DXD19 v Minister for Immigration and Citizenship [2026] FedCFamC2G 316

1. The applicant, a citizen of Iran, seeks judicial review of the decision of the Immigration Assessment Authority (Authority) dated 3 September 2019. The Authority affirmed a decision of a delegate of the Minister to refuse the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV), a type of protection visa created by s 35A of the Migration Act 1958 (Cth) (Act). This Court has jurisdiction to determine this matter pursuant to s 476 of the Act.
2. The applicant sought to impugn the Authority's reasons and findings on the grounds set out at [14] of this judgment. For the reasons set out below, I find the applicant has not demonstrated jurisdictional error and I dismiss the application.

1. On 25 May 2013, the applicant first arrived in Australia by boat as an unauthorised maritime arrival (Court Book (CB) 173). On 19 June 2013, the Department of Immigration and Citizenship (Department) conducted an irregular maritime arrival and induction interview of the applicant (arrival interview) (CB 1 to 19).

1. On 25 July 2016, the Minister exercised his discretion and power pursuant to s 46A(2) of the Act to invite the applicant to make a valid application for either a Temporary Protection (Subclass 785) visa or a SHEV (CB 20 and 21). On 15 November 2016, the Department received the applicant's application for a SHEV (CB 22 to 64).
2. The applicant's claims were set out in his written statement of claims attached to his protection visa application dated 21 September 2016 (CB 65 to 68). The Authority at [6] of its reasons summarised the claims as follows:

(a) The applicant is a single man from Ahvaz, Iran.

(b) In Ahvaz he lived with his girlfriend, which was against Islamic Sharia law. The Basij had a base near his house and they became aware of his living arrangement.

(c) In January or February 2013, Basij officers forced their way into his apartment. They beat him and his girlfriend. When the applicant tried to report the incident to the police, they detained him for three days. His sister-in-law bailed him out. He was meant to attend a court date but did not do so. His brother told him he had been given a sentence in his absence of 7 years imprisonment and 74 lashes.

(d) Since living in Australia, the applicant had converted to Christianity and had been baptised.

(e) He feared returning to Iran because he feared the sentence of imprisonment and lashes would be imposed, and he would suffer more mistreatment from the Basij. He also feared returning because he could not practise Christianity freely in Iran. He would be punished for his conversion and could face the death penalty.

1. On 26 July 2019, a delegate of the Minister refused to grant the applicant a SHEV, on the basis that the applicant was not a person in respect of whom Australia had protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Act (CB 137 to 153).
2. On 1 August 2019, the delegate's decision was referred to the Authority for a review (CB 155 and 156). By letter dated 1 August 2019 to the applicant, the Authority informed the applicant that the delegate's decision was referred to the Authority for a review (CB 155 and 156). The said letter attached, among other attachments, a document titled "Practice Direction for Applicants, Representatives and Authorised Recipients" (Practice Direction), being a practice direction given by the Authority under s 473FB of the Act. On 18 August 2019, the applicant's representative sent to the Authority a written submission dated 14 August 2019 in support of the applicant's claim for a SHEV, which submissions contained new information contained in hyperlinks (CB 158 to 161). One of the grounds for judicial review relates to this new information and the fact that it was not provided in accordance with the Practice Direction.

1. The Authority noted the applicant's claims at [6] of its reasons, which are reproduced at [5] of this judgment.
2. The Authority found the applicant's claims about what happened with the Basij inconsistent (at [12] of its reasons). The Authority at [21] of its reasons accepted, based on country information on the Basij, that it was possible the applicant was beaten once whilst walking in public with a girlfriend. However, the Authority did not accept the following claims (at [21] of its reasons):

(a) The Basij would have any interest in the applicant now or in the reasonably foreseeable future because of a possible beating in the street more than six years ago whilst he was walking in public with a girlfriend.

(b) There was any ongoing interest in the applicant by the Basij.

(c) The Basij forced their way into the applicant's home.

(d) The applicant was detained for three days.

(e) That charges were laid against the applicant by the Basij or the police, resulting in a conviction in absentia.

1. Given the findings identified in the preceding paragraph, the Authority found the applicant did not face a real chance of harm from the Basij or the police because of events that the Authority did not accept had happened, or for any other reason ([21] of its reasons).
2. The Authority at [22] to [33] of its reasons considered the applicant's claimed Christian conversion. It then turned to consider the applicant's apostate claim at [34] and [35] of its reasons. I will not deal with the Authority's consideration of those claims in detail as they are not the subject of any grounds for judicial review.
3. The Authority considered the applicant's claim to fear harm for reason of being a returning failed asylum seeker at [36] to [39] of its reasons and given its earlier findings, it did not accept the applicant would be stopped at the airport on return to Iran (at [37] of its reasons). The Authority found at [38] and [39] of its reasons, that the applicant would only return to Iran voluntarily, because historically Iran has refused to issue travel documents to allow the involuntary return of Iranians and in such circumstances, country information did not support the claimed harm.
4. Accordingly, the Authority found at [40] of its reasons the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and thereby did not meet s 36(2)(a) of the Act. Finally, the Authority assessed the applicant against the complementary protection criterion at [41] to [47] of its reasons and found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm, and hence the applicant did not meet s 36(2)(aa) of the Act.

1. The applicant's amended application for judicial review accepted for filing on 3 January 2025 contained the following grounds for judicial review (as per original):
   1. The Authority made a jurisdictional error in relation to new information.

Particulars

a. The Authority referred to the new information at paragraph 5 of its decision.

1. The Authority refused to admit the new information because the Applicant had not complied with the Authority's Practice Direction;

2. The Authority refused to exercise s 473DC of the Act because the Applicant has not complied with the Practice Direction;

3. The Authority thereby misconstrued s 473FB (5) of the Act which provides that the Authority is not required to accept new information. It does not, as the Authority understood, provide that the Authority is required not to accept the information.

4. The IAA failed to Complete the Review.

Particulars

1. The IAA accepted that the applicant was beaten once by the Basij whilst walking in public with a girlfriend.

2. The applicant did not assert that he would not again engage in similar activities with girlfriends if he returned to Iran.

3. The IAA failed to assess whether the applicant would engage in similar activities with a girlfriend if he returned to Iran and if so whether there was a real chance or risk of the applicant again being mistreated by the Basij.

4. The IAA failed to address a claim that clearly arose from its findings.

Particulars

The applicant repeats the particulars to ground 2.

1. The applicant was represented at the hearing before me by Mr David Godwin of Counsel (Mr Godwin). The Minister was represented by Mr George Pasas (Mr Pasas), a solicitor from Clayton Utz. The applicant relied on his Counsel's written submissions accepted for filing on 22 December 2025 and the Minister relied on his written submissions accepted for filing on 8 January 2026. I also had the benefit of oral submissions at the hearing from Mr Godwin and Mr Pasas.
2. The evidence before the Court comprised of the Court Book, tendered by the Minister which was marked "Exhibit R1", and the Authority's Practice Direction, tendered by the applicant, which was marked "Exhibit A1".

1. By ground 1 the applicant alleged the Authority wrongly construed s 473FB(5) of the Act as requiring the mandatory exclusion of the new information on non-compliance by the applicant with the Practice Direction.
2. Section 473FB of the Act at the relevant time provided:

(1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

1. the operations of the Immigration Assessment Authority; and
2. the conduct of reviews by the Authority.

(2) Without limiting subsection (1), the directions may:

1. relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
2. set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

(3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non‑compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.

(4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

(5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

1. There is no issue between the applicant and the Minister that the President had issued the following Practice Direction dated 17 December 2018 for the purposes of ss 473FB(1) and (2) of the Act, which relevantly provided:

New Information

1. We can only consider new information (information that was not before the Departmental decision-maker) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
2. If you want to give us new information, you must clearly identify which parts of the material you give to us is new information, including any new information referred to in submissions.
3. You must also provide an explanation in writing as to why:
   • the information could not have been given to the Department before the decision was made, or
   • the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
4. Your explanation should be no longer than 5 pages and must accompany any new information you give to us. If you provide to us, or refer in your submission to, any new information, your explanation must specify why that new information is relevant to the review.
5. If you provide or refer to new information such as country information reports or media articles, you must:

   • attach a copy of that information or an extract of the part(s) of the information on which you rely, and

   • identify the source of the information.

Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.

1. All documents that are not in English should be translated into English by a translator with a 'Translator' level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

2. Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

3. At our discretion, we may decide not to accept new information that does not comply with these requirements.

(Emphasis added)

1. Further, there is no issue between the applicant and the Minister as to the following matters:

(a) The information that was provided to the Authority, being the information contained in hyperlinks in footnotes one to five of the applicant's written submissions dated 14 August 2019 (CB 159) was relevantly new information.

(b) Given the new information was provided by way of hyperlinks, it did not comply with the Practice Direction referred to at [19] of this judgment.

1. The parties also agreed that given the matters in the preceding paragraph of this judgment, on a proper construction of s 473FB(5) of the Act, the Authority was not required to accept the new information, but by the same token the Authority was not precluded from accepting the new information for the reason that there was non-compliance with the Practice Direction. I note this construction of s 473FB(5) is consistent with the decision of DHV16 v Minister for Immigration and Border Protection (2018) 331 FLR 204; [2018] FCCA 349, where his Honour Driver J at [97] said (footnote omitted):

It is true that s 473FB(5) provides that the Authority is not required to accept new information from a person who fails to comply with a relevant direction but that provision, in my view, goes to an antecedent discretion whether to embark upon the consideration required by s 473DD, which in turn is a qualified prohibition on the receipt of new information. In other words, the Authority has a discretion, enlivened by a finding of a failure to comply with a relevant direction, whether to embark upon the consideration of s 473DD at all. By embarking upon that consideration, the Authority had, in my opinion, moved beyond the exercise of that antecedent and non compellable discretion.

1. Section 473DD of the Act at the relevant time provided:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. I accept that on a proper construction of s 473FB(5) of the Act, the subsection gives the Authority power to excuse non-compliance with the Practice Direction and to effectively accept that it has been provided with the new information, in which case if the Authority excused the non-compliance, the question becomes for the purposes of s 437DD whether the Authority should actually consider the new information.
2. The Authority at [4] and [5] of its reasons dealt with the issue of the new information as follows:
   1. On 14 August 2019 the applicant's representative provided written submissions. The submissions contain legal argument and respond to the delegate's decision.
   2. The submissions themselves do not contain new information, however the representative has footnoted a number of articles and reports that are new information. Copies of the articles have not been provided to the Authority, as is required by the Authority's Practice Direction. In the circumstances I have not accepted the footnoted articles and reports, nor used my discretion to obtain any of the articles.
3. Mr Godwin argued that the Authority's reasons at [5] disclose that the Authority considered that pursuant to s 473FB(5) of the Act, it was required to mandatorily exclude the new information. Mr Godwin contended that this was so because of the sentence "In the circumstances", which Mr Godwin submitted was a reference to the circumstances referred to in the preceding sentence of [5] of the reasons (that the applicant had not complied with the Practice Direction), and it was for that reason the Authority decided it was not able to have regard to those articles and reports. Further, Mr Godwin argued that the words at [5] of the Authority's reasons, "nor used my discretion to obtain any of the articles", fairly read was the Authority turning its mind to the power in s 473DC of the Act, which provided as follows:

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(b) the Authority considers may be relevant.

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

1. I find given the Authority's reasons at [5], the Authority was aware that there was non-compliance with the Practice Direction, because it stated " [c]opies of the articles have not been provided to the Authority as is required by the Authority's Practice Direction". I disagree with Mr Godwin's interpretation of the Authority's last sentence in [5], as he overlooks both the comma and the need to consider the sentence in its entirety. I find that in the last sentence, the Authority was saying "[i]n the circumstances", being a reference back to there being non-compliance with the Practice Direction, the Authority had decided not to accept the footnoted articles nor use its discretion to obtain any of the articles, reflecting an appreciation that the Authority had the power to obtain the documents and effectively accept the documents and excuse the non-compliance..
2. Further, I reject Mr Godwin's argument that the words "nor used my discretion to obtain any of the articles" is a reference to the Authority deciding whether to get the new information for the purposes of s 473DC of the Act (set out at [25] of this judgment), because if the Authority had been considering whether to exercise the power under that provision, it would have asked itself the question mandated under s 473DC(1)(b), which was whether the Authority considered the new information "may be relevant". The Authority did not engage in such enquiry in the last sentence of [5] of the reasons which supports a fair reading of the last sentence that it was not considering s 473DC.

Whether any error in the Authority's construction of s 473FB(5) was material to the applicant's case

1. If I am wrong and there was an error in construction of s 473FB(5), then I find that any such error was not material such as to give rise to a jurisdictional error.
2. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [14], Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ said the approach the Court is required to take on finding error is as follows:

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

... a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

1. I find that any error of construction of s 473FB(5) (which I have found there was not) could not be material for the following reasons:

(a) Even if the Authority exercised any power or discretion pursuant to s 473FB(5) in the applicant's favour, the applicant would still need to satisfy the requirements of s 473DD as to that new information before the Authority could lawfully consider it.

(b) The relevant information, being the information identified at [20(a)] of this judgment, predated the delegate's decision such that it could have been provided to the delegate and was not credible personal information. Accordingly, even if the s 473FB(5) discretion was exercised in the applicant's favour, the mandatory requirements in s 473DD could not be met and that section required exclusion of the new information in this case.

1. Further, I am not persuaded that it was the Legislature's intention that a failure to properly construe s 473FB(5) would result in invalidity, without consideration of the extent and consequences of the error. Section 473FB(5) deals with a procedural step rather than an inviolable restraint conditioning the Tribunal's jurisdiction to conduct and decide a review. Therefore, a failure to comply with a procedural step requires consideration of whether the applicant was denied a fair hearing: Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [34] to [36]. For the reasons set out at [32] of this judgment, I find the new information that the applicant sought to rely on had to be mandatorily excluded from the Authority's assessment of the applicant's claims and therefore it can be seen that the applicant did not lose an opportunity to have that material considered.
2. Accordingly, no jurisdictional error is disclosed by ground 1.

Grounds 2 and 3 - Failure to consider a claim and complete the review

1. Mr Godwin submitted that grounds 2 and 3 be dealt with together. Mr Godwin pointed to [21] of Authority's reasons, which stated that "based on country information on the Basij, that it is possible he was beaten once whilst walking in public with a girlfriend". Mr Godwin argued that based on that reasoning, the Authority accepted that the applicant had been beaten once by the Basij whilst walking in public with a girlfriend. Given that acceptance, Mr Godwin submitted that the Authority failed to complete the review and failed to address a claim that clearly arose from its findings, insofar as the Authority failed to assess whether the applicant would engage in similar activities in the future with a girlfriend if he returned to Iran and be harmed by the Basij (Future Walking claim).

Relevant legal principles as to a failure to consider a claim or an integer of a claim

1. The Full Court of the Federal Court of Australia (per Collier, McKerracher and Banks-Smith JJ) in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) set out the broad principles concerning the obligation of administrative decision makers to consider all of the claims and integers of claims in a visa application (at [18]) as follows:

• 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] FCA 1802; (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 in original)

• 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

1. 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.
2. 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.

1. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (WAEE), the Full Court (French, Sackville and Hely JJ) stated the following at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. I find that the Future Walking claim was not a clearly articulated claim and it did not emerge from the material before the Authority. This is because the way the applicant presented his claims over time changed and was as follows:

(a) First, during the arrival interview on 19 June 2013, the applicant gave the following answers to the Department's questions regarding why he left Iran (CB 9):

32. Why did you leave your country of nationality (country of residence)?

Q. Briefly tell me why you left your country?

A. There is a BASIJ base in the area that i live and they are always disturbing us me and my girlfriend we have been harassed by the BASIJ everyday. We have been bashed by them my girlfriend had injuries on her face and i had injuries around my body, shoulder and head and they were threatening us with if you keep having this relationship we will be really harsh to you and there will be a death threat.

Q. Why were the BASIJ harassing you?

A. Because having a girlfriend or boyfriend is forbidden i was always living with fear, can you cannot walk with a girl in the street in front of them. I couldn't get work licence and if i wanted to do any job without the licence they were bugging me again. I was in their centre of attention and because there base was close to our house and it was impossible for us to go back to our house.

(b) Second, the applicant stated the following reason for leaving Iran in his statement of claims dated 21 September 2016 attached to his protection visa application, at which time he was represented (CB 65 and 66):

1. I left Iran because I had problems with the Basij Force. They had a base next to our building and, once realized that I was not married to my ex-girlfriend, raided my place. They entered the premise without a warrant. I tried to resist and we had a physical confrontation during which my ex-girlfriend and I were seriously injured. This cases consequent issues and I had to leave Iran.

...

1. To live as an unmarried couple in Iran is against Islamic Sharia and this was an opportunity for young underage Basiji guards to make some troubles.
2. Two of them knocked at my door. They said they wanted to enter the apartment because we had "an illegitimate affair". I responded that they could only enter if they had a warrant.
3. They went back to the base and came back with a middle-aged Basij officer. They wanted to enter the apartment again and I asked for the warrant again.
4. They entered my apartment by force. I tried to react and they pushed me to the ground. When I was on the floor they hit me from behind.

(c) Third, the applicant provided post-interview submissions dated 10 May 2019 to the Department that were prepared with the assistance of the applicant's earlier representatives, in which the applicant expressly resiled from having made an earlier claim that he could not walk in the street with a girlfriend and that he had been beaten for doing so (CB 107) as follows:

2. Being beaten while walking versus being beaten at home

In both the entry and the SHEV interview, I mentioned 'you cannot walk with a girl in the street in front of them' or a statement very close to this line. This was a misunderstanding, and I did not mention that I was beaten while walking in the streets.

(d) Fourth, in further post-interview submissions prepared by the applicant's subsequent representatives (CB 128 to 130), no reference was made to the claim made by the applicant that when he returned to Iran, he would walk with a girlfriend and be beaten, or similar.

(e) Fifth, the applicant's representatives provided submission (CB 158 to 161) which did not advance any claim for protection on the basis that the applicant had been beaten in the street by the Basij or that it may occur in the future.

1. It can be seen from the preceding paragraph that the applicant has been given several opportunities to put forward his claims for protection, including in multiple submissions prepared by his representatives. I find that the applicant's reason for fearing harm if returned to Iran was initially because he claimed he had been beaten by the Basij for walking in the street with a girlfriend, however he expressly withdrew this claim in his post-interview submissions dated 10 May 2019 to the Department, and at the final opportunity claimed fear for reasons other than walking in the street with a girlfriend.
2. Further, I find that the Future Walking claim does not arise from the Authority's own findings because I find that there was no factual foundation that the applicant would engage in the forbidden conduct of walking with a girlfriend in public for the Authority to consider the Future Walking claim. It is noted that the Authority at [43] of its reasons found in relation to the occasion the applicant claimed to have been bashed by the Basij when walking with a girl to be a one off incident and considered it was too speculative to find that because he was beaten once, there was a real risk he would face harm from the Basij in the reasonably foreseeable future. I note the said finding was made under the complementary protection provisions of the Act, however reading the decision as a whole, that finding is also relevant to considering whether when looking at the Authority's reasons an unarticulated Future Walking claim arose on the Authority's own findings.
3. I also find that the Authority was not required to consider claims which were founded on "mere hypothetical scenarios" or required "constructive or creative activity by the Tribunal": ADU18 v Minister for Home Affairs [2020] FCA 366 at [24] (Derrington J); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1; [2004] FCAFC 263 (NABE) at [58] (Black CJ, French and Selway JJ).
4. Accordingly, no jurisdictional error is disclosed by grounds 2 and 3.

1. As no jurisdictional error has been disclosed, the application must be dismissed.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.