DKK18 v Minister for Immigration and Citizenship [2025] FCA 1405

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. This is an application for an extension of time to appeal against the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 26 September 2024: DKK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 954 (primary judgment or PJ). By those orders, the primary judge dismissed an application for judicial review of a decision made by the second respondent, the Immigration Assessment Authority (also IAA). The Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse the grant of a Temporary Protection (subclass 785) visa under s 65 of the Migration Act 1958 (Cth). All further references to legislative provisions in these reasons are to those in the Migration Act unless stated to the contrary.
2. For the reasons that follow, the application for an extension of time must be granted because the appeal that is sought to be brought has sufficient merit. The appeal must be allowed, with costs. The hitherto applicant may therefore properly be referred to as the appellant in these reasons.

1. In February 2013, the appellant, who is a male citizen of Iran, arrived in Australia as an unauthorised maritime arrival. In August 2017, he applied for the visa. Annexed to that application was his statement of claims, which detailed his reasons for leaving Iran and his fears of what may happen to him if he was to return. This included fears expressed as to interrogation, harm by security officers and imprisonment.
2. In November 2017, the appellant attended an interview with a delegate of the Minister. In February 2018, the delegate refused the grant of the visa. The delegate was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa).
3. In February 2018, the delegate's decision was automatically referred to the Authority, pursuant to Pt 7AA. In June 2018, the Authority affirmed the delegate's decision. In July 2018, the appellant sought judicial review of that decision, which was subsequently set aside by consent and remitted back to the Authority for reconsideration. On that remittal, the appellant was legally represented.
4. In July 2023, the appellant's legal representatives furnished to the Authority written submissions, a statutory declaration from the appellant, country information and case law. On 23 August 2023, the Authority again affirmed the delegate's decision (Authority Decision).
5. On 28 September 2023, the appellant filed an application for judicial review of the Authority Decision, followed by a further amended application on 15 May 2024 which contained five grounds of review.
6. On 26 September 2024, the primary judge found that none of the grounds of review had been made out and accordingly dismissed the application. Only the first ground of review is sought to be advanced further on appeal, and accordingly the balance of the primary judge's reasons will not be referred to.

1. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), the appellant had 28 days (being until 24 October 2024) to file a notice of appeal. The appellant did not do so but filed an application for an extension of time and a supporting affidavit on 11 December 2024, being 48 days after the expiry of the 28-day appeal period.
2. The principles applicable to an application for an extension of time are well established. The relevant considerations include the length of the delay, the appellant's explanation for the delay, any prejudice to the respondent and the substantive merits of the proposed grounds of appeal: Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [20] (Perram, Farrell and Perry JJ).
3. In relation to the proposed grounds of appeal, it will often be appropriate to assess their merits at a "reasonably impressionistic level", however there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [17] - [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
4. The parties sensibly agree that the length of delay is neither substantial nor trivial. The appellant explains in his affidavit that the delay had resulted from a combination of events including losing his mobile phone and identification documents, which meant that he could not communicate with the solicitors working on his immigration matter after his arrest and remand in custody on alleged criminal offences. As a result, he stated that he was not aware that his judicial application in the Federal Circuit Court had been dismissed until 27 November 2024, when the solicitors working on his criminal matters enquired about his immigration status. Despite this, the appellant did acknowledge that part of the delay was attributable to him, as he "_did not give any thought to [his] migration matter_s" from June to October 2024 and erroneously believed that his matter "would take many years to reach a conclusion".
5. The Minister submits that none of this properly explains or justifies the delay.
6. The Minister accepted that he would not be specifically prejudiced by the extension of time being granted, but submits that there is prejudice in the general sense, as there is significant public interest in "public law matters being resolved in a timely and efficient manner": Nusipepa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 24 at [14] (Farrell, Burley and Lee JJ).
7. Notwithstanding those submissions, the parties essentially accept that the real question on the extension of time is the merits of the proposed appeal. If the proposed ground of appeal has sufficient merit, the need for an extension of time should not stand in the way of advancing it; but if the ground is devoid of merit, an extension of time would be futile and should not be granted. As the hearing of the application for an extension of time took place at the same time as the hearing of the appeal contingent upon the grant of the extension of time, a more complete assessment of merit as permitted by Katoa was convenient, efficient and appropriate.

1. The draft amended notice of appeal contains a single ground of appeal, maintaining the substance of the first ground of judicial review below, but adjusted to reflect the primary judge's reasons in rejecting the ground, as follows:

The Federal Circuit and Family Court (Court) erred in fact and/or law in failing to find that the IAA failed to consider the applicant's claim or an integer of his claim to fear serious or significant harm on return to Iran for reason of having obtained a passport using a fake military service completion certificate (Certificate)

Particulars

a) The Court erred in fact in finding that:

1. the claim was not clearly articulated or did not clearly emerge from the appellant's submissions, evidence, and country information;
2. the claim did not clearly emerge because it was identified and/or considered by the delegate;
3. the claim did not clearly emerge from the delegate's reasons even if the delegate did not consider the claim;
4. the claim did not clearly emerge from the IAA's own reasons; and/or
5. the claim did not clearly emerge from a combination on (i) - (iv).

b) The Court erred in law:

1. artificially distinguishing between the appellant's claim to fear harm for illegal departure which needed to be considered, and the integer - obtaining a passport by fraudulent means which it held did not need to be considered;
2. in finding that in the absence of positive findings as to the underlying fact that the appellant had fraudulently obtained his passport, Certificate, and not completed military service the delegate and/or IAA did not consider or identify the integer or claim;
3. in descending into the merits of the integer and claim in relying on the fact the appellant may not face harm that would engage Australia's protection obligations or not be held responsible for obtaining the Certificate

1. The crux of the appellant's argument is that the Authority failed to consider whether he faced a risk of serious or significant harm upon return to Iran because he had illegally obtained a passport, through the use of a false military service certificate, as part of the course of conduct which led to him departing Iran illegally on that passport. The appellant submits that this claim clearly emerged from his interview with the delegate, and was understood and considered by the delegate, or alternatively, that it clearly emerged from the Authority Decision. As such, he contends that the Authority was required to consider the totality of his conduct, including the fraudulent procurement of his military service certificate and the harm that could arise from its discovery, independently of the consequences of failing to complete military service.
2. The Minister contends to the contrary that the Authority was not required to consider a claim relating to the consequences or the risk of harm arising from the illegal procurement of a passport, as distinct from the act of illegal departure itself, because the appellant did not make such a claim and it did not clearly emerge from the materials. Although the Minister accepts that the Authority referred to the passport as being obtained in a fraudulent manner, he submits that this was insufficient to give rise to the claim asserted by the appellant to have been made due to further contextual reasons, discussed in more detail at [32]-[33] below.
3. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 (Collier, McKerracher and Banks-Smith JJ), the relevant principles attaching to what is required to be considered by the Authority, in light of the specific and particular legislative regime that applied to it, were conveniently summarised as follows at [18]:

It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

• The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

• The Tribunal is only required to consider such claims where they are either:

  (a) the subject of substantial clearly articulated argument, relying on established facts; or

  (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

• These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

(Emphasis added.)

• As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

[37] While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

[38] Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on "established facts". At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must "emerge clearly from the materials before the Tribunal and should arise from established facts". I agree with the primary judge's approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

The way in which the claim in dispute did, or did not, emerge

1. The substance of the dispute turns on the interpretation of the material from which the part of the appellant's claim in dispute either clearly emerged as the appellant contends, or went no further than being something that might, on one view, be said to arise as the Minister contends. The source material framing the extent of the claim, read together, includes:

(a) key parts of the original visa application;

(b) the statement of claims furnished by the appellant;

(c) the interview by the delegate;

(d) the delegate's reasons; and

(e) the Authority Decision.

1. It is convenient to reproduce the passages relied upon by each side from those sources, many of which are in common; to record the interpretations in aid of the competing arguments that follow each segment; and then to address the arguments as to whether the claim the appellant asserts had been raised at each stage after the original visa application and accompanying statement of claims. The application and statement of claims are also briefly considered for context.

1. The Minister relied upon the appellant's response to the following questions in his visa application form signed in August 2017, effectively to frame what followed:

Q50. Describe how you departed your home country, including the details of any fraudulent documents you used to depart.

1. THE PEOPLE SMUGGLER FORGED A PASSPORT FOR ME SO I COULD EXIT THE COUNTRY. I HAD NOT COMPLETED MY MILITARY SERVICE SO I WAS NOT ENTITLED TO RECEIVING A LEGAL PASSPORT.

...

Q53. Give details of why you don't have a current travel document.

1. MY PASSPORT WAS FAKE AND IT WAS SEIZED BY THE PEOPLE SMUGGLER. IT IS NOT AVAILABLE ANY LONGER.

Q54. Is your current travel document valid for return to your home country?

1. No [box ticked]

2. Why not?

3. FAKE AND NOT AVAILABLE ANYMORE.

Q55. How did you obtain your current travel document in your home country?

1. IT WAS OBTAINED ILLEGALLY.

1. While the Minister accepted that these answers were given in response to direct questions about how the appellant left Iran, he points out that the appellant did not, in the above answers, express any fears associated with the way in which his passport was obtained. That is, the Minister contends that the appellant did not claim to fear harm from having engaged in any illegal or fraudulent acts to obtain his passport. That characterisation is not in terms disputed, but the appellant's case depends on what follows from the point of the delegate interview onwards.

1. Both the appellant and the Minister rely upon the following aspects of the appellant's statement of claims which accompanied his visa application, but with different emphasis:

[11] From the first raid until I fled Iran, my parents' house was visited three more times by the security agents who were looking for me. They had terrorised my family. My parents were extremely concerned about my safety. I did not have a passport at the time as I had not completed my military service. The people smuggler that my father engaged to assist me flee Iran, organised a fake passport for me within three weeks whilst I was in hiding. He took me to the airport on 17 December 2012 and ensured my safe exit from the immigration gate.

...

[13] I fled Iran unlawfully whilst being sought for by Iranian Ettela'at as a result of attending that house church. Siavash was arrested on that day and I have no information as to his fate. I however do not have any doubts that he has been harmed badly by the Iranian regime. I do not know what he has told them about me but the fact that I escaped from that place and a police officer was run over whilst chasing me will exacerbate my punishment in Iran. I have no doubt I will be immediately detained and taken into custody upon returning to Iran. I know that I will be interrogated and harmed by the security agents before ending up in prison for unlawful departure; participation in house church and evading police officers.

(Emphasis added.)

1. It was not disputed that, at this point, before the interview by the delegate discussed in the next section of these reasons took place, the claim articulated by the appellant was one involving a "fake passport", as opposed to a genuine passport obtained by fraudulent means.
2. The Minister submits that the passages extracted above do not suggest that the appellant feared personal harm from having engaged in any fraudulent or illegal acts, as his father and a people smuggler organised a passport for him and he was not personally involved in illegitimately obtaining or procuring the passport. Rather, the appellant's claim to fear harm was rooted in his unlawful departure or illegal exit, as opposed to any unlawful acts related to the procurement of his passport. That submission is correct as far as it goes, but by this stage, the appellant is clearly claiming a fear of being "immediately detained and taken into custody upon returning to Iran" because he knows that he "will be interrogated and harmed by the security agents before ending up in prison for unlawful departure". That goes well beyond a mere fear of being made to complete military service if his alleged evasion is discovered.

1. Both sides rely upon parts of the transcript of the November 2017 interview conducted by the delegate who made the initial decision to refuse the grant of the visa to the appellant. The particular passages relied upon by appellant, the Minister, or both, with some contextual material added, are extracted below, taken from the questions asked and answers given by the appellant and from the oral submissions made by the appellant's migration agent present at the interview after those questions and answers.
2. The questions and answers relied upon by the parties are as follows:

Q39. What issues do you think you would face if you were to return to Iran now because you haven't completed your military service?

1. If I return to Iran I would face three major problems and for two of them I cannot say now because you have to know the case, but for one of the problems it is the military service, they will convict me for escape - illegal escape from the country because I didn't go to the military service. This can be a big problem - a serious problem. They will harm me. I do not have precise information but something up to them and their decision-makers.

...

Q57. Why do you believe you would face the same problems?

1. Because I was in the same place and I don't - I don't know where my friend is now, if it's in the information department or the security, but I don't know where he is and with me, there will be the same problem because I escaped from the country illegally. I escaped from that date and right now - considering my situation, they will not believe anything that I will say. They will not trust me and so if they ask me, they will not believe I was correct in what I would say.

Q58. In terms of leaving the country illegally and escaping from a police officer, that would not be a penalty for which I would consider to be a law of general application. And these are things that would apply to anybody who had undertaken those activities. Do you have any comment you want to make about that?

1. I say if I didn't have any problems why would I illegally escape from the country? I escaped illegally from the country because I had the serious problems.

Q59. Is there anything else you wish to say about that matter?

1. He says, it's not just that I escaped illegally. It's also that I didn't do the military service because sometimes you have someone who has completed his military service and then he escapes, but as for me, I didn't do my military service. I didn't have a passport and then I escaped illegally.

...

Q64. Tell me, how did you get your passport to leave Iran?

1. This man who my father found and helped me leave Iran he made me a fake passport.

Q65. How?

1. I have absolutely no idea. In these two weeks in which I was hiding, my father talked to this man. He paid all the money and I think it was on 17 December, I'm not sure about the exact date, he gave the passport to me - he gave me the passport and he came with me to the airport and he told me that I should be sure that I will not face any problems with this passport and that I can leave Iran safely, and this passport, my photograph was there, my first name and my surname also.

...

Q78. Going back to the issue your passport, country information indicates that in order for your identity to be established you must attend the passport office in person with your papers and submit them personally for the document to be issued? So how were you able to bypass this process?

1. The passport I had was fake, so this was - this man gave me this passport and I knew it was fake. So one hour before we went he came and gave me this passport and then we went with his car and even - even for the passport photo he got it from my father, so we paid this man money and he brought this fake passport and he said that he will guarantee that I can leave the country.

Q79. Well, based on what you have told me, I consider that the document that you have been issued is more than likely being considered a genuine document and that you have subsequently been able to depart the country legally, because I do not accept, based on the country information that is before me, that you would be able to leave Iran on a fake passport or obtain it in the manner that you have claimed to do so.

1. The passport I left the country with was a fake passport and the man in Indonesia, he just got this passport from us, so the man was basically say that it was a real passport and the only the print I provided you with is my birth certificate and my National ID card.

Q80. I consider based on the country information and your account of getting the document, that it was more than likely not obtained in the manner that you claim. If you were - - -

1. I didn't obtain a passport but this man gave me the passport and he told me that this passport is fake and this is all I know, and I just maybe didn't think more about passport.

...

Q83. What do you think would happen to you if you were to return to Iran?

1. I am certain that if I return to Iran they will arrest me and before I go to prison they may torture me to gain information about how I left the country and I don't know, they may imprison me for how long but I assume they will imprison me for a long time and it is possible that my future will be like the future of my friend, who has disappeared and no-one knows where he is.

Q84. Why do you believe you would be arrested and possibly imprisoned?

1. Because when the police arrested my father they told him about the two charges against me and my father had asked a lawyer about this and the lawyer had told me that for this I could be imprisoned for a long time and now, after that, there are other crimes as well, so right now I am certain that they will imprison - arrest me.

Q85. What other crimes?

1. I mean as to going out of the country illegally.

1. The oral submissions made by the appellant's migration agent present at the interview after the answers given by the appellant to the questions from the delegate were as follows:

... According to country information - and we have got a number of them - quite credible country information which I am going to refer to a couple of them, there is a possibility that by paying bribes anyone - people would make fake or, in fact, in a fraudulent manner as I would say, they would make military service completion card for you and in that card, they apply later on, to the Iranian Passport Office to get a, you know, on the face of it, legitimate and valid passports which obviously is obtained in a fraudulent manner because the documents that are required for applying for the passport were obtained through an illegal means ...

... So let me just clarify the next part of my submission that [the appellant] did go to the airport and did go to the airline counter, did present his fraudulently obtained passport ... Now, as a person who was chased after escaping from a house church and later on left the country unlawfully, I submit that he - this matter is on the go and it is still open with the Iranian authorities and there is a likelihood that when he returns to Iran he will be arrested at the point of entry and he will be taken for investigations by the CUD official and because that police officer was injured during [the appellant's] escape and because he was attending the house church on that day and because he has left the country unlawfully, the minimum punishment would be an increase in the term of over 12 months ...

1. It was therefore clarified at this stage by the appellant's migration agent that, contrary to what the appellant had said in his visa application and in answer to questions by the delegate, his claim was that the passport he used to leave Iran was not fake, but rather genuine, despite being obtained in a fraudulent manner. Such a distinction between a genuine but fraudulently obtained document and a fake document was not made with respect to the military service card, which was referred to in the hearing and in the submissions as being "fraudulent" or "fake". Although it was not clear whether the card was obtained through forgery or some other fraudulent means, the exact method by which it was obtained is not significant, as what matters for the appellant's claim is that the card was obtained through illegitimate means, without the appellant having actually completed that military service. The appellant submits that where he has made a broad claim of fearing harm from his illegal departure, and his representative explained that the illegality of his departure arises from obtaining a fraudulent military service card, that aspect must necessarily fall within the broader claim. Put another way, the appellant contends that what made the departure unlawful must be an aspect of the unlawful departure claim. The appellant thus frames the claim of unlawful departure as a course of conduct, not confined to the mere act of departure itself. He contends that this interpretation is supported by the representative's emphasis on how the passport was obtained, as opposed to his underlying failure to complete military service.
2. The Minister contends that in circumstances where the appellant is directly asked about what would happen if he were to return to Iran, his failure to mention the alleged fraudulent acts and their consequences should be given some weight. At question 59, where the appellant was asked to comment further about his illegal departure, he explained "it's not just that I escaped illegally. It's also that I didn't do the military service ...". The Minister submits that his answer confirms that the claim which emerged from his evidence, as properly understood, had two strands, being:

(a) the appellant feared harm by reason of his illegal departure from Iran on a fake passport; and

(b) the appellant feared harm by reason of not having completed military service.

1. Building upon a similar argument advanced in relation to the visa application, the Minister offered a contextual reason for why the appellant did not claim to fear harm from the alleged fraudulent acts. The Minister contends that such a claim never emerged from the material because the appellant was never involved in the procurement of the passport and it was clear from his evidence that his father and a people smuggler had been responsible for fraudulently obtaining the passport. For this reason, the Minister submits it may be doubted whether any criminal liability could be sheeted home to the appellant such that he would personally face a risk of harm.
2. In response, the appellant submits that in circumstances where there was a military service card fraudulently created for his benefit and he was aware that the passport he used to depart was the product of such fraud, it is difficult to see how the authorities would not impute at least some level of responsibility on him for those acts. In the absence of detailed evidence adduced by either side on this point, I consider that to be a compelling response to the Minister's contextual argument. However, that does not necessarily mean that he held a fear relating to these matters, as the appellant contends.
3. The Minister accepts that the appellant feared both that he would be imprisoned for "going out of the country illegally", and that he would be tortured in custody because the authorities would want "to gain information about how [he] left the country". At first blush, this statement seems to include a fear of consequences for aspects of his conduct which go beyond the mere fact of his illegal departure. However, the Minister pointed out that when the appellant was pressed on why he believed he would be arrested, the answer he ultimately gave was confined to "going out of the country illegally", with no mention of the anterior acts of fraudulently procuring or obtaining a passport. As such, although it was made clear at the interview that the passport was not fake, but rather valid and obtained by illegal means, the Minister contends that a claim about departing illegally using such a passport did not necessarily include the earlier act of fraudulently obtaining the passport.
4. The difficulty with the Minister's argument is that it treats what the appellant said in answer to the delegate's questions separately and in isolation from the additional information provided by the appellant's migration agent, which qualified and corrected parts of the appellant's answers and must have been based on what the appellant had told him. Viewed in the isolated and somewhat artificial way contended for by the Minister, it is possible to read the appellant's answers as giving rise to a claim that is confined to his asserted illegal departure and the asserted dire consequences of that being identified upon his return to Iran. However, that interpretation ignores the migration agent's correction - and clarification - that the appellant's departure was illegal because his genuine passport was obtained by fraudulent means. By this point, the combination of these two features was open to be recognised by the delegate as a composite claim. As the reasons of the delegate next considered make clear, that combination was squarely recognised in the first paragraph of the delegate's reasons under the heading "Illegal Departure".

1. It is convenient to reproduce the entirety of the portion of the delegate's reasons dealing with illegal departure, with the particular passages relied upon emphasised in bold (omitting footnotes):

The applicant claims to have departed Iran on an Iranian passport obtained with fraudulent documentation as he had not completed his compulsory military service at time of departure and therefore his departure from Iran would be considered illegal.

DFAT advises Key Iranian identification documents (a birth booklet known as the shenasnameh and National Identity card) are safeguarded by sophisticated security features and would be difficult to manufacture for fraudulent use. It might be possible to obtain a genuine identification document with the intention of impersonating another person, but sophisticated border control procedures would make it difficult to use in order to leave Iran. Punishments for forgery are dealt with in Articles 523 to 542 of Iran's Penal Code.

Iranian passports are issued to nationals of Iran for the purpose of international travel. Passports serve as proof of Iranian citizenship. Iran has issued diplomatic and service biometric passports since July 2007. Ordinary biometric passports have been issued since February 2011.

Applicants for a passport are required to provide completed copies of the application form; their original Iranian Birth Certificate (shenasnameh); photocopies of all the pages of the Birth Certificate (containing an ID photo); the original and a copy of their Residence Permit card (IND issued document); and three passport photos taken within the past six months. Country information also indicates that unless they are exempt, military service in Iran is mandatory for males aged 18 to 34, including dual citizens. Young men of 17 years of age will be prevented from leaving Iran until they have completed their military service. It is possible, however, for a male to apply and obtain permission to travel before completion of service for educational purposes or in the event that he needs to travel for medical attention abroad. Country information suggests although that it is possible to obtain forged documents or buy legal documents in Iran and to obtain genuine documents in a fraudulent manner, forgeries are rarely used since the provenance of a document can be easily checked by reference to court or office registers. The prevalence of fraudulent documents in Iran often means details are rigorously checked by government officials prior to passport issue.

DFAT assesses that it would not be possible to pass the airport authorities at the Imam Khomeini International Airport without sufficient documentation, at least not without the complicity of airport authorities. Verification of passports and documentation at departure points at land borders and airports is carried out in the last phase of exit procedure. This means that in airports, after the tickets are checked and the luggage is delivered to the airline and before getting into the waiting area for departure, the passports shall be checked by a Disciplinary Forces officer who verifies in [the] NAJA [law enforcement] database whether the passport is fake and whether the person standing in front of the officer is the same person whose name and photo appears on the passport. DFAT agrees with sources that state most Iranians who end up as illegal migrants have left Iran with their original documents either by obtaining a genuine visa to a certain country or by obtaining a forged visas.

Based on the independent country information before me I consider that in issuing the applicant with a passport to depart Iran that the authorities were sufficiently satisfied that the applicant fulfilled all identity and military service requirements prior to passport issue. The fact that the applicant was able to depart Iran and pass through the various levels of passport checks and scrutiny at Imam Khomeini International Airport in Tehran without apparent difficulty at the time of his departure indicates that the applicant was of no interest to the Iranian authorities. Based on the account provided by the applicant and the fact that the applicant was able to depart Iran without issue suggests that the applicant will be considered by the Iranian authorities to have departed Iran lawfully and not illegally as claimed.

I therefore do not consider that the applicant face[s] a real chance of persecution on account of his claimed illegal departure in the event he were to return to Iran in the reasonably foreseeable future.

1. The appellant submits that the claim is relevantly identified by the delegate in the first bolded passage, referring to him departing "on an Iranian passport obtained with fraudulent documentation as he had not completed his compulsory military service at time of departure" (emphasis added). By that passage, he contends that the claim of fearing harm from obtaining fraudulent documents, being a reference to the military service certificate used to obtain the passport rather than the passport itself, clearly emerged from the delegate's reasons, or, at the very least, was identified as part of the claim relating to his illegal departure. Further, the appellant relies upon the delegate's reference to country information regarding the punishments for forgery as contextual evidence in support of the delegate's awareness of his claim that he feared harm because of that antecedent fraudulent conduct.
2. Having identified such a claim, the appellant contends that the delegate went on to consider the claim, ultimately rejecting it on the basis that any possible fraud was unlikely to be discovered. In the final bolded passage, the delegate concludes that "the applicant will be considered by the Iranian authorities to have departed Iran lawfully and not illegally as claimed." The appellant places particular emphasis on the phrase "as claimed", arguing that it indicates that the delegate considered the claim it identified, which included obtaining a passport through fraudulent means.
3. The Minister submits that the reference to the country information regarding forgery does not assist the appellant because there is a distinction between forgery and obtaining genuine documents in a fraudulent manner, with the appellant's claim falling into the latter category. Therefore, the Minister contends that the delegate's focus remained on the risk of harm faced by the appellant as a result of his alleged illegal departure, ultimately finding that he would be considered as having departed Iran lawfully and not illegally as claimed.
4. I accept the first part of the Minister's argument to a point: while there is a distinction between forgery and obtaining genuine documents in a fraudulent manner, the latter is reflective of the appellant's case only in respect of the passport, examined in isolation. By this stage, the appellant's case expressly raised the possibility of forgery as a component within the series of steps through which the passport was claimed to have been obtained, namely through the use of a "fake" or "fraudulent" military service certificate (see the submissions of the appellant's migration agent quoted at paragraph [29](a) above).
5. The delegate's reasoning was based on any such forgery not being detected, such that the appellant's departure would not be considered to be illegal by reason of him departing with a genuine passport. However, what matters is that the delegate identified an additional integer to the appellant's claim by going beyond the mere act of departure to state that his passport was obtained with fraudulent documentation. In that way, the delegate acknowledged that the appellant feared harm by reason of his illegal departure, and that the illegal departure resulted from the use of a genuine passport obtained by fraudulent means.

1. The relevant passages in the Authority Decision are in a narrow compass, with:

(a) both sides relying on [33] and [34], albeit with different interpretations;

(b) [35] providing context for [36]; and

(c) [36] being relied upon by the appellant to show that the additional claim he asserts to have been made was not addressed.

1. The Minister does not dispute that the additional claim, if I found it to have emerged, was not addressed by the Authority. That concession is of some importance and was appropriately and properly made by the Minister.
2. The paragraphs referred to above are as follows (omitting footnotes):

[33] The applicant claims he will face consequences for departing Iran illegally. In his written application he said his father engaged a smuggler who organised a fake passport for him. At the TPV interview he clarified that the passport contained his name, photograph and other identifiers. His then representative explained the passport was a genuine Iranian passport, but says it was obtained in a fraudulent manner. He said the smugglers are able to produce fake military service cards that are used to apply to the Iranian passport office. Thus he used a fake card to demonstrate he had completed military service, when he had not, and was able to get a genuine passport in his name. In this way he was able to obtain an Iranian passport and leave Iran without any difficulties.

[34] Thus when the applicant says he left Iran 'illegally' he actually left on a genuine Iranian passport, passing through the usual passport and security checks at the international airport. The issue of concern for him is having left Iran prior to doing his military service. DFAT reports military service is compulsory for all Iranian men aged 18 to 40. The applicant was 23 when he left Iran and it is not clear how he was able to evade service for 5 years, if in fact he did. According to DFAT men aged over 40 who have evaded military service will likely receive a fine for doing so. Those who return to Iran under the age of 40 will be drafted. If the applicant has not yet done his military service, or if the fake military service completion card he obtained is discovered to be fraudulent, he may be drafted. He may also however now be exempt from military service, as the only son of his widowed mother. The applicant said at the TPV interview that he does not want to do military service because he thought that during the service they might find out he was not religious and this could cause problems for him. Given the high rates of secularism and even atheism reported in Iran, particularly among young people, I find the applicant's lack of belief or practice of Islam would not stand out. There is also no reporting before me that indicates the religious practices or beliefs of those serving are monitored or of concern. I accept the applicant may be reluctant to complete military service, but I do not accept he faces a real chance of harm for thus far having evaded military service or in undertaking it as a non-believer of Islam, if he is even required to do it.

[35] Although not expressly claimed in his TPV application, the delegate considered whether the applicant faced a real chance of harm in returning as a failed asylum seeker from Australia. In recent submissions it was also raised that he may have an imputed political opinion for seeking asylum in Australia, living in Australia for over 10 years, and leaving Iran without completing military service.

[36] If the applicant returns to Iran it will likely be on a voluntary basis. The Iranian authorities has a longstanding policy of not accepting involuntary returnees. If the applicant is unable to renew his passport in Australia he may return on a temporary travel document called a laissez-passer. Returnees with a laissez-passer are questioned on the circumstances of their departure, but any check of the records would show the applicant had departed lawfully on his passport. DFAT reports arrest and mistreatment are not common during processing at the airport and as the applicant left lawfully I am not satisfied he would attract adverse attention on his return.

1. The dispute is confined to whether the claim emerged from the Authority's Decision at [34], as the Minister accepts that had the claim clearly emerged, it was not considered by the Authority in its conclusion at [36]. It is not in dispute that at [34] of its decision, the Authority considered the possibility of the military service completion card being fraudulent (in the sense of being obtained without the appellant completing the required military service), as it noted that the appellant could be drafted if that fraud was discovered. Having identified that act, the appellant contends that the Authority was required to consider his claim of fear of harm from the antecedent illegal act which resulted in the issue of the genuine passport, and which went beyond forced military service upon return.
2. The appellant submits that the exact form of harm was explained by the appellant's representative in the delegate's interview, when he stated that "because [the appellant] was attending the house church on that day and because he has left the country unlawfully, the minimum punishment would be an increase in the term of over 12 months".
3. In discussing the possibility of the fraud being discovered and the possibility of the appellant being drafted, the appellant contends that the Authority went even further than the appellant's representative and the delegate by expressly contemplating a further risk factor, being the fact that, even if the appellant could pass through customs upon return to Iran, his fraudulent military service card could subsequently be discovered in the community. He claims that this interpretation is supported by the Authority's finding at [36] that it was not satisfied that he would attract adverse attention on his return. For this reason, the appellant submits that the Authority needed to consider this new integer of discovery in the community and its possible consequences, including the possibility of further punishment.
4. The appellant contends that the Authority's failure to consider the claim that it identified was material. Had the Authority considered such a claim, the appellant contends that it could have found that the appellant faced detention and possible torture, noting that he expressed such a fear from authorities potentially trying to work out "how [he] left the country".
5. Picking up the two strands of the claim advanced at [31] above relating to the appellant's fear of harm by reason of his illegal departure and failure to complete military service, the Minister contends that the Authority's Decision at [34] merely addresses the claim identified in the appellant's interview about his fears of harm for not completing military service. Read in context with the preceding paragraph, which describes the role of the appellant's father and a people smuggler in fraudulently obtaining the passport, the Minister submits that the Authority's Decision goes no further than considering the consequence of such fraud being discovered, namely, being drafted. The Minister submits that this aspect of the Authority's Decision is therefore directly responsive to the appellant's articulated claim of fear of harm for not completing military service and does not give rise to the alleged claim of procurement of the fraudulent military service completion card on the part of the appellant himself.
6. The appellant contends that the two strands of the claim articulated by the Minister is untenable in the sense that the underlying fraud and the departure are inseparable as a claim, because the departure was only illegal due to the use of the fraudulent military service card to obtain the genuine passport. Absent such an element, the appellant contends that he would not have feared harm as he departed using a valid and genuine passport. Therefore, the appellant submits that, logically, a claim to fear harm from an illegal departure necessarily requires construing that claim to include a fear of the underlying illegal conduct being discovered. Further, the appellant submits that the claims are inseparable because discovery of the fraud leads to discovery of the illegal departure. Given the Authority contemplated the possibility of the fraudulent military service card being discovered, the appellant contends that it should have gone further to consider the risk of any associated harms.
7. The appellant relies upon the reasoning and conclusion of the Full Court on much the same point in DOU16 v Minister for Home Affairs [2019] FCAFC 212; 272 FCR 358 at [36]- [37] (Murphy, Steward and O'Bryan JJ). In DOU16, the Tribunal accepted that the visa applicant had paid a bribe to procure a military service certificate which falsely stated that he had completed military service. Similar to the case at hand, the fake military service certificate was then used to obtain a passport. The Tribunal found that the use of the fake military service certificate would not be discovered on re-entry to Iran. However, the Tribunal also considered the possibility of discovery by alternative means, despite ultimately finding that such discovery would not result in serious or significant harm because it considered that, at most, there was a risk that the visa applicant might have to pay a fine. The Full Court found that the Tribunal was obliged to consider the risk of harm to the visa applicant as a result of obtaining the fake certificate through a bribe, because it had identified the possibility of discovery. For example, although the Tribunal considered that a fine might be payable upon discovery, its consideration was limited to the likely penalty for a person who defaults on military service, as opposed to the likely punishment the applicant might face for procuring a false certificate through bribery.
8. Applying that reasoning, I am of the view that by raising the possibility of the military service completion card being fraudulent at [34], the Authority was required not only to consider the aspect of the claim that related to avoiding military service and the risk of being drafted, which undoubtedly formed part of the appellant's concerns, but also to consider whether the appellant's asserted fear of interrogation and incarceration flowing from the use of a fraudulent military service certificate to obtain a passport was well-founded. Because that necessary question was not asked by the Authority, it was not considered, and that part of the appellant's claim which emerged from the Authority's Decision was not addressed.

1. The primary judge reproduced segments of the material reproduced above and some other passages that are not presently of any moment. The parts of her Honour's reasons that are said to be erroneous are as follows (footnote omitted):

[51] Unlike the position in DOU16, however, in this case the Authority did not accept that the applicant obtained a fraudulent military service certificate. This is evident from the following discussion by the Authority of the applicant's claim that he feared harm as a result of having left Iran illegally:

The applicant was 23 when he left Iran and it is not clear how he was able to evade service for 5 years, if in fact he did. According to DFAT men age over 40 who have evaded military service will likely receive a fine for doing so. Those who return to Iran under the age of 40 will be drafted. If the applicant has not yet done his military service, or if the fake military service completion card he obtained is discovered to be fraudulent, he may be drafted.

(Emphasis added)

[52] It is clear from a fair reading of the Authority's reasons that it did not accept that the applicant had either not completed his military service, or that he had obtained a fraudulent military completion card. The conclusions in DOU16 do not equally apply to the facts in this case.

[53] It is submitted for the applicant that in this case, the Authority contemplated the possibility that the applicant's fraud might be discovered was not limited to his arrival and might occur after he had re-entered the community. In particular, the applicant relies upon the Authority's findings at paragraph 34 of its decision.

[54] When paragraph 34 of the Authority's decision is read fully and fairly, it is clear that the Authority does not accept that the applicant had not completed military service as claimed and therefore that the military service document was in fact not genuine.

...

[65] It is further submitted for the Minister that if the court accepts that no express claim was made in relation to fearing harm due to the applicant's involvement in obtaining a passport through the use of a forged military service completion document, then the court should also reject any suggestion that such a claim clearly emerges from the material before the Authority.

[66] In support of the latter proposition, the Minister submits:

(a) where an applicant is represented, the decision maker is entitled to proceed on the basis that claims which are advanced are those that the applicant seeks to make;

(b) on the material put before the Authority it is difficult to see how any liability for the forgery 'could be sheeted home to the applicant', in circumstances where the applicant's repeated claims were that he did not obtain the forgery, but rather that it was obtained by the person who arranged his departure from Iran;

(c) finally, it is submitted that even if such a claim did emerge from the material before the Authority, it is not clear how this could be said to be a protection claim in circumstances where his claim is, at its highest, that he faces risk of harm because he breached a law and made false documents - it is not clear how it is said that breaking a law of general application in a country could be said to give rise to a protection claim.

[67] Finally, it is submitted that the delegate's reasons do not identify and deal with such a claim such that it is therefore before the Authority as argued for the applicant. I agree with the Minister's submissions that the delegate is simply summarising the applicant's claims in its decision when discussing 'Illegal Departure'.

[68] On a fair reading of the delegate's reasons, it is clear that the second paragraph under the heading 'Illegal Departure' is no more than a summary of the country information about the security features that Iranian identification documents contain which would make forgery difficult. The delegate then also refers to the criminal penalties for forgery in this context, namely in the context of the lengths that the Iranian government has gone to in protecting against forgeries in identity documents.

[69] On a fair reading, it cannot be said that the delegate considered a claim that the applicant faced a fear of harm due to having obtained and/or used forged documents to obtain a passport. So much is so from the delegate's observations as follows:

Based on the independent country information before me I consider that in issuing the applicant with a passport to depart Iran that the authorities were sufficiently satisfied that the applicant fulfilled all identity and military service requirements prior to passport issue. ... Based on the account provided by the applicant and the fact that the applicant was able to depart Iran without issue suggests that the applicant will be considered by the Iranian authorities to have departed Iran lawfully and not illegally as claimed.

[70] In these circumstances it is submitted for the Minister that a claim that the applicant now argues that the Authority failed to consider, was not expressly made and did not clearly emerge from the material before the Authority such that a failure to consider that claim could amount to a jurisdictional error. I agree.

[71] The applicant did not claim to fear harm as a result of having used a fraudulent document to obtain his passport. Such a claim did not clearly emerge from the material before the Authority. Nor was such a claim considered by the delegate. I accept that had it been considered by the delegate, notwithstanding not having been clearly articulated by the applicant, it would have emerged from the review material before the Authority. For the reasons discussed earlier however, I am not satisfied that read fairly, such a claim was considered by the delegate.

[72] Nor can it be said that such a claim clearly emerges from the material. The applicant claimed to fear harm as a result of having left Iran without having completed his military service. The Authority considered that claim and rejected it for the reasons given.

1. I consider that the primary judge erred in distinguishing DOU16 as, upon close analysis, it was sufficiently similar to this case such that it should not have been distinguished. In particular, I think it is more accurate to say that the Authority had reservations or doubts about whether the appellant had not completed his military service, and that the appellant never contended that he had obtained a fraudulent military completion card: cf PJ[52] reproduced above. As such, the difficulty with the primary judge's reasoning above is that it treats the approach of the Authority in addressing the military service aspect of the appellant's claims as being exhaustive of the full ambit of those claims. While DOU16 had some important factual differences, the relevant parallels are apparent in that the Authority was required to consider the full ambit of the feared consequences, and not just stop at the risk of being drafted to partake the military service that the appellant claimed to have avoided.

1. The primary judge erred in failing to uphold the first review ground before her Honour. Therefore, the appellant's application for an extension of time is sufficiently meritorious for the extension of time to be granted and the resulting appeal must also be allowed. The decision of the Authority must be set aside and the matter must be remitted to the Administrative Review Tribunal for consideration according to law. The Minister must pay the appellant's costs both in this Court and before the primary judge.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.