DWG18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 488

1. The Applicant is a citizen of Iran who sought protection primarily on the basis of claims to fear harm on return due to past persecution, sectarian discrimination and threats made to his family.
2. The Applicant now seeks judicial review of a decision to affirm an administrative decision to refuse a protection visa.
3. For the reasons that follow, the application must be dismissed.

1. The Applicant is a citizen of Iran who arrived in Australia, as an unauthorised maritime arrival, on 17 October 2012.
2. On 13 August 2015, the Applicant applied for a temporary protection visa (protection visa). There followed an unfortunate history wherein a delegate refused the protection visa on 17 February 2016, the Immigration Assessment Authority (as it then was) (Authority) affirmed the delegate's refusal on 1 April 2016. The Applicant then exercised their appeal rights in the predecessor to this Court and then the Federal Court of Australia. A Full Court remitted the matter back to the Authority by decision of 10 November 2017.
3. On 21 June 2018, a different member of the Authority again affirmed the delegate's decision not to grant the Applicant a protection visa (Authority's decision) which decision is subject of the present application for judicial review.

1. The Authority's decision commenced with a brief overview of the Applicant's claims and history of review proceedings: at [1] and [2].
2. At paragraphs [3] to [20] the Authority identified the information that it had before it. There, the Authority accepted and rejected "new information" provided since the delegate's decision in the form of a submission and statutory declaration.
3. At [21] the Authority summarised the Applicant's claims for protection and observed that the claims have developed over time, at arrival interview on 13 November 2012, in the written protection visa application lodged on 14 August 2015 and at interview on 29 September 2015. Relevant to the grounds of judicial review in these proceedings, the Authority summarised the Applicant's claims related to his Sabean-Mandaean religion and discrimination on account of his religion including that his shop was raided many times and things stolen and to have been threatened in connection with a sexual assault of his friend and to have been personally sexually assaulted and subject of daily threats thereafter.
4. At [22] to [26] the Authority made a series of factual findings. The Authority was satisfied that the Applicant: was born in Iraq and into the Sabean-Mandaean religion; departed Iraq to Iran with their family in 2002; is an Iranian national by descent; does not have the right to enter and reside in any country other than Iran; and destroyed his passport on advice of a people smuggler in Indonesia.
5. At [27] to [77] the Authority conducted its refugee assessment. Pertinent to the grounds of judicial review in these proceedings are the findings headed "Claims relating to fear of persecution for reasons of the applicant's Sabean-Mandaean religion" at [41] and [49]. In particular, at [47] to [49]:

[47] Based on the above information, I am satisfied the applicant has suffered both official and societal discrimination and harassment in Iran. I accept that his welding shop has been robbed, although I am not convinced the thefts were solely for reasons of his religion. However, I do accept his evidence that he was unable to access assistance from the police and relevant authorities for reasons of discrimination against him as a Sabean-Mandaean. I accept that Iranian Muslims consider Sabean-Mandaeans to be unclean. I am satisfied that it is likely the applicant will continue to experience discrimination and harassment as a member of the Sabean-Mandaean community if he is returned to Iran now or in the reasonably foreseeable future.

[48] I have had regard to the extensive examples of serious harm provided in s.5J(5) of the Migration Act and I am not satisfied that the official and societal discrimination and harassment that the applicant may experience meet the threshold of serious harm. As discussed above, I am not satisfied that the applicant has been threatened with serious harm or being murdered by members of a Muslim family who have a personal vendetta against the applicant's cousin and his cousin's relatives. I note that the applicant has had employment in his own welding business up until his departure from Iran. Whilst the applicant may have been denied access to higher education in Iran, there is no evidence before me that he has been denied medical treatment or other basic services. The applicant has not claimed to have been arrested, detained or otherwise mistreated for reasons of his religion. I have had regard to the fact that he has stated he does not practice his religion and only attended temple on special occasions and does not consider himself religious. Consequently I am not satisfied that the discrimination and harassment the applicant may experience is a threat to his life or liberty; significant physical harassment or ill treatment; significant economic hardship that threatens his capacity to subsist; a denial of access to basic services where it threatens his capacity to subsist or a denial of the applicant's capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist.

[49] I am therefore not satisfied that there is a real chance the applicant will suffer serious harm for reasons of his religion if he is returned to Iran now or in the reasonably foreseeable future.

(sic.)

1. On 25 July 2018, the Applicant lodged an originating application for judicial review of the Authority's decision and an affidavit affirmed 24 July 2018 which annexed the Authority's reasons.
2. Following an amended application filed on 27 July 2020, a further amended application was filed on 22 September 2025 and leave for its late filing granted with no opposition. In support of the further amended application, the Applicant relied on: an outline of submissions and an affidavit of the Applicant filed 18 July 2025 and a list of authorities on 23 September 2025.
3. For their part, the First Respondent filed: a response on 15 August 2018 by which the substantive application was opposed and an order for costs sought; a court book on 23 October 2018; outline of written submissions, affidavit of the First Respondent's solicitor annexing a copy the transcript of the Applicant's interview before the delegate and a list of authorities on 17 September 2025.
4. On 24 September 2025, the matter proceeded to final hearing. The Applicant and the First Respondent were respectively represented by Counsel. At the outset of the final hearing, the Applicant sought to abandon the second ground of review in the further amended application. The single ground of judicial review pressed was as follows:

The Authority made a jurisdictional error by misinterpreting or failing to consider serious harm within the meaning of s 5J(4)(b) of the Migration Act 1958 (Cth).

1. The Authority found at paragraph 47 of its decision that the Applicant's welding shop had been robbed;
2. The Authority found at paragraph 47 of its decision that the Applicant was unable to access assistance from the police and relevant authorities for reasons of discrimination against him as a Sabean-Mandaean;
3. The Authority found at paragraph 48 of its decision that having regard to s 5J(5) of the Act the Applicant had not suffered serious harm;
4. The Authority erred by treating s 5J(5) of the Act as an exhaustive definition of serious harm;
5. The Authority erred by treating s 5J(4)(b) of the Act as ejusdem generis to the examples of serious harm in s 5J(5) of the Act in circumstances where the ejusdem generis rule did not apply: compare ANC17 v Minister for Immigration [2020] FCCA 707 at [24], refusing to follow AYY17 v Minister for Immigration [2017] FCCA 2886 at [44];
6. The Authority erred by failing to consider the broader concept of serious harm in s 5J(4)(b) of the Act, to be assessed according to the ordinary meaning of those terms, without limitation according to s 5J(5) of the Act, and whether theft from the Applicant, and a discriminatory lack of response from the authorities, attracted such a concept of serious harm.

1. A "privative clause decision" as defined at s.474 of the Migration Act 1958 (Cth) (Act) is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority's decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
2. The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), as cited in BIJ18 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20] (Kelly J).
3. The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and 36(2)(aa) provides (and, at the relevant times, provided) that "a" criteria for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

1. For the purpose of the application of s.36 of the Act, the definition of a "refugee" is defined at s.5H:

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

...

1. In turn, the definition of a "well founded fear of persecution" is defined at s.5J:

5J Meaning of well‑founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

...

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

1. An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.

1. By the single ground of judicial review, the Applicant contended that the Authority was wrong to conclude that his claims did not meet the definition of "serious harm" for purposes of s.5J, where the Authority had made critical findings supportive of the Applicant's claims (namely, that the Applicant had suffered official and societal discrimination and harassment in Iran, accepted that the Applicant's welding shop had been robbed but was not convinced the thefts were solely for reasons of his religion, accepted that the Applicant was unable to obtain the assistance of police and relevant authorities by reason of discrimination against him as a Sabean-Mandaean). Moreover, where the Authority accepted that Iranian Muslims consider Sabean-Mandaeans to be unclean and was satisfied it was likely he would continue to experience discrimination and harassment as a member of the Sabean-Mandaean community if returned to Iran then or in the then reasonably foreseeable future.
2. In essence, the Applicant contended that the Authority had wrongly treated the specified instances of serious harm at s.5J(5) as an exhaustive list and/or otherwise read the section too narrowly.
3. It was not controversial in these proceedings that s.5J(5) of the Act were not to be construed as an exhaustive or confined list. Rather, the task of the Authority was to determine whether the extent of the harm was of comparable gravity to the specified instances of harm, where "each of the specified instances of harm is to be read as referring to a category of detriment or disadvantage of a severity that the person threatened cannot be expected to tolerate": Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 (WZAPN) at [98] (Gageler CJ). Citing WZAPN, in AGD15 v Minister for Home Affairs [2019] FCA 896 at [30] (Anderson J), put this way:

In this context, "serious harm" has been understood as a harm which a person cannot be expected to tolerate such that a person's refusal to return to his or her country of nationality is an understandable choice.

1. In conducting its review under the "fast track" review regime at Part 7AA of the Act, the Authority was obliged to make a written statement that set out its decision with the reasons for the decision: s.473EA. In this respect, the statute did not obligate the Authority to set out its findings on any material question of fact and refer to the evidence on which the findings were based, as for a Part 7 reviewable decision: s.430. As the First Respondent submitted, the reasons are not to be read with an eye fine tuned for error and it would not be assumed that a decision maker did not have a correct understanding of the operation of relevant parts of the Act: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272] (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); and Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36 at [16] (Gageler CJ, Edelman and Jagot JJ).
2. On analysis of the Authority's written statement, the Authority correctly identified that s.5J(5) was to be read as a list of "examples" which it ought, and did, have regard to in assessing whether the official and societal discrimination and harassment the Applicant may experience on return met the threshold of "serious harm": at [48].
3. A series of critical findings of relevance to the present application are found at [47] of the Authority's reasons. There, the Authority found that the Applicant had suffered both official and societal discrimination and harassment in Iran and considered that his welding shop had been robbed but was not convinced that the thefts were "solely for reasons of his religion" - implying an acceptance that those thefts were at least partly motivated by his religion. Further, the Authority expressly accepted that the Applicant was not able to obtain assistance from police and relevant authorities by reason of discrimination against him as Sabean-Mandaean and that Iranian Muslims considered Sabean-Mandaeans to be unclean and the Applicant would likely continue to experience discrimination and harassment as a member of the Sabean-Mandaean community if returned to Iran at the time of those reasons or in the then reasonably foreseeable future.
4. Then, at [48] and with express regard to the statutory "examples" at s.5J(5) of the Act, the Authority expressed that it was not satisfied that the official and societal discrimination and harassment that the Applicant may experience met "the threshold of serious harm". Among the consideration that followed at [48] was, relevantly, that the Applicant had not claimed to have been arrested, detained or otherwise mistreated for reasons of his religion; had stated that he does not practice his religion and only attended temple on special occasions; and does not consider himself religious. The Authority acknowledged again that the Applicant may experience discrimination and harassment but considered, consequently, that this did not rise to the threshold of any of the specified instances at s.5J(5) (listed in the Authority's decision). By referencing the specified instance as examples and the threshold, there is no proper basis to conclude that the Authority misunderstood its task.
5. That another decision maker would decide differently is beside the point. In my view, the Authority was entitled to conclude, as it did on the materials before it, that the degree of severity of the harm was not consistent with those instances defined by the statute.
6. For completeness, the First Respondent pointed in these proceedings to extracts of the transcript of the hearing before the Authority which would add weight to the Authority's conclusion as to "serious harm". Appreciating the Authority's task did not require an identification of findings and fact and evidence on which they were based, I did not find those extracts particularly persuasive to understanding the reasons for the Authority's decision as recorded in its written statement of 21 June 2018. Those aspects of transcript would not, in any event, change the conclusion reached on what was before and referred to by the Authority.

1. For the above reasons, I discern no error in the approach of the Authority as pleaded and the single ground of judicial review does not succeed. Accordingly, the amended application must be dismissed.
2. The First Respondent's application for costs in the amount of $9,097.93 is reasonable in the circumstances and I will order accordingly.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.