FDO18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1040

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) made 27 August 2018. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant's 866) visa (visa).
2. The application for judicial review is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Act).

1. The time within which to commence an application for judicial review in this Court is prescribed by s 477(1) of the Act. An application must be commenced within 35 days of the date of the Tribunal's decision.
2. In this case, the application was commenced on 3 October 2018 which was more than 35 days after the date of the Tribunal's decision on 27 August 2018. Therefore, the applicant must obtain an extension of time from the Court pursuant to s 477(2) of the Act.
3. To obtain an order extending the time within which to file an application, the Court must be satisfied that it is necessary in the interests of the administration of justice to make an order for an extension (s 477(2)(b) of the Act).
4. The applicant says that he misunderstood the requirements of the Act. He claims that he did not receive a copy of the Tribunal's written record of decision until 29 August 2018 which was two days later than the date the decision was made. The applicant calculated the last date for filing his application for judicial review as 3 October 2018, which was the date on which his application for judicial review was filed with the Court.
5. The delay was short and inadvertent. The Minister does not oppose an extension of time and is not prejudiced by the Court extending time. In the circumstances and given the short period of delay, the candid explanation for the delay, the substantial grounds of review raised by the applicant in his application and the overarching obligations of the Court to facilitate the prompt and efficient resolution of proceedings, the Court finds that an extension of time is necessary and in the interests of the administration of justice. The time within which to commence this proceeding will be extended to 3 October 2018.

1. Reference in these reasons to 'CB' pages are references to the Court Book that was tendered and admitted as evidence at the hearing and designated exhibit 'R2'.
2. The applicant is an Iranian national. He first arrived at Christmas Island, Australia on 19 January 2012 by boat. He was travelling with his nephew and claimed to be stateless with no passport on arrival (CB 13, 38). He was later transferred to Immigration Detention in Darwin (CB 11).
3. On 22 March 2012, the applicant attended an Irregular Maritime Arrival Entry Interview with a delegate of the Minister (CB 11-24). In that interview, the applicant explained the circumstances of his departure from Iran (CB 20):

"Because I am Kurdish Faili we have been expleted (sic) from Iraq and have no identity in Iran.

I have a problem with the whole system/Government and it is a religious problem. I belong to a group named Farghan, that has had a problem with the Iranian Govt. We believe the Iranian leader is satan. Intelligence Agency get us and kill us. They have killed some of the group's leaders. They do not know at this time that I belong to this group or I would be dead.

My nephew who is 15 he couldn't come himself and he wanted to come to be with his father."

1. The applicant said that he departed Iran using a fake passport to fly by aircraft to Malaysia. He then flew by aircraft to Indonesia, where he boarded a boat arranged by people smugglers bound for Australia where he hoped to be reunited with his brother who lives in Melbourne (CB 16, 18, 21, 22-24).
2. On 31 May 2012, the applicant was informed that the Minister would allow the applicant to apply for a Protection visa and that a migration agent would be appointed to assist him in the visa application process (CB 25).
3. The applicant applied for the visa on the same day (CB 26-55). Attached to the application was a statement signed by the applicant and witnessed by a solicitor (CB 87-91). In that statement, the applicant repeated his claim that he feared persecution by Iranian authorities because of his religious beliefs, was of Kurdish Faili ethnicity and was stateless. He claimed he could not have a passport, birth certificate or the right to education (CB 87).
4. On 7 June 2012, the applicant attended a Protection visa interview with a delegate of the Minister (CB 94-105). The delegate was satisfied that the applicant was a person to whom Australia owed protection obligations (CB 105).
5. On 23 August 2012, the applicant was granted the visa (CB 106-7).
6. On 14 December 2016, a delegate of the Minister wrote to the applicant expressing concern that information provided to the Minister in support of the application for the visa may have been false or misleading. In particular that the applicant was not a person who was 'stateless' but in fact was entitled to citizenship by birth and entitled to enter and reside in Iran and that the applicant was not of Kurdish ethnicity as claimed. The letter invited the applicant to comment and gave notice that the Minister intended to cancel the visa under s 109 of the Act (Notice of Intention to Cancel) (CB 119-134).
7. On 11 January 2017, the applicant retained a solicitor to act on his behalf. The solicitor asserted that the Notice of Intention to Cancel was invalid (CB 135).
8. On 22 February 2017, the Minister sent an amended Notice of Intention to Cancel the visa (CB 143-156). The applicant was provided with fourteen days (until 8 March 2018) to respond.
9. On 9 March 2017, the solicitor for the applicant sought an extension of time within which to respond to the amended Notice of Intention to Cancel (CB 157). The extension of time was refused by the Minister (CB 163).
10. On 20 March 2017, the solicitor for the applicant provided a response to the Notice of Intention to Cancel. The applicant conceded that he provided wrong information to the Minister but sought that the visa not be cancelled because he was an otherwise law-abiding contributor to Australian society (CB 168-178).
11. On 21 June 2017, a delegate of the Minister gave notice to the applicant of cancellation of the visa. The reasons given were substantially the same as the grounds given in the Notice of Intention to Cancel (CB 180-199).
12. On 23 June 2017, the applicant applied to the Tribunal to review the delegate's decision to cancel the visa (CB 264-5).
13. On 5 June 2018, the Tribunal invited the applicant to attend a hearing before the Tribunal in Melbourne on 16 July 2018 (CB 273-6).
14. On 16 July 2018, the applicant attended a hearing before the Tribunal. He was represented by a solicitor and did not require the assistance of an interpreter (CB 288-291).
15. On 7 August 2018, the solicitor for the applicant provided the Tribunal with a statement of claims from the applicant (CB 297). In that statement, the applicant claimed that he now feared persecution if he were to return to Iran because he was now an atheist and has a tattoo on his arm with an atheist symbol. The tattoo was obtained the week prior to the Tribunal hearing in July 2018 (CB 299-300).
16. On 29 August 2018, the Tribunal delivered written reasons for decision dated 27 August 2018 affirming the delegate's decision to cancel the visa (CB 310-330) (Decision).

1. In the Decision, the Tribunal was satisfied that the Notice of Intention to Cancel was validly given pursuant to s 107 of the Act (CB 314-5 [9]-[13]). It was also satisfied that the applicant misled the Minister by providing false information to obtain the visa (CB 315 [14]-[17]).
2. The Tribunal then considered exercising the Tribunal's discretion not to cancel the visa. The Tribunal identified the prescribed circumstances in reg 2.4 of the Migration Regulations 1994 (Cth) (Regulations). In doing so, the Tribunal considered the applicant's explanation for giving false information, the applicant's personal circumstances, remorse and the applicant's new claim of persecution due his atheist beliefs (CB 316 [26], [29], 318-321 [40]-[58]). The Tribunal accepted that the applicant did not wish to return to Iran, however it gave more weight to the fact that the applicant provided incorrect information to the Minister that was central to the decision to grant the visa (CB 315-322 [18]-[63]). Having regard to all the relevant circumstances, the Tribunal concluded that the visa should be cancelled (CB 322 [64]).

1. The applicant commenced proceedings for judicial review in this Court on 3 October 2018. The application was supported by an affidavit affirmed by the applicant on 3 October 2018 that attached a copy of the Decision (CB 331-356).
2. The applicant identified one ground of review with nine supporting particulars (CB 334). The ground of review was that the Tribunal misapplied, misunderstood or misconstrued the applicable law and failed to ask the correct question in relation to the applicant's claim to have a well-founded fear of persecution because of his atheist beliefs. The Tribunal also failed to consider whether the applicant faced a real risk of 'significant harm' because of his tattoo and claimed that apostasy of Islam is punishable by death in Iran.
3. On 30 April 2025, the applicant filed an amended application for judicial review in which the applicant identified five new grounds for review. They were:

Ground 1: The Tribunal fell into jurisdictional error by failing to consider the applicant's claim for protection based on religion.

Particulars:

1. The Applicant's original protection visa claim was based, in part, on a fear of harm in Iran due to his adherence to the Furqan religion.

2. This claim was articulated in his statutory declaration dated 31 May 2012 and was accepted by the delegate in the decision dated 23 August 2012.

3. The Tribunal did not engage with or make any findings in relation to this claim.

4. The Tribunal was required to consider all claims advanced by the applicant and its failure to do so amounted to jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

Ground 2: The Tribunal fell into jurisdictional error by making a finding that was legally unreasonable and not supported by evidence.

Particulars:

1. The Tribunal found that the applicant had been granted a protection visa in 2012 solely because he is a Faili Kurd and stateless.

2. That finding was inconsistent with the original delegate's reasons dated 23 August 2012, which clearly referred to religion (Furqan) as the central basis of the protection claim.

3. There was no evidence before the Tribunal to support the finding that ethnicity and statelessness alone formed the basis of the original grant.

4. The decision was legally unreasonable and lacked an intelligible justification.

Ground 3: The Tribunal failed to consider relevant and mandatory considerations under s 109 and reg 2.41 of the Migration Regulations 1994 (Cth).

Particulars:

1. The Tribunal was required to consider the matters set out in reg 2.41(2), including the applicant's length of residence in Australia, employment history, community contributions, and the passage of time since the conduct.

2. The applicant provided submissions dated 19 March 2017 addressing these matters in detail.

3. The Tribunal's reasons do not demonstrate active consideration of these factors, and in particular do not engage with the applicant's evidence about his rehabilitation, family circumstances, and ties to the community.

4. The Tribunal's failure to engage with relevant considerations constituted jurisdictional error: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332.

Ground 4: The Tribunal failed to consider relevant country information going to whether the applicant could be removed to Iran.

Particulars:

1. The Tribunal was required to consider whether the applicant could be lawfully and practically removed to Iran.

2. DFAT country information (and other publicly available material) confirms that Iran does not accept involuntary returns of its nationals and stateless persons.

3. The Tribunal made no reference to this material or to the prospect that the applicant may be indefinitely detained if removal is not practicable.

4. This failure to consider critical and relevant material constituted jurisdictional error.

Ground 5: The Tribunal's finding that the applicant remains a Muslim and does not genuinely identify as an atheist was legally unreasonable.

Particulars:

1. The applicant gave evidence that he no longer believes in Islam, does not fast, pray, or attend religious services, and identifies as an atheist.
2. The Tribunal accepted much of this evidence but nevertheless concluded that he was not "genuinely" an atheist and remained a Muslim.
3. This conclusion was illogical, irrational, and not supported by the evidence.
4. The reasoning was infected by an arbitrary and speculative assessment of religious identity and failed to consider the significance of perceived apostasy in Iran.
5. The finding lacked an intelligible justification and was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

1. The hearing of the amended application for judicial review took place at Melbourne on 20 May 2025. Ms Finegan of counsel appeared for the applicant. Mr Sypott of counsel appeared for the Minister. Both parties filed outlines of written submissions and bundles of relevant authorities before the hearing.

1. The applicant submitted that the Tribunal erred in the Decision by failing to consider the applicant's original claims for protection and his new claims for protection. The original claim referred to was that the applicant was a supporter of the Furqan faith, which was raised in the applicant's statement dated 31 May 2012 and accepted in the delegate's decision (CB 88-9, 103). This was a failure to consider a claim clearly made and arising from the material before the Tribunal (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ).
2. The Decision was also unreasonable because of the Tribunal's conclusion that the false statement of 'statelessness' was central to the decision to grant the visa (CB 316 [24], 322 [63]). Instead, the Tribunal ought reasonably to have concluded that the visa was granted because the applicant was a follower of the Furqan faith, which exposed him to persecution and serious harm. The applicant also relied on the delegate's decision to grant the visa and the acceptance by the delegate that the applicant had been beaten by Iranian authorities (CB 102-5). It was submitted that there was no evident and intelligible justification for the finding that 'statelessness was central to the decision to grant the visa' (see Minister for Immigration and Citizenship v Li [2012] HCA 61; [2013] 249 CLR 332 (Li) at [76] per Hayne, Kiefel and Bell JJ).
3. Further, the Tribunal's adverse findings about the applicant's claim for protection were factually incorrect and legally unreasonable (CB 322 [63]). This rendered the Decision legally unreasonable, and the Tribunal's reasoning resulted in material jurisdictional error.
4. Next, the Tribunal erred by failing to properly consider prescribed circumstances under s 109 of the Act, namely, the applicant's employment history, commitment to home ownership and law-abiding conduct since the grant of the visa. Although the Tribunal gave these factors some weight, it was submitted that the Tribunal's consideration was cursory and there was no 'active intellectual process' applied to the exercise of the statutory task.
5. It was submitted that the Tribunal also erred by failing to consider as a relevant fact that the Islamic Republic of Iran did not accept the involuntary return of its nationals. This fact was referred to in DFAT country information for Iran dated 7 June 2018. The Tribunal referred to that country information at CB 319 [49], 321 [55] and 321-2 [60] but omitted reference to paragraph 5.23 of that DFAT Report. This meant that return to Iran was not practically possible at the time of the Tribunal hearing and the applicant could face indefinite detention in Australia. The review process of the Tribunal is inquisitorial, and the Tribunal should have been aware of and considered this material and fundamental fact. A copy of the DFAT Report was produced by the solicitors for the Minister and annexed to an affidavit affirmed 14 May 2025 (Exhibit 'R1'). Counsel for the applicant relied on WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463 at [123] and [132] per Kenny and Mortimer JJ for the proposition that this is a relevant matter that should be taken into account by the Tribunal.
6. Finally, the Decision was legally unreasonable. It was submitted in the applicant's outline of written submissions that it was unreasonable for the Tribunal to find that the applicant had not changed his religious beliefs. It was submitted that no rational decision-maker could have arrived at this finding on the same evidence. The Tribunal failed to reasonably consider that the applicant no longer believed in Islam and is therefore at risk of persecution or significant harm if he returned to Iran. This ground was abandoned by Ms Finegan at the hearing before this Court. Therefore, it is not necessary to consider that ground of review.

1. The Minister relied on the principles recognised by the Full Court of the Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (NABE) at [55] and [68] per Black CJ, French and Selway JJ. The Tribunal is only required to consider substantial clearly articulated argument relying on established facts or claims which clearly emerge or are 'squarely raised' from the materials before the Tribunal (NABE at [58]). It was submitted that a finding that a claim clearly emerges from the materials is not to be made lightly and it is not sufficient that a claim might be said to arise from the materials, especially where the applicant is represented before the Tribunal (see CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74]- [75] per Thawley J).
2. It was submitted that the claim that the applicant feared persecution or significant harm due to his adherence to the Furqan faith was not a claim that clearly arose before the Tribunal when reviewing the cancellation decision. It was a claim made for the original visa, but not one articulated before the Tribunal where it was contended that the applicant was an atheist with no religious beliefs.
3. However, in the Decision the Tribunal did consider previous claims to the extent that they were relevant (CB 320 [53]). The Tribunal considered whether the applicant would suffer persecution because of past religious beliefs and the Tribunal found that the applicant did not fear harm because of past beliefs. Therefore, ground one of the amended application for review should be dismissed.
4. The findings of the Tribunal in the Decision were also not 'unreasonable' findings (CB 316 [24], 322 [63]). There was nothing 'illogical or irrational' about the Tribunal finding that the claim of 'statelessness' was central to the grant of the Protection visa. The process of reasoning of the Tribunal in making this finding was clearly open. The fact that the applicant claimed to be 'stateless' informed the conclusion of the delegate that the applicant did not have a right to enter any other country and explained his arrival in Australia without a passport or other identification documents. It was open to the Tribunal to find that the applicant's claims were central to the decision to grant the visa in the circumstances presented. The finding that the applicant's incorrect information, that he was stateless Faili Kurd, was central to the decision to grant the visa, was supplemented by the observation that decision to grant the visa was based in large part on the incorrect information provided by the applicant (CB 322 [63]). When read in the context of the applicant's concession that he provided false information, the finding was clearly open and reasonable in the circumstances.
5. It was submitted that each of the representations or claims made by the applicant in the submissions prepared on his behalf by his representative, were considered by the Tribunal in the Decision and there was no failure to engage in an active intellectual process. The applicant's complaint in ground three of the application for judicial review was to the weight given by the Tribunal to the claims made. The Tribunal's obligation was to have regard to the prescribed circumstances and not to give them any favourable weight. The weight to be given to the applicant's evidence is a matter for the Tribunal and not the Court on judicial review. The Tribunal was also entitled to give weight to the fact that the applicant provided incorrect or misleading information in his application for the visa. There was no failure to consider mandatory requirements, and the Tribunal did not err in the statutory task.
6. Finally, it was submitted that there was no failure to consider the consequences of the cancellation of the visa. The applicant did not claim that he would be rejected by Iranian authorities if he were to return to Iran or that his return would be involuntary. The DFAT Report referred to by the applicant in submissions was considered by the Tribunal. However, the sections of it now relied on by the applicant were not squarely raised as a consequence of involuntary return, or that there was in fact a policy of rejection that would or could be applied to the applicant upon cancellation of the visa. There was also no evidence before the Tribunal that the applicant may be detained indefinitely, however the Tribunal did consider that indefinite detention was not a likely consequence of cancellation (CB 322 [62]). The applicant was represented at the hearing before the Tribunal and no claim of possible rejection by Iran at the receiving country was made or raised to that effect. There was also no clear submission or claim that return to the receiving country would have broader consequences for family and there was no evidence given by the applicant to that effect. The Tribunal was aware that the applicant had a brother and nephew in Melbourne and that the applicant had established a home and life in Australia since the grant of the visa, but there was no failure to give due consideration to relevant circumstances when affirming the decision to cancel. The Tribunal did consider the legal consequences of the decision to cancel and the degree of hardship that may be suffered but gave determinative weight to other matters.

1. Sections 101, 107, 108 and 109 of the Act relevantly provide as follows:

101 Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a) all questions on it are answered; and

(b) no incorrect answers are given or provided.

107 Notice of incorrect applications

(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a written notice:

(a) giving particulars of the possible non‑compliance; and

(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i) if the holder disputes that there was non‑compliance:

(A) shows that there was compliance; and

(B) in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance - shows cause why the visa should not be cancelled; or

(ii) if the holder accepts that there was non‑compliance:

(A) give reasons for the non‑compliance; and

(B) shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa...

108 Decision about non‑compliance

The Minister is to:

(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.

109 Cancellation of visa if information incorrect

(1) The Minister, after:

(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances;

may cancel the visa.

(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

(3) If the Minister cancels a visa under subsection (1), the Minister must give the former holder of the visa a written notice that:

(a) sets out the decision; and

(b) specifies the ground for the cancellation; and

(d) if the former holder has a right to have the decision reviewed by application under Part 5--states:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made.

(4) The notice under subsection (3) must be given in the prescribed way.

(5) Failure to give notice of a decision does not affect the validity of the decision.

1. At the time of the Decision the prescribed circumstances in the Regulations were in reg 2.41 and were as follows:

2.41 Whether to cancel visa - incorrect information or bogus document (Act, s 109(1)(c))

For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

(a) the correct information;

(b) the content of the genuine document (if any);

(c) whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

(d) the circumstances in which the non-compliance occurred;

(e) the present circumstances of the visa holder;

(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

(g) any other instances of non-compliance by the visa holder known to the Minister;

(h) the time that has elapsed since the non-compliance;

(j) any breaches of the law since the non-compliance and the seriousness of those breaches;

(k) any contribution made by the holder to the community.

Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non-compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.

1. The statutory framework was considered by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [4], [9] and [10] per Stone, Foster and Nicholas JJ. In that case, the Court was considering the provision of a bogus document (s 103 of the Act) but at paragraph [4] the Court explained the operation of the Act as follows:

[4] Under s 109 of the Act, once the Minister has decided that a holder of a visa has contravened s 103 of the Act and has given to that person a notice under s 107 of the Act, the Minister may cancel the visa held by that person. The Minister may only cancel a visa under s 109(1) of the Act after he has considered the visa holder's response to his s 107 notice and after he has had regard to "any prescribed circumstances". The prescribed circumstances for the purposes of s 109(1)(c) of the Act are found in reg 2.41.

[57] Section 109(1)(c) of the Act obliges the Tribunal to "have regard to" the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as "an active intellectual process" in which each of the prescribed circumstances receives his or her "genuine" consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).

[58] In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.

[83] In our view, it is incumbent on the visa holder who is engaged in the visa cancellation process envisaged by s 109 to articulate facts, matters and circumstances to which he or she suggests the Minister should have regard as required by reg 2.41. The reg 2.41 criteria direct the Minister's attention to particular factors at a general level but it is for the visa holder to shape and mould the Minister's consideration of those criteria by reference to his or her individual circumstances. Whilst the Minister must, of course, have regard to material, information and documentation in his possession which properly fall within the purview of the reg 2.41 criteria, irrespective of their source, it will largely fall to the visa holder to flesh out that material in order to enable the Minister's discretion to be properly exercised. For example, consider the criteria in reg 2.41(a), (e), (f) and (k). If the visa holder does not address those criteria with evidentiary material and submissions, it is not likely that there will be much material (if any) before the Minister for him or her to consider and evaluate. In that event, it is not likely that there will be much for him or her to say about those criteria.

1. Here, it was conceded by the applicant before the Tribunal that he provided incorrect information in his application for the visa and that there was non-compliance with the Act in the way described in the s 107 notice given by the Minister (CB 173). The prescribed circumstances were then identified and addressed by his then solicitor in submissions prepared on the applicant's behalf and relied on before the delegate and Tribunal (CB 174-178). The applicant also provided a 'statement of claims' to the Tribunal in the form of a statutory declaration prepared by the applicant's solicitor and signed by the applicant (CB 299-300). In that document, the applicant spoke of new fears of persecution due to his abandonment of religion. It is through the prism of the applicant's concession of providing incorrect information and those submissions that the Decision must be construed as a whole and not 'minutely and finely with an eye keenly attuned to the perception of error' (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 [30] per Brennan CJ, Toohey, McHugh and Gummow JJ).
2. This framework is important when considering the grounds on which the applicant now contends the Tribunal erred in making the Decision. For the reasons that follow, each ground has been considered and is rejected, and the amended application for judicial review will be dismissed.

1. At the time of making the Decision, the applicant no longer subscribed to the Furqan faith. He gave evidence before the Tribunal that he was an atheist. He did not claim that he would be persecuted or feared harm due to past religious beliefs and the Tribunal found that he would not be harmed for this reason (CB 320 [53]). Therefore, the submission that the Tribunal should have considered the applicant's former beliefs when assessing whether there was a risk of serious harm or significant harm is misconceived. In the Decision, the Tribunal was required to review the Decision to cancel the visa for providing incorrect information under s 101 of the Act. It was required to assess the prescribed circumstances. However, the weight to be given to those circumstances was a matter for the Tribunal provided that it engaged in an 'active intellectual process', which it did in relation to the applicant's former claims to the extent that they remained relevant to the circumstances and evidence before the Tribunal.
2. The applicant's claims as considered by the original delegate when assessing the application for the visa were different to the claims made before the Tribunal. The findings of the original delegate as to the applicant's fears of persecution were no longer relevant, except to the extent that the applicant may fear persecution for past religious beliefs. The Tribunal was also required to weigh the claims made by the applicant at the time of the application against the fact that the applicant admittedly and deliberately provided incorrect information to assist him to obtain the visa. There was no failure to consider a claim squarely raised or arising on the materials and no failure to discharge the statutory task. The Tribunal considered the applicant's claim that he feared harm because he was now an atheist, but was not satisfied and considered those claims to be manufactured and that was no real chance that the applicant would suffer serious harm or significant harm because he was an atheist (CB 319 [47]). The Tribunal also considered that Iranian authorities were unlikely to pay attention to failed asylum seekers on their return to Iran and have little interest in prosecuting them in relation to protection claims (CB 320 [51]). The Tribunal found that the applicant would not be imputed to hold Furqan beliefs if returned to Iran (CB 320 [52]). There was no jurisdictional error of the kind identified by the applicant in ground one of the amended application for judicial review.

1. There was nothing unreasonable in the finding of the Tribunal that the applicant's claim to be 'stateless' was central to the decision to grant the visa (CB 316 [24], 322 [63]). That was an inference that was clearly available from the delegate's reasons for granting the visa (CB 95-105), from the reasons given in and for the Notice of Intention to Cancel (CB 143-150) and in the decision to cancel (CB 180-193). It was not a finding that was illogical or irrational in the sense identified in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]- [136] per Brennan and Bell JJ or DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30(4)] per Kenny, Kerr and Perry JJ.
2. The incorrect statement by the applicant that he was 'stateless' did not simply inform the conclusions reached by the original delegate as to the country of reference or the right to enter or reside in a third country. The claim to be stateless went to the facts and circumstances that the applicant claimed to exist that gave rise to his reason for fleeing Iran, the harm and persecution he feared, why he feared that harm and required protection under the 1951 Refugee Convention. It was not unreasonable, illogical or otherwise arbitrary for the Tribunal to reach a conclusion that his statelessness was central to the decision to grant the visa and the finding does not establish a jurisdictional error in the reasoning in the Decision. The finding does not lack an 'evident and intelligible justification' as the Court observed in Li at [76]. To the contrary, having conceded that the information upon which the application for the visa was approved was incorrect as to a material fact, it was not unintelligible to conclude that fact was 'central' to a previous decision maker's conclusion. Especially when the reasons for decisions were clearly disclosed and scrutinised by the Tribunal. Simply because minds might differ as to the relevant state of mind of the decision maker does not mean the reasoning of a Tribunal on review is necessarily unreasonable or unintelligible. The submission that the findings at paragraphs [24] and [63] of the Decision are factually incorrect is also rejected for these reasons.

1. The consideration by the Tribunal of the prescribed circumstances in reg 2.41 of the Regulations was not erroneous. The Tribunal identified the criteria in the regulation and then assessed them. In particular, the Tribunal considered whether the decision to grant the visa was based 'wholly or partly"' on incorrect information (reg 2.41(c)). The evaluative process undertaken by the Tribunal was to weigh each of the prescribed circumstances against the evidence presented by the applicant and the claims made in his submissions. Simply because the Tribunal did not refer in detail to a claim does not mean it was not considered or given weight. In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at 599 [25] and [26] per Kiefel CJ, Keane, Gordon and Steward JJ the Court said:

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness (57). What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations (58). The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations (59). The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them (60).

[26] Labels like "active intellectual process" (61) and "proper, genuine and realistic consideration" (62) must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised" (63). That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (64), "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

1. When considered in the context of the Decision, the consideration given to the applicant's circumstances was proportionate to the length, clarity and degree of relevance given to them by the applicant in the submissions and evidence as summarised (CB 345-6 [25]-[33], 351 [63]). The Tribunal did assess the circumstances cumulatively and undertook the required weighing process, and when viewed as a whole, was not cursory and did not reveal a failure to carry out the jurisdictional task. The Tribunal was not required to give any more weight to any prescribed matter over another. The Tribunal was entitled to give weight to the prescribed circumstances as it saw fit. There was no jurisdictional error in the Tribunal's process or exercise of discretion.

1. The protection claims submitted by counsel to have been overlooked by the Tribunal, were not clearly made and did not clearly arise on the materials (NABE at [55] and [68]). The Tribunal did consider whether the applicant may be entitled to make another application for a Protection visa and the risk of detention (CB 322 [62]). It also considered whether there were other consequential cancellations under s 140 of the Act (which applies to dependants and family) and found that there were no consequential cancellations flowing from cancellation of the applicant's visa (CB 322 [62]). The Tribunal found that the applicant did not want to return to Iran and that he may suffer some degree of hardship but considered that those circumstances were outweighed by other matters (CB 322 [63]).
2. There was no evidence before the Tribunal that the applicant faced risk of border refusal by Iranian authorities if he was to return following cancellation of his visa. This claim, and the policy referred to in paragraph 5.23 of the DFAT country information, was not identified by the applicant's solicitors and did not clearly arise as an issue to be further weighed and considered by the Tribunal. There was no evidence that indefinite detention was a realistic consequence or possibility following cancellation of the visa and there was no material error by the Tribunal as submitted by the applicant. The Tribunal was required to consider the direct and immediate legal consequences of the cancellation and possible removal from Australia which it did at paragraphs [62] and [63] of the Decision. It also considered the applicant's contributions to the community and other factors submitted as relevant (CB 317-22 [33], [34]-[61]).
3. The reasoning of the Tribunal in the Decision does not disclose material jurisdictional error on the grounds identified in the amended application and applicant's submissions. The amended application for judicial review filed 30 April 2025 is dismissed.

1. The name of the Minister was changed on 13 May 2025 to 'Minister for Immigration and Citizenship'. An order will be made amending the name of the first respondent and the title to the proceeding.
2. Following the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), the name of the second respondent is to be amended to the 'Administrative Review Tribunal'. An order will be made amending the name of the second respondent and the title to the proceeding.

1. The Court will hear the parties on the appropriate disposition of costs.

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship';
2. The name of the second respondent is amended to 'Administrative Review Tribunal';
3. The time within which to commence the application for judicial review is extended to 3 October 2018; and
4. The amended application for judicial review filed 30 April 2025 be dismissed.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.