DAD18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1104

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 Temporary Protection (Class XD) (Subclass 785) visa (protection visa).
2. For the following reasons, I consider that I am obliged to dismiss the application before the Court.

1. The applicant is an Iranian national who arrived in Australia in 2012. On 2 March 2016, the applicant applied for the protection visa that is the subject of this proceeding.
2. On 13 July 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
3. On 8 May 2018, the IAA affirmed the Delegate's decision.

1. The IAA observed that new information had been provided to it after the Delegate's decision, in the form of a purported Summons (and its translation) relating to the applicant's brother. The IAA was not satisfied that the information could not have been provided prior to the Delegate's decision and did not accept that it comprised information that was believable. The IAA was also not satisfied that exceptional circumstances justified consideration of the information. Having found that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were not met in relation to the information, the Tribunal expressed that it would not be considered in relation to the review (at [3]-[8]).
2. The IAA summarised the applicant's protection claims at [9]-[25] of its decision, which were considered at [26]-[68] of its decision.
3. At [69], the IAA summarised the applicant's claims that had been accepted:
   1. Based on the totality of the evidence before me and the cumulative considerations above, I am satisfied that the applicant is a national of Iran and:
      1. he is of Arab ethnicity and from [the claimed area of] Iran, where his parents and sister continue to reside
      2. he has multiple siblings and other relatives in Australia who have either sought or obtained asylum
      3. his brother... had an adverse profile in Iran prior to 2010 in connection with his participation in Arab protests

d. he had three brothers who are now deceased

e. he does not believe in or practice any religion

1. he has been cautioned by the Basij in the past in connection with the volume of his music, style of his hair and tint of his car windows

2. he is exempt from military service in Iran as his three older brothers all served in the Iranian military

h. he will be suspected of having sought asylum in Australia

i. he was included in the Department's data breach in February 2014.

1. At [70], the IAA summarised the factual claims that had not been accepted, as follows:
   1. I am not satisfied that the applicant:
      1. was ever detained or beaten by Sepah, the Basij or any other element of the Iranian authorities, including an Entezami officer, for any reason including his Arab ethnicity and/or the profile of his family or any members of his family
      2. has a real chance of being conscripted to serve with the Iranian Army in Syria or anywhere else
      3. is known to have posted or shared material on social media which is critical of the Iranian regime
      4. has participated in any Arab/Ahwazi political or cultural activities at any time, including in Australia, other than sharing a few posts on Facebook for the sole purpose of strengthening his claims to be a refugee
      5. has any desire or intention to express any political opinions in the reasonably foreseeable future

f. is an actual or perceived Ahwazi Arab activitist

1. is an actual or perceived apostate, atheist, person who insults the Prophet and/or Moharabeh

1. The IAA made further findings at [71]-[80] of its decision under the heading "Refugee assessment", which may be summarised as follows:

(a) although the IAA accepted that reports indicated Ahawzi activists and individuals involved in Arab cultural and social activities perceived as a threat could be of adverse interest to the authorities, the IAA did not accept that the applicant fell within this category or otherwise faced a real chance of relevant harm in connection with being an Ahwazi Arab (at [75]);

(b) the IAA accepted that if the applicant returned to Iran, he would do so on a temporary travel document (at [76]). However, having regard to country information and what had been accepted of the applicant's personal circumstances, the IAA did not accept that (i) the applicant being known or suspected of being a failed asylum seeker who had sought asylum in Australia; (ii) his protracted absence from Iran in a western country; or (iii) having family members who have sought and/or obtained asylum in Australia, gave rise to a real chance of harm to him in Iran (at [77]-[78]);

(c) although the IAA accepted that the applicant's personal details were included in a data breach in 2014, the IAA did not accept that this gave rise to a real chance of harm (at [79]-[80]).

1. The IAA concluded at [82] that the applicant was unable to meet s 36(2)(a) of the Act, having found at [81]:
   1. Based on what is accepted of the applicant's claimed circumstances, I am not satisfied that the applicant faces a real chance of harm in Iran for any of the reasons claimed or arising on the evidence. It follows that I am not satisfied that he faces a well-founded fear of persecution in Iran.
2. Under the heading "Complementary protection assessment", the IAA then reasoned as follows at [85]-[86]:
   1. Based on what is accepted of the applicant's claimed circumstances, I am not satisfied that the applicant faces a real risk of harm rising to the level of significant harm in Iran for any of the reasons claimed or arising on the evidence. It follows that I am not satisfied that he faces a real risk of significant harm in Iran as contemplated by the relevant law...
   2. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
3. On the basis of the above, the IAA affirmed the Delegate's decision.

1. The applicant commenced the current proceeding through an application filed on 8 June 2018. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The following sole ground of review was relied upon:
   1. The Second Respondent (the IAA) applied the incorrect legal test in determining the Applicant's claims against the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958.

Particulars

a) The IAA, at [59] and [70d] of its decision, found that the Applicant had shared Facebook posts containing political videos about the Iranian Government, but that he only did so for the sole purpose of strengthening his claims to be a refugee.

b) At [86] of its decision, the IAA found that the Applicant did not meet the complementary protection criterion in s.36(2)(aa) of the Act because at [85] of its decision, the IAA was 'not satisfied that the applicant faces a real risk of harm rising to the level of significant harm in Iran for any of the reasons claimed or arising on the evidence'.

c) In arriving at the conclusions set out in (b) above, the IAA did not give proper, genuine, and separate consideration to whether the Applicant's political activities on Facebook gave rise to a real risk of significant harm as defined in s.36(2A) of the Act or increased the risk of harm to the applicant. In doing so, it allowed its findings at [59] and [70d] to dictate that no further consideration of the Applicant's political activities on Facebook was required for the purposes of s.36(2)(aa). This was relevant to the IAA's decision to affirm the refusal of the Applicant's visa application.

1. The applicant observed that s 5J(6) of the Act required a decision-maker to disregard any conduct that was engaged in Australia by an applicant for the sole purpose of strengthening their claims to be a refugee, for the purposes of s 36(2)(a) of the Act, in a manner comparable to the previously applicable s 91R(3). The applicant observed that such an exception did not apply to the complementary protection criterion in s 36(2)(aa) of the Act. Failing to consider conduct disregarded under s 5J(6) or s 91R(3) when considering s 36(2)(aa) may amount to error for applying the incorrect legal test in determining the complementary protection criterion: DKN16 v Minster for Immigration and Border Protection [2017] FCCA 2463; (2017) 326 FLR 215 (DKN16) at [62]-[65] (Judge Driver); SZTDM v Minister for Immigration and Border Protection (No.2) [2013] FCCA 2060 at [51]- [76] (Judge Barnes); and SZSNY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1465 (Judge Cameron) at [24]-[26].
2. These propositions were not doubted by the Minister. Where the parties differed, however, was on whether the IAA had made findings in relation to the applicant's social media posts that were dispositive in relation to the complementary protection criterion. As was found in DKN16 at [62] (and other cases), a lack of specific consideration of a claim under the heading of complementary protection "would not matter if it were clear that the [decision maker] had made factual findings which were a complete answer to the claim for complementary protection".
3. In the section of the IAA's decision entitled "Consideration of Facts", the IAA considered at [57]-[60]:
   1. When asked about his Facebook posts he said that he is not active on Facebook but he did post some information about the Iranian Government. When asked if he is still doing this he responded that he is not and that he only posted a few times but the posts were 'automatically removed'. When asked what he means by this he said that after he made the posts he checked if they were there but they were gone. While screenshots of two posts have been submitted as evidence, I cannot be satisfied that they were not removed by the applicant soon after being posted, or that they would be known by the Iranian authorities to have been posted by the applicant.
   2. On the evidence before me the applicant has not demonstrated having any history of political activity or involvement at any point in time. I am mindful that Ahwazi Arab political activity is reportedly monitored supressed in Iran20 and have considered whether the applicant has been discreet in expressing his political views out of fear of persecution. However, despite his protracted stay in Australia at the time of his Protection Interviews, the applicant did not detail an awareness of or involvement in any specific Ahwazi/Arab movements or activities, nor detail any specific opinions he would wish to voice. On the evidence advanced I do not accept that the applicant has participated in any Ahwazi/Arab activities in Australia or in Iran which could be perceived as political
   3. While I accept that the applicant shared videos on Facebook, I find that he did so only to strengthen his claims to be a refugee. I cannot rule out that he removed the posts shortly after capturing a screen shot to support his Protection visa application. I am not satisfied as to the duration that the posts were accessible, nor am I satisfied that were accessed or known to the Iranian authorities.
   4. I am not satisfied that the applicant has political opinions he wishes to express or which he would suppress out of fear of persecution.
4. In a subsequent section of the IAA's decision entitled "Factual findings", as set out above, the IAA made the following findings regarding the claims that the IAA had not accepted (at [70]):
   1. I am not satisfied that the applicant:
      1. was ever detained or beaten by Sepah, the Basij or any other element of the Iranian authorities, including an Entezami officer, for any reason including his Arab ethnicity and/or the profile of his family or any members of his family
      2. has a real chance of being conscripted to serve with the Iranian Army in Syria or anywhere else
      3. is known to have posted or shared material on social media which is critical of the Iranian regime
      4. has participated in any Arab/Ahwazi political or cultural activities at any time, including in Australia, other than sharing a few posts on Facebook for the sole purpose of strengthening his claims to be a refugee
      5. has any desire or intention to express any political opinions in the reasonably foreseeable future

f. is an actual or perceived Ahwazi Arab activitist

1. is an actual or perceived apostate, atheist, person who insults the Prophet and/or Moharabeh

1. The IAA did not, then, expressly refer to the applicant's claims regarding social media posts in the sections of its decision entitled "Refugee assessment" or "Complementary protection assessment". As with other claims that had not been accepted, the IAA appears to have treated these findings as conclusive before proceeding to analyse against the refugee and complementary protection criteria the claims that had not been rejected at the factual level.
2. The Minister suggested that the Court should not be satisfied that the IAA applied s 5J(6) of the Act at all, in circumstances where it did not state that it had applied that provision or that it had disregarded the activity in question. The Minister suggested that the IAA, instead, went on to consider whether the Facebook posts would have come to the attention of the Iranian authorities. It was submitted that there would have been no logical reason to do this if the IAA had disregarded the posts. This was said to have involved error in relation to s 36(2)(a) of the Act. However, the Minister submitted that any such error was not material and was therefore incapable of resulting in jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The Minister submitted that the IAA's approach involved no error in relation to s 36(2)(aa) of the Act.
3. It is apparent that the IAA considered its findings at [70] dispositive in relation to the social media claim, such that it did not need to consider it further in the latter sections of its decision where it found, "[b]ased on what [was] accepted of the applicant's claimed circumstances", that the applicant was unable to meet ss 36(2)(a) or 36(2)(aa) of the Act. Two reasons are apparent from [70] of the IAA's decision. The first is the finding that the applicant had shared a few posts on Facebook "for the sole purpose of strengthening his claims to be a refugee". The second is that the IAA was "not satisfied" that the applicant was "known to have posted or shared material on social media which [was] critical of the Iranian regime".
4. Within this context (and noting that this analysis occurred factually, in a separate section of the IAA's decision from its refugee assessment), it is not clear that the IAA erred in relation to s 36(2)(a) of the Act. In any event, the applicant did not contend that such an error was capable of demonstrating jurisdictional error.
5. The question, then, is whether the IAA's reasoning was dispositive of the applicant's claims in relation to s 36(2)(aa) of the Act, or whether the IAA erroneously (as was submitted by the applicant) disregarded his conduct on account of its assessment relating to s 5J(6) of the Act.
6. I am not persuaded that the IAA considered its finding relevant to s 5J(6) of the Act dispositive in relation to the complementary protection criterion. As the Minister submitted, if the IAA had done so, then it would have been unnecessary for the IAA to have relied upon the second of its findings (namely, that it was not satisfied that the conduct was relevantly known).
7. Both parties submitted that this finding had to be read in the context of [57]-[60] of the IAA's decision, which is set out above.
8. A fair reading of the IAA's reasoning, in this context, appears to have been that:

(a) the only reason the applicant made the Facebook posts was to obtain screenshots to support his case for a protection visa (at [59]);

(b) within this context, the applicant could have made the posts briefly in order to obtain the screenshots before swiftly deleting the posts (at [57] and [59]);

(c) the IAA was therefore not satisfied about the accessibility of the posts (at [59]); and

(d) the IAA was not ultimately satisfied that the applicant was known to have posted the material on Facebook (or that he had any desire or intention to express any political opinions in the reasonably foreseeable future) (at [70]).

1. The applicant did not contend that such reasoning was not open to the IAA. Instead, the applicant contended that it was not dipositive in relation to the complementary protection criterion. This, it was submitted, was because of the level of doubt that attended the IAA's reasoning at [57]-[60]. On account of this, the applicant submitted that the IAA was required to apply the "what if I am wrong" test considered in cases such as Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Rajalingam). If the IAA did not ask (and answer) this question, it was submitted, its findings at [70] were incapable of being dispositive.
2. The Tribunal was not obliged to ask this question, however, if "no real doubt" attended the Tribunal's conclusions: see for example MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441 at [95]- [96] (Keane CJ, Perram and Yates JJ).
3. I accept the Minister's submission that the relevant finding at [70] appears to have been unequivocal. The IAA concluded that it was "not satisfied" that the applicant was "known to have posted or shared material on social media which [was] critical of the Iranian regime". This, together with other claims that were similarly not accepted by the IAA (by reference to the IAA being "not satisfied" of them), informed the IAA's conclusions at [81] and [85] to the effect that, based upon what had been "accepted" (and not accepted) of the applicant's claims, the IAA was not satisfied that the applicant would face a real chance of relevant harm.
4. The IAA's rejection that the Facebook posts were relevantly known does not appear to have been expressed with any real doubt or absence of confidence. Although the IAA had earlier at [59] referred to being unable to "rule out" that the applicant had removed the posts soon after they were posted, this assessment was informed by the IAA's conclusion that the purpose of the posts was only to obtain evidence supporting his protection claims. The IAA's ultimate conclusion at [70] that it was not satisfied the posts were "known" does not appear to have relevantly been attended by doubt. The language used by the IAA (that it was "not satisfied") was consistent with language used elsewhere in the IAA's decision in conclusively determining the applicant's claims. The focus of the IAA's assessment of the relevant criteria then appears to have been informed by the claims that it accepted, or had not rejected, at the factual level. This is consistent with the IAA's language in its conclusions at [81] and [85], where it found that it was not satisfied that the relevant criteria were met "[b]ased on what [was] accepted of the applicant's claimed circumstances".
5. Having regard to the above, in the absence of further development of the applicant's argument, I have not been persuaded that the IAA was required to apply the "what if I am wrong" test in relation to the social media claim.
6. At hearing, the applicant further submitted that the IAA's finding regarding whether the posts were "known" was at odds with the Delegate's finding (at CB 173) that it was a "well-known fact that the Iranian government heavily censors internet sites and pry into Facebook accounts of its citizens". However, no ground has been raised in this regard. In any event, the IAA acknowledged at [58] of its decision information indicating that political activity was monitored and suppressed in Iran. I am not persuaded that it was closed to the IAA to have nonetheless rejected, at a factual level, that the posts would have become known in the circumstances that it contemplated.
7. For the above reasons, I have not been persuaded that the IAA's decision is affected by jurisdictional error.

1. It follows that the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.