FEL18 v Minister for Home Affairs [2025] FCA 1508

1. On 29 September 2012, the appellant arrived in Australia as an Unauthorised Maritime Arrival (UMA).
2. On 5 October 2012, an arrival interview was held at which the appellant expressed concerns vis-à-vis Iran. Similar claims were made at an Irregular Maritime Interview held on 7 December 2012.
3. On 9 August 2013, the appellant applied for a Protection (Class XA) Subclass 866 visa, which was accompanied by a statement that set out claims as to inter alia fearing the Iranian authorities, his family and 'the society', based on his non-belief and non-participation in religious practice.
4. On 14 November 2015, the appellant was advised by the Department of Immigration and Border Protection that his application was invalid because he had arrived in Australia unlawfully, however, the Minister had exercised the power in s 46A(2) of the Migration Act 1958 (Cth) (Act) to lift the bar in s 42A(1) of the Act that prohibited UMAs from lodging, inter alia, a valid SHEV application.
5. On 11 May 2016, the appellant lodged a SHEV application. The accompanying statement was similar to his previous claims, and, additionally, claimed that he had rejected Islam, did not believe in any established religion, would be considered a heretic, and was at risk of being perceived as a traitor of Islam and a supporter of the West by the Iranian authorities, by virtue of having sought protection in a non-Muslim country.
6. On 4 October 2017, the appellant attended an interview with a delegate of the Minister (Delegate).
7. On 11 October 2017, his representative sent the Delegate a submission, which elaborated on his claims. The appellant inter alia claimed that he had renounced Islam, was no longer a practicing Muslim, and would be considered an apostate.
8. On 12 January 2018, the Delegate refused the application.
9. On 18 January 2018, the Delegate's decision was referred to the Authority for review.
10. On 13 February 2018, the appellant sent submissions and evidence to the Authority. The appellant inter alia claimed to have been baptised as a Christian on 14 July 2013, which claim was supported by a baptism certificate and letter of support from Pastor Keith Piper from Liberty Baptist Church, and a statutory declaration from the appellant in which he made declarations that inter alia focused on Christianity related claims.
11. On 17 August 2018, the Authority affirmed the decision under review.
12. On 24 October 2018, the appellant applied for judicial review. The grounds of review advanced at the hearing appear in an amended application. This application was dismissed on 6 February 2025.
13. On 19 February 2025, the appellant filed the notice of appeal presently before the Court.
14. On 24 February 2025, the second respondent, the Authority, filed a submitting notice.

1. At [4]-[10] of the Authority's decision (Decision), the Authority considered its obligations under s 473DD (now repealed) of the Act, particularly in the context of the appellant's submission and supporting documents of 13 February 2018, and an updated DFAT report regarding Iran available to it. It accepted that the statutory declaration could not have been provided earlier. It was not satisfied that there were exceptional circumstances to justify considering new claims and information from the appellant but was satisfied there were exceptional circumstances in respect of the DFAT report.
2. At [14]-[15] of the Decision, the Authority accepted that there may have been some mistranslation during the interview of 5 October 2012 and it placed less weight on that interview but did not accept that there were translation issues in the interview of 7 December 2012.
3. At [15]-[16] of the Decision, the Authority identified inconsistencies in claims regarding whether the appellant had been thrown out of the family home by his father and why he had discontinued his tertiary studies. It did not accept that the father had either disowned him or thrown him out. It found that his claims as to being expelled from university due to expressing his views regarding the Islamic faith was a fabrication. It also found the appellant had made inconsistent statements regarding his claimed poverty which significantly undermined his credibility.
4. At [17] of the Decision, the Authority did not accept that his uncles were senior members of the Iranian authorities.
5. At [18]-[19] of the Decision, the Authority found that it was satisfied that the appellant had abandoned Islam, his father was involved in the management of a local mosque, and his father used to beat him for not praying, but it did not accept that this led to him being of interest to the authorities.
6. At [19] of the Decision, the Authority found that the appellant had become an atheist since his arrival in Australia and that, if asked, he would not hide his religious views. However, he would not publicly declare his religious views upon return or volunteer that he had abandoned Islam or had become an atheist. This was not due to a fear of persecution but because he had not done so previously and had no desire to do so.
7. At [19], [24]-[25] of the Decision, the Authority accepted that abandonment of Islam was viewed as apostasy and formally punishable by death, noting a recent example of this, but found that the appellant would not experience harm as a consequence because he would not publicly declare that he had abandoned Islam or otherwise denounce Islam.
8. At [26] of the Decision, the Authority did not accept the appellant's claims as to the risk that failed asylum seekers face.

1. The first appeal ground asserts error by the primary judge in rejecting the appellant's contention that the Authority failed to correctly construe and apply s 473DD of the Act or that its decision concerning s 473DD was vitiated by illogicality.
2. Section 473DD stipulated that the Authority must not consider any new information unless two requirements were satisfied; that:

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

(b) the appellant satisfied the Authority that the new information (i) was not and could not have been provided to the Minister before the delegate's decision under s 65 was made (First Limb), or (ii) was credible personal information which was not previously known and, had it been known, may have affected the consideration of the claims (Second Limb).

1. The appellant submits that the authorities establish the following principles in respect of s 473DD:

(a) The proper performance of the task requires a correct understanding of (1) an applicant's claims, (2) the nature and content of the new information, and its potential significance, and (3) the visa criteria: BFV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 171 ALD 628; [2020] FCA 1362 at [55] (Charlesworth J).

(b) The assessment of whether the new information is credible as per the Second Limb involves an inquiry as to whether the new information is open or capable of being accepted as truthful, accurate or genuine. The Authority will have impermissibly imposed a higher standard than that required by the section if it assesses whether information is true or accurate, as opposed to being capable of having such a character: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]- [43] at [41]-[43] (Bromberg J).

(c) The correct approach is to assess the new information against sub-section (b) and, if that limb is satisfied, assess it against sub-section (a). There will be a failure to consider a mandatory relevant consideration if the Authority considers whether there are exceptional circumstances without first considering the sub-section (b) criteria: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [6] (Keifel CJ, Gageler, Keane and Gordon JJ); AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 at [60] (Feutrill J).

1. The appellant contends that the Authority's approach to s 473DD involved jurisdictional error in three respects identified as Particulars (a), (b) and (c), and that the primary judge erred in failing to so find.

1. The appellant contends that the Authority approached s 473DD without a correct understanding of the nature and content of the new information and its potential significance. The appellant's new information included a fear of harm based upon being a recorded Christian or being perceived as a Christian or Christian convert, the significance of which was that he feared harm as a consequence of being seen as a Christian, irrespective of whether the conversion was genuine. The appellant submits that it is apparent from the Authority's decision at [8] that, while it did not reject the proposition that the appellant engaged in external activities associated with Christian practice, it confined its consideration of the new Christianity claim, the pastor's letter and the baptism certificate as to the genuineness of the conversion.
2. There was no error on the part of the primary judge for rejecting the appellant's claim. I do not accept the appellant's submission that the Authority impermissibly confined its consideration of the new information. The appellant did not provide any information or submission to the Authority that expressly or implicitly suggested that he feared harm as a person who would be merely perceived as a Christian, as opposed to fearing harm because he was a Christian and this would have been discovered on his return to Iran. The Authority did not confine itself in its consideration of the new information about the appellant's Christian conversion. The Authority understood that the appellant's new claim was that he was a convert and faced harm on that basis. There was no misunderstanding by the Authority as to the basis of the claims advanced by the appellant. The appellant's claim that he was "now a recorded Christian" and that he would be at risk for being perceived as a Christian was advanced in support of the claim that the appellant had in fact converted to Christianity and had done so in adherence to genuinely held beliefs. There was no error in the Authority's understanding of the nature and content of the new information and its potential significance.

1. The appellant contends that the Authority approached its task by determining whether it was satisfied that the new information was true, rather than correctly asking whether it was "open or capable" of being accepted as truthful, accurate or genuine. The appellant submits that the correctness of this proposition is evident from the following:

(a) the Authority does not set out the correct test anywhere in its reasons or express its conclusion in these terms;

(b) the Authority's reasoning process at Decision [8] as to the new information appears to weigh the probative worth of the evidence, rather than limit itself to determining whether the new information was open or capable of being accepted. It rejected the credibility of the statutory declaration not by asking whether a sworn statutory declaration was capable of being accepted, but by assessing its consistency with earlier claims made by the appellant. As for the pastor's letter and baptism certificate, the Authority did not consider these documents as against the Second Limb at all; and

(c) had the correct question been asked, the Authority would have concluded that a statutory declaration, signed letter from a pastor, and baptism certificate were documents "capable" of being accepted.

1. Alternatively, the appellant submits that if the Authority had asked itself whether the appellant's statutory declaration, the pastor's letter and the baptism certificate were capable of supporting his claim of being a Christian rather than assessing their truth or accuracy, then the Authority's reasoning is vitiated by unreasonableness or illogicality.
2. There was no error by the primary judge in rejecting the appellant's argument that the Authority had misconstrued what "credible information" means in s 473DD of the Act: PJ at [80]-[81].
3. The Authority, at [8] of the Decision, noted that the appellant now claimed to have converted to Christianity in 2013 and to have informed his family in Iran of this, and that he had provided a baptism certificate and a letter from the Liberty Baptist Church in support. The Authority found that this claim was "completely at odds" with the appellant's central claim for protection which had consistently been made from 2013 - being that he had no religion. The Authority did not accept that this claim was credible, or that the information and claim could not have been provided earlier, or that there were exceptional circumstances to consider the claim or the church documents.
4. Contrary to the appellant's contention, the Authority did not misconstrue s 473DD of the Act by engaging in a final deliberative consideration of the conversion claim. The decision of the Authority reveals that the Authority's concern was that the new claim (that the appellant was baptised and converted to Christianity in 2013, which claim the appellant sought to support by the provision of the letter from the pastor and the baptism certificate) was "completely at odds" with his earlier claim that he was an atheist. This was a significant variation or development to the earlier claim. It was a new claim which was, as the Authority fairly observed, "completely at odds" with the earlier claim. It was on that basis (absent any satisfactory explanation from the appellant for having raised the new claim only before the Authority and not earlier) that the Authority concluded the information was not credible. The divergence between the two claims was stark and provided a clear basis for the Authority to determine that the latter claim was not credible in the sense contemplated by s 473DD of the Act. It is clear from the Authority's reasoning in the Decision that the Authority engaged in the requisite anterior stage assessment of the credibility of the new information. It found the new information was not capable of being believed.
5. There was no error in the primary judge rejecting the appellant's contention of illogical reasoning by the Authority, as the reasoning in the Decision makes plain the Authority did not determine that the baptism certificate and the letter from Pastor Keith Piper were incapable of proving that the appellant was baptised, or would be perceived as a Christian. The Authority found at [8] of the Decision, that the new information did not support a claim that he had converted to Christianity. That is, genuinely converted. That was the claim that was advanced by the appellant before the Authority.
6. I detect no error in the approach and the reasoning of the Authority in its Decision and no error on the part of the primary judge for rejecting the appellant's claim.

1. The appellant submits that the Authority also fell into jurisdictional error by failing to consider, in the context of its assessment of s 473DD of the Act, one of the matters expressly advanced by the appellant to explain the timing of the provision of the new information, being that he did not raise the claim earlier because he did not want to be seen as trying to strengthen his claim.
2. The primary judge addressed this at PJ [82], stating that it was "unsurprising" that the Authority found no exceptional circumstances to justify receipt of the information, and considered this explanation to be incapable of satisfying the First Limb of s 473DD. The appellant submits that this reasoning of the primary judge does not provide a satisfactory answer to the appellant's contention. The appellant submits that the authorities establish that the proper starting point is the test posed by subsection (b), whether the new information is credible personal information as per the Second Limb of s 473DD. The appellant submits that neither the Authority nor the primary judge gave any consideration to the Second Limb of s 473DD. As a consequence, the Authority cannot lawfully have considered the First Limb of s 473DD without having first addressed the Second Limb. The appellant submits that the primary judge concluding at PJ [82] that it was "unsurprising" that the Authority found no exceptional circumstances to justify receipt of the new information does not, in the appellant's submission, deal with the real issue which was the Authority and the primary judge's failure to consider the Second Limb of s 473DD first, and then to consider the First Limb of s 473DD: BFV18 at [55].
3. The primary judge was correct to reject the appellant's argument in respect of Particular (c). The primary judge, at PJ [82], accepted the Minister's submission, which was that the explanation claim was not raised earlier because the appellant did not want it to be inferred as an attempt to strengthen his protection claim, and this was not an explanation as to why the new information could not have been earlier provided; rather, it was an explanation for why the applicant chose not to disclose his conversion claim earlier. The primary judge accepted that the explanation was, in its terms, incapable of satisfying the Authority under s 473DD of the Act. The Authority did not fail to engage with s 473DD in relation to the new information by not expressly engaging with an explanation that was not an explanation as to why the new information could not have been provided earlier.
4. The first ground of appeal does not identify any error by the primary judge.

1. The second appeal ground asserts error by the primary judge in failing to find jurisdictional error in the Decision by reason of the Authority unreasonably failing to exercise its statutory power under s 473DC of the Act to invite the appellant to give new information, in circumstances where the Authority departed from two positive findings made by the Delegate in favour of the appellant.
2. There is a condition of reasonableness implied into the procedural duty of the Authority to review the referred decision by considering the review material, and implied as well into the procedural powers of the Authority: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [19] (Kiefel CJ, Bell, Gageler and Keane JJ). This implied condition of reasonableness can be breached in circumstances where the Authority departs from findings made by the Delegate or decides the review based on issues not dispositive before the Delegate without exercising, or considering the exercise of, its power under s 473DC of the Act to invite the appellant to a hearing or otherwise obtain new information about the matters of specific concern to the Authority: ABT17 at [29] (Kiefel CJ, Bell, Gageler and Keane JJ).
3. The appellant submits that the Delegate accepted that the appellant's father had forced the appellant out of the family home, and that the appellant had been expelled from university in 2010 due to comments he made about the role of Islam in Iran. The Authority, however, rejected both of these findings decided by the Delegate in the appellant's favour based on matters it perceived to be inconsistencies. Notably, the perceived inconsistencies were not raised by the Delegate with the appellant, hence the appellant's response to the perceived inconsistencies was not available to the Authority. In these circumstances, there was an "informational gap" before the Authority and, accordingly, it was legally unreasonable for the Authority to depart from the Delegate's findings on the basis of the perceived inconsistencies without exercising its power under s 473DC to obtain further information.
4. The primary judge's reasons for rejecting the appellant's contention on the "informational gap" before the Authority appear at PJ [83]-[87]. The appellant submits that the primary judge's reasonings conflate first, whether the conclusion reached by the Authority was open on the evidence, being legal reasonableness of the outcome, and secondly, whether it was legally unreasonable for the Authority to make its decision without the Authority exercising its power under s 473DC of the Act to obtain the appellant's response to the perceived inconsistencies, being legal unreasonableness in the procedure. The appellant submits that the primary judge focuses on the first matter, which was not in contention, and was non-responsive to the second matter, which was in issue.
5. There was no "informational gap" before the Authority as described by the High Court in ABT17 (Kiefel CJ, Bell, Gageler and Keane JJ) at [6]-[21]. Such an "informational gap" occurs when the information that was before the Minister or delegate which might include, as was the case in ABT17, the delegate's observations of the way in which the applicant presented their claims in an interview which does not match the information before the Authority which, in such a case, lacks the delegate's observations of the applicant. In the present case, there was no such "informational gap" that meant the Authority proceeded unreasonably in failing to take steps to, as it were, fill the gap. The Authority's findings about the two impugned claims were made on the basis of the same information which the Delegate possessed. It was open to the Authority performing a de novo review under (the former) part 7AA of the Act to make different findings of fact without inviting further information from the appellant. This point has been repeatedly accepted in the Federal Court and in the High Court: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12, (Reeves, Robertson and Rangiah JJ), at [72]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 (Gageler, Keane and Nettle JJ) at [17]. The primary judge was correct to reject, at PJ [83]-[87], the appellant's contentions that there was an "informational gap" before the Authority. It follows that appeal ground 2 must be rejected.

1. The appellant, by the third appeal ground, contends that the primary judge erred by not finding that the Authority had failed to consider claims before it or by making a finding in the absence of evidence. The appellant relies upon Particulars (a), (b) and (c) for this ground of appeal.

1. The appellant submits that the Authority found that the appellant had been born a Shia, had abandoned Islam and had become an atheist after arrival in Australia. It accepted that abandonment of Islam was apostacy, which was formally punishable by death, and it found at least one recent example of a death sentence for apostasy. The Authority dealt with the issue by stating that the appellant had not and would not publicly declare that he had abandoned Islam, not because of fear, but because he had no such desire, however, it also found that the appellant "if asked, would not seek to hide his religious views": Decision [19].
2. The appellant submits that in view of these findings a claim or component integer that the Authority ought to have considered was whether the appellant might attract persecution by virtue of his religious views / atheism becoming known upon his return in the reasonably foreseeable future, irrespective of him not making public declarations or denunciations of Islam.
3. The appellant submits that it is implicit in the Authority's findings that a death sentence was a possible consequence of abandoning Islam, which it had accepted that the appellant had done. Accordingly, in the appellant's submission, the Authority's conclusion that the appellant would not attract harm rested upon the proposition that the appellant's abandonment of Islam would not come to the attention of the relevant authorities. The Authority found that the appellant would not make public declarations of his abandonment of Islam. However, the Authority also found that the appellant would not seek to hide his religious views if asked. This raised the prospect of the appellant facing persecution by virtue of his abandonment of Islam and views becoming known through means other than by public declaration such as by private expressions becoming known.
4. I do not accept the appellant's submission under Particular (a). The primary judge correctly found this argument to have no merit. The appellant submits that the Authority, having accepted that the appellant, if asked, would not hide his religious views, was then required to consider whether the appellant might attract persecution for this reason. However, that was precisely what the Authority considered at [19] of the Decision. The Authority took into account, in assessing the risk to the appellant, that he would not hide his religious views, namely that he was an atheist, if asked. There is no error in the Authority's reasoning and no error by the primary judge.

1. The appellant submits that the Authority did not deal with an express component integer of the appellant's claim that his risk was heightened by virtue of his father's religious position. The Authority accepted that the appellant's father was involved in the management of the local mosque but made no finding as to whether this heightened his risk profile: Decision at [18]. The appellant also submits that the way the Authority dealt with the claims pertaining to the appellant's cessation of religious attendance and this abandonment of Islam at Decision [24]-[25], treated the appellant as an undifferentiated person who ceased practicing Islam without reference to his claim of having a higher risk profile.
2. The primary judge was correct to reject the appellant's contention under Particular (b) that the Authority did not deal with the heightened risk to the appellant by virtue of his father's "religious position". The Authority expressly noted the applicant's father's "religious position" and took it into account by observing that the applicant had not in the past encountered harm: Decision at [18]. That observation provided a proper basis upon which the Authority was able to reason that such harm in the future was not well founded.
3. The Authority did not just consider that the appellant had become an atheist after his arrival in Australia: Decision at [19]. The Authority also considered and accepted that the appellant, prior to leaving Iran, had already stopped attending daily prayers, and had "abandoned Islam". There is no error in the primary judge's reasoning and rejecting the appellant's submissions under Particular (b).

1. The appellant submits that the Authority's reasoning implicitly drew a dichotomy between apostates who made public declarations or public denunciations of Islam, and those that did not. The appellant submits that the Authority appears to accept that the first category faced a degree of risk, whereas the latter category did not face such a risk. The appellant submits that the Authority did not identify the basis on which it drew this dichotomy.
2. There was no error in the Authority's consideration of apostates who made public declarations or denunciations of Islam and those that did not. The Authority cited country information that indicated that it was unlikely that individuals would be persecuted on charges of apostasy but noted one recent instance of a man who had made public statements critical of Iran on social media: Decision at [25]. The Authority did not make any unwarranted dichotomy between different types or classes of apostates but made findings about the level of risk the appellant would face by reference to his claims and the available country information. There was no error in this approach by the Authority.
3. There was no error in the approach of the primary judge.

1. The appellant abandoned its reliance on Particular (d) of this ground of appeal.

1. The appeal must be dismissed. The appellant will pay the first respondent's costs of the appeal.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.