional circumstances to justify considering Annexure 1 and the factors leading up to the SHEV interview including the applicant's time spent in quarantine.
   10. I have listened to the audio recording of the SHEV interview conducted on 25 June 2021, the applicant's second interview with the Department. A different delegate interviewed the applicant on 20 June 2018 when he was at Ravenhall Correctional Centre. As noted in the delegate's decision, processing of the applicant's claims was paused due to criminal charges which were pending a final outcome and sentencing. Given the time period lapsed since that time, a follow up interview was conducted on 25 June 2021 in order to afford the applicant procedural fairness.
   11. At the beginning of the interview on 25 June 2021, the representative noted she had not yet received a copy of the applicant's file and it was difficult to represent him, she also noted the applicant had some concerns about the interview proceeding. The applicant stated the mobile phone was in a box and he couldn't hear anything, the prison officer observed he was being fussy; it was prison policy the phone had to be in the box. The delegate told the applicant that if he did not understand him to ask him to repeat the question or ask him to say it in a different way. The applicant's voice is at times difficult to hear but having listened to the recording twice I was able to understand his responses and most of this was also recorded in the delegate's decision.
   12. I note the representative had not received the applicant's file, that the applicant specifically stated he could not hear every word of the delegate's, that the applicant had just completed eight days quarantine and had been transferred to a new prison, I am satisfied there are exceptional circumstances to justify considering Annexure 1 and the factors leading up to the SHEV interview including the applicant's times spent in quarantine. Taking these matters into account, the IAA decided to exercise its discretion under s. 473DC(3) of the Act and invite the applicant to given new information at interview on 21 September 2021 about his conversion to and practise of Christianity. The interview was scheduled to be conducted by telephone because of COVID 19 restrictions and the unavailability of suitable video conferencing facilities in the prison.
   13. On 21 September 2021 the IAA called the applicant at Loddon prison. An interpreter in the Persian language and his representative was also present on the phone line. The IAA began explaining the process of the interview to the applicant and the role of the interpreter. The applicant spoke in English and asked whether the IAA had permission from the Executor. The applicant then requested the IAA Reviewer's name, which was given, and asked whether there was a business name and an ABN for the IAA. The Reviewer attempted to explain the IAA was conducting a review of his application and the representative also tried to clarify. Again, the applicant questioned whether permission had been sought from the Executor. At the request of the representative, the Reviewer switched of the recording and left the room allowing her some time to discuss the matter with the applicant. After the Reviewer returned to the room, the representative stated the applicant had instructed her that he did not want to proceed with the interview. The Reviewer confirmed this with the applicant and the interview was concluded.
   14. On 22 September 2021 the representative advised the IAA they were no longer acting for the applicant.
   15. On 23 September 2021 the IAA contacted the applicant by way of fax and email advising him that an email from a third party 'J' had been received on 20 September 2021 and that it appeared to relate to his IAA case. The author does not otherwise identify themselves, but it appears they may have a relationship with the applicant. The IAA asked the applicant for confirmation that he wished for this to be considered by the IAA.
   16. On 30 September 2021 the IAA received another email from 'J'. It includes the email received from J on 23 September 2021 and further detail. It is unclear whether the applicant is aware of the content of the email and it is not entirely clear whether it has been authorised on the applicant's behalf. There has been no direct communication from the applicant to endorse this communication and email.
   17. Much of the content of the email is not easy to follow. Parts appear to relate to the applicant's protection claims regarding Christianity, mental health, and more broadly Iran and the Iranian authorities. There are also references to the delegate and some presents as argument in response to his findings and the decision and questioning the status of the IAA and what appears to be matters relating to the disclosure of information. There is also a lot that does not appear directly related to either the applicant's claims or the decision under review. Some of content appears to be grievances voiced on the applicant's behalf including the quality of the food in prison. On the information before me, apart from the country information below, no new claims or new information (in the relevant sense) regarding his claims is apparent to me or has been identified by J.
   18. There are nine links to country information, no extracts from these links have been provided or identified as having relevance to the applicant's claims. The first three appear to be from the Iran Human Rights website. The fourth is from 'The Federalist', the fifth from ABC News and the sixth from Iran News Update. The seventh is from Iran Primer and contains the 2020 US State Department Report on Human Rights Practices for Iran published in March 2021. The eighth and ninth links are to the Human Rights Watch on Iran for 2018.
   19. From what has been provided all links except that to Iran News Update link published on 2 September 2021, pre-date the delegate's decision. One link is quite dated from 2013 and another from 2015. The applicant's now former representative provided and referred to various country information reports and articles with their post interview submission. Apart from Iran News Update link, I am not satisfied these links or country information contained within these links could not have been provided to the delegate prior to the decision being made.
   20. As the actual information hasn't actually been provided, in the unusual circumstances of this case, I have decided to obtain those sources to determine properly to assess them under s.473DD. While the various links refer to and identify various individuals who have experienced mistreatment at the hands of the Iranian authorities none of the information appears to relate personally to the applicant. There are country information reports or articles in the review material that are more relevant to the applicant's claims and I am not satisfied this information constitutes credible personal information which was not previously known and had it been known may have affected the consideration of the applicant's claims. Neither limb of s.473DD(b) is met in relation to these links except for the Iran News Update link published in September 2021.
   21. The Iran News Update link contains a summary of repression and human rights violations in Iran in August 2021 including executions, arrests, those tortured and subject to arbitrary. The link includes the name and age of several individuals but the applicant himself is not identified or identifiable. I am not satisfied this information constitutes credible personal information in the relevant sense which was not previously known and had it been known may have affected the consideration of the applicant's claims. Section 474DD(b)(ii) is not met. Given there was other general country information in the referred material with similar content which also evidenced the poor human rights situation in Iran, I am not satisfied there are exceptional circumstances to justify considering this new information.
2. In his written submissions, the applicant explained ground 3 as follows:
   1. In summary: the Department failed to give the Applicant or his representatives an opportunity to prepare for the interview. It failed to give the Applicant's representatives his file, or any other documentation prior to the interview. It conducted the interview some three years after an earlier interview before a different delegate. The interview was beset by recurring technical difficulties. The sum of these factors is that the Applicant was not given an opportunity by the Delegate to articulate his claims as they stood at the time of the Delegate's deliberation and decision.
   2. So much was evidently accepted by the Authority, and as a result it decided to interview the Applicant. However, the interview that took place did not overcome the problems identified. First, unlike the interview with the Delegate, which was for the purpose of the Applicant discussing his application and claims generally, the Authority's interview had a confined purpose, per its invitation:

You are invited to attend an interview to provide the following new information

• Your claims regarding your conversion to and practise of Christianity

1. In the event, the interview was very brief and completely insubstantial, in part because of the Applicant's evident confusion about its purpose. As the Authority explained:

On 21 September 2021 the IAA called the applicant at Loddon prison. An interpreter in the Persian language and his representative was also present on the phone line. The IAA began explaining the process of the interview to the applicant and the role of the interpreter. The applicant spoke in English and asked whether the IAA had permission from the Executor. The applicant then requested the IAA Reviewer's name, which was given, and asked whether there was a business name and an ABN for the IAA. The Reviewer attempted to explain the IAA was conducting a review of his application and the representative also tried to clarify. Again, the applicant questioned whether permission had been sought from the Executor. At the request of the representative, the Reviewer switched of the recording and left the room allowing her some time to discuss the matter with the applicant. After the Reviewer returned to the room, the representative stated the applicant had instructed her that he did not want to proceed with the interview. The Reviewer confirmed this with the applicant and the interview was concluded.

1. The day after the interview the Applicant's representatives ceased acting. In the following week the Authority received voluminous emails, which the Authority described as 'not easy to follow', from a third party purporting to make representations on the Applicant's behalf - though it was unclear whether the Applicant was aware of or endorsed those submissions.
2. In these unusual circumstances, the Authority's interview with the Applicant did not overcome the lacuna in the case before it occasioned by deficiencies in the process before the Delegate. The Authority therefore failed to discharge its statutory task. Further or in the alternative, it erred by confining the potential scope of the interview to a single aspect of the Applicant's claims (concerning his faith); and/or failing to further exercise its discretion under s 473DC of the Act.

1. The Minister strongly disputed that there was any unreasonableness in the scheduling of the delegate's interview. The Minister noted that:

(a) the delegate conducted an interview in 2018;

(b) visa processing was suspended while the applicant was facing drug charges;

(c) a different delegate conducted a second interview in 2021;

(d) the delegate was under no obligation to have conducted any interviews at all;

(e) in relation to the second interview, the delegate wrote to the applicant on 18 May 2021 inviting him to an interview two weeks later, on 1 June 2021;

(f) on 28 May 2021, Refugee Legal asked for the interview to be postponed because they had only recently been engaged by the applicant;

(g) the delegate postponed the interview;

(h) on Tuesday 22 June 2021, the delegate invited the applicant to an interview on Friday 25 June 2021;

(i) on Wednesday 23 June 2021, Carina Ford advised the delegate that she had recently taken over the matter from Refugee Legal, because they had a conflict of interest, and asked for a further postponement of the interview so they could speak to their client;

(j) the delegate refused to postpone the interview but said that the applicant could provide post-hearing submissions;

(k) following the interview, Carina Ford asked the delegate for an extension of seven days to provide post-hearing submissions; and

(l) the delegate granted the request for an extension.

1. All in all, the scheduling of the second interview was not unreasonable. The delegate gave one adjournment to accommodate the applicant's lawyers. It was not unreasonable to refuse a second adjournment to accommodate the new lawyers, especially where the new lawyers had one full day on 24 June 2024 to speak to their client, and where the new lawyers were given an opportunity to file post-hearing written submissions.
2. The Minister also strongly disputed that the technical issues during the second interview undermined its effectiveness. The Minister noted that:

(a) the Authority noted that it listened to the recording twice and could understand all of the applicant's responses; and

(b) the Authority noted that:

The delegate was patient with the applicant and repeated questions and the applicant's response when necessary and the applicant's representative was present.

1. The applicant provided a transcript of the second interview with the delegate: exhibit 2 to the affidavit affirmed by Hannah Dickinson on 25 September 2025. The applicant did not take the court to any particular parts of it. It shows that the applicant at the beginning of the interview complained that the mobile telephone he was using was inside a box. When it was explained that that was in accordance with prison rules, the applicant appears to have accepted it. The interview proceeded fairly smoothly after that. The transcript shows a couple of points that were inaudible, to the transcriber's ear, but the Authority said that it could understand them, when listening to the tape itself.
2. All in all, there seems to be no basis to conclude that the delegate's second interview was so affected by technical issues that it was not a fair hearing.
3. In any event, the Minister noted that the High Court held in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; 353 ALR 600 at [46] that:

Non-compliance with s 54, 55 or 56 in making the decision under review, the Minister correctly points out, could have no meaningful impact on the quality of review under Pt 7AA given that performance by the Authority of the central task of considering the application for a protection visa afresh must render moot any failure to consider information that may have occurred on the part of the Minister or delegate in making the decision under review.

1. That is, any error in an interview by the delegate is overcome by the review by the Authority.
2. At that point, the applicant argued that the review by the Authority was inadequate, because the Authority's interview:

(a) was only intended to concern the applicant's conversion to and practise of Christianity; and

(b) it only lasted a couple of minutes.

1. The Authority's interview only lasted a few minutes because the applicant said some very strange things about whether the Authority had permission from the executor and whether the Authority had a business name and an ABN and then said that he did not want to proceed with the interview.
2. The applicant cannot now complain that the Authority's interview was "insubstantial" in circumstances where he himself terminated it.
3. Returning to the components of this ground, the Authority clearly conducted a review on the merits. Its reasons for decision show that it considered the matter carefully and thoroughly. Indeed, the applicant has not pointed to anything that the Authority failed to consider in its review.
4. The Authority attempted to exercise its discretion to get new information from the applicant, but he stymied that process.
5. The applicant said it was a jurisdictional error, namely, unreasonable, for the Authority to only seek to interview the applicant about his Christian religion, in the circumstances of this case, being the difficulties with the delegate's interviews. However, as discussed above, those difficulties were not such as to make those interviews inadequate. The Authority was not obliged to attempt to interview the applicant about any other aspects of his claims.
6. Ground 3 is not arguable.

1. The fourth ground of review in the application is:

The Authority failed to conduct a cumulative assessment of the Applicant's claims.

1. This ground is misconceived. The Authority rejected all of the applicant's claims. There was nothing left for the Authority to consider cumulatively. This was explained in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34] as follows:

... as a matter of inexorable logic, ... if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of "cumulative consideration" of those rejected claims is capable of producing a different result.

(a) the applicant does not have a reasonable explanation for the over two year delay in filing his application;

(b) extending time would prejudice the public interest in prompt resolution of public law matters; and

(c) none of the applicant's grounds are arguable,

the application for an extension of time will be dismissed. I will hear the parties on the question of costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.