Federal Court of Australia

DYA16 v Minister for Immigration and Citizenship [2025] FCA 864

ORDERS

THE COURT ORDERS THAT:

1.    The name of the First Respondent be amended to Minister for Immigration and Citizenship.

2.    Appeal allowed.

3.    Set aside the orders of the Federal Circuit Court made on 8 November 2018, and in lieu thereof order:

(a)    A writ of certiorari issue to quash the decision of the second respondent made on 11 November 2016.

(b)    A writ of mandamus issue directed to the Administrative Review Tribunal that it determine the applicant’s application for review of the decision of the delegate of the first respondent dated 4 August 2016 according to law.

(c)    The first respondent pay the applicant’s costs.

4.    Subject to Order 5, the first respondent pay the appellant’s costs of the appeal to this Court.

5.    The appellant pay the first respondent’s costs of the appearance in this Court on 11 February 2025.

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

REASONS FOR JUDGMENT

OWENS J

1    On 8 November 2018 the Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority dated 11 November 2016: DYA16 v Minister for Immigration [2018] FCCA 2679. The appellant was entitled, pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), to bring an appeal from that decision to this Court, so long as he did so (at that time) within 21 days (Rule 36.03 of the Federal Court Rules 2011 (Cth) prior to its amendment by the Federal Court Amendment (Court Administration and Other Measures) Rules 2019 (Cth), Sch 3, item 16, which came into effect on 2 May 2019). He did not do so.

2    On 1 December 2021 the appellant, without the benefit of legal representation, filed an application under Rule 36.05 seeking an extension of time within which to file a notice of appeal. Annexed to the affidavit filed in support of that application was a draft notice of appeal containing nine grounds, none of which were obviously arguable, to the extent they were comprehensible. The solicitors for the Minister later filed written submissions opposing any extension of time.

3    Ultimately, the matter was listed for hearing before me on 11 February 2025. At that point in time, the appellant remained unrepresented. Shortly in advance of that hearing the appellant filed written submissions which bore no apparent connection to his draft notice of appeal. The Minister’s counsel responded to those submissions in writing. In those submissions, the Minister maintained opposition to the grant of an extension of time if the only grounds of appeal sought to be those advanced were those articulated by the appellant. Counsel for the Minister did, however, identify one possible ground of appeal (not raised by the appellant) that was conceded to be arguable. The Minister’s position was stated to be that an extension of time would not be opposed if the appellant adopted the ground of appeal identified by the Minister (while remaining free to argue any other point he wished).

4    When the matter came on for hearing on 11 February 2025, the appellant was still unrepresented. It soon became apparent that the appellant had not grasped the Minister’s position. Although the Minister had very fairly adopted a position that was entirely to the benefit of the appellant, he seemed wary of agreeing to any course proposed by the Minister. I allowed the appellant a short adjournment to review the Minister’s written submissions with the assistance of the translator and with the benefit of the further explanation regarding what was proposed that had been given in Court.

5    When he returned to Court, the appellant said that he did not understand the argument the Minister said he could make, and asked for an adjournment. He was not willing to adopt the point identified by the Minister (even though he remained free to argue all of his own grounds in addition). He said that he had identified a barrister who would be able to represent him at a resumed hearing. Over the Minister’s opposition, I agreed to adjourn the matter until 28 March 2025.

6    In the interim, the appellant obtained legal representation. An amended draft notice of appeal was prepared for him, which contained two grounds (one of which was the ground identified by the Minister). Written submissions on behalf of the appellant were filed on 14 March 2025, which abandoned one of the two proposed grounds of appeal (leaving that originally identified by the Minister). The Minister then replied to those written submissions.

7    The result was that, when the hearing resumed on 28 March 2025, the sole ground in respect of which the appellant sought leave was as follows:

The primary judge erred in failing to find that the Second Respondent (IAA) erred in its consideration of the new information provided by the Applicant, pursuant to s 473DD of the Migration Act 1958 (Cth).

Particulars

a.    The Applicant provided a letter by Pastor Keith Piper which detailed the Applicant’s Christian beliefs and practices; and an article published by Asharq Al-Awsat, titled: “Khamenei Admits Corruption in Iran’s Judiciary Amid Political Bickering”. The IAA considered both documents to be new information pursuant to s 473DD of the Migration Act.

b.    The IAA in determining whether to consider the new information, failed to assess the new information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) first. Only after that assessment could the IAA then assess the new information against the criteria specified in s 473DD(a) of the Migration Act.

c.    The IAA’s error was material as it could not be concluded that the outcome would inevitably have been the same had the error not been made.

Extension of Time

8    The ground of appeal just identified was, in substance, the point that had been identified as arguable by counsel for the Minister in her written submissions dated 4 February 2025. It followed that the Minister did not oppose the appellant being granted an extension of time. In those circumstances, by consent, I granted the appellant an extension of time, and the matter proceeded as the hearing of his appeal.

The ISSUE ON APPEAL

9    Although the appeal raises only a confined issue, in order to understand it, it is necessary to provide a little context.

10    The appellant is a citizen of Iran, who arrived in Australia on 25 August 2012.

11    On 7 October 2015 the appellant lodged an application for a Temporary Protection (subclass 785) visa. That application included, amongst other documents, a statutory declaration by the appellant. That statutory declaration, dated 16 July 2013, included the following statements concerning the appellant’s religious beliefs and practices (at [4]-[6]):

I have never been a devout Muslim. In Iran, I was forced to describe myself as a Shi’a Muslim.

Since arriving in Australia, I have begun attending a Baptist Church. I hope to get baptised soon. My interest in Christianity is very personal to me. I do not want to use it to get asylum; that is not why I am interested in Christianity. I remember watching the movie “The Ten Commandments” when I was a child and being interested in it, but I did not explore Christianity until I travelled to Australia.

My Christian faith is not the reason I left Iran, and I cannot contemplate ever returning to that country, but my Migration Agent has advised that it is relevant to my protection claims.

12    On 23 March 2016, the appellant attended an interview with a delegate of the Minister. In that interview he was asked about his religious beliefs and practices. He reiterated that his religion was “an extremely personal thing” and he didn’t “believe it has to do anything with [his] claim”. He said that he did not want it suggested that he “did this to … improve [his] application”. When he was asked by the delegate what consequences he thought there would be for him in Iran if the authorities found out about his conversion, he said he thought he would be executed or killed.

13    In the course of the discussion that ensued, the appellant said, amongst other things:

(a)    He attended the Liberty Baptist Church every two weeks, on Saturdays, between 10:30am and 12:00pm.

(b)    When asked for the name of the priest, he said that “that person has a difficult name, but we use, we call him Father”. He went on to name the person who translated the services into Farsi.

(c)    He did not participate in any other activities at the church, because he did not have time on account of his work commitments.

(d)    He did not practice his faith other than by attending the church.

(e)    He had been baptised, and when you are baptised “your sins get cleared off, washed off”.

(f)    The teachings of Jesus included: “Forgiveness. No, not to be judgmental or not to judge people. Constantly to be giving.”

(g)    Bible stories of which he was aware included: “Jesus healing people. … [T]hey were in the desert and … they were in abandoned area and then the food came from the sky, that God dropped food from the sky and then they save them. … [T]he story of the dead person. He was in the temple or something and then the eyes were closed and people were thinking that person is dead. And eventually, He rose him from his death.”

(h)    He still “need[s] time to learn and know this religion more in depth and properly”.

(i)    Significant dates in the Christian calendar were “25th, which is Jesus’ birth. Either it’s 25th or 26th. I think it’s 25th. … Easter, which is … in the next couple of days”. When asked what people celebrated at Easter he said the “[e]xact reason, I don’t know”.

(j)    He had told his family, and also his friends in Australia, of his conversion.

14    The delegate refused the appellant’s application for a protection visa on 4 August 2016.

15    That decision was a “fast track reviewable decision”, and was referred by the Department to the Authority for review on 8 August 2016. The appellant’s migration agents provided written submissions, and accompanying documents, to the Authority on 5 September 2016. Those submissions, and accompanying documents, included information that it is common ground was “new information” within the meaning of s 473DD of the Migration Act 1958 (Cth).

16    That section (since repealed) provided as follows:

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.

17    There were two categories of new information, namely:

(a)    Information about the appellant’s practice of his religion. The written submissions included information about the frequency and nature of the appellant’s attendance at his church, as well as an explanation for why that information had not been provided to the delegate. The appellant also provided a letter from the Pastor of his church which provided information about the appellant’s religious beliefs and practices.

(b)    An article by Asharq Al-Awsat, titled: “Khamenei Admits Corruption in Iran’s Judiciary Amid Political Bickering”.

18    The Authority did not take either category of new information into account.

19    In relation to the explanation for why new information about the appellant’s religion had not previously been provided, the Authority said (at [4]):

In the submission it is submitted that the applicant comes from a traumatic background and is extremely distressed and has visited psychologists many times and finds his past difficult to speak about. Having listened to the TPV interview, it is clear that the applicant was able to respond to all questions put to him by the delegate with ease. He was able to converse with the delegate in both Farsi (with the assistance of an interpreter) and English with no apparent issues. No medical evidence has been provided in respect to the applicant’s capacity and I do not consider his ability to present his case was compromised in the manner claimed.

20    In relation to the new information about the appellant’s practice of his religion itself, the critical aspect of the Authority’s reasoning was as follows (at [5]):

In respect to aspects of the submission referring to the applicant’s religion, this information differs to the information which the applicant presented to the delegate, such as when and how often he attends church. I consider it to be new information. The applicant has also provided a letter, written by Pastor Keith Piper which outlines the applicant’s religious beliefs and practices. The contents of this letter are inconsistent with the applicant’s account during the TPV interview. This letter was not before the delegate and I also consider this to be new information. During the TPV interview the applicant stated that he did not wish to raise his religious beliefs as a claim for protection as it was not the reason he left Iran and did not want it to be part of the consideration of his claims. The delegate nonetheless explored his faith and provided him the opportunity to explain what it meant to him to be Christian, how he practices and how it had affected his life. The applicant was also advised that the TPV interview would likely be the last opportunity for him to raise his claims for protection so he should explain as much as he can in respect to his religion. The applicant stated he had nothing further to say and did not want his religious beliefs to be part of his claims for protection as it was personal to him. I am satisfied that he had sufficient opportunity to present information to the delegate and I am not satisfied there are exceptional circumstances to justify the consideration of this new information.

21    It may be observed that the Authority only addressed expressly the criterion in s 473DD(a). The Minister submitted, and I accept, that the Authority also implicitly addressed the criterion in s 473DD(b)(i). The Authority did not, however, address in any way the criterion in s 473DD(b)(ii).

22    In relation to the new information comprised in the article concerning judicial corruption, the Authority said, relevantly (at [8]):

For reasons discussed later in this assessment I have found it not credible that the applicant was subject to corruption during the judicial proceedings of his divorce and I am not satisfied there are exceptional circumstances to justify its consideration.

23    Once again, the Authority only addressed expressly the criterion in s 473DD(a). In this instance, however, the Authority could not be regarded as having implicitly considered either of the criteria in s 473DD(b).

24    The critical findings of the Authority concerning the appellant’s religious beliefs and practices are found at [24]-[26] of the decision:

The applicant was asked what impact his conversation (sic) to Christianity would have upon his return to Iran. He stated it is personal and he had not told anyone about it. Later in the same interview he stated that he had told his family and some friends in Australia. He further stated that if the authorities found out he would be problematic, he may be executed, but maintained that his beliefs were personal.

The applicant was questioned about the tenants (sic) of Christianity. He stated that baptism is a manner in which you wash away your sins, that the 25 or 26 (no month was mentioned) was an important day for Christians as it was Jesus’ birthday and Easter is significant the same way Eid is significant to Muslims but he did not know the significance of Easter. He claimed to have attended church for over two years and was baptised in 2014 at Liberty Baptised (sic) Church, North Rocks. He currently attends church every two weeks and could not identify the name of the Pastor as he had a difficult name. As per the applicant’s baptism certificate, the Pastor is Keith Piper. He has never attended any other church services and does not participate in any other Christian activities.

I accept the applicant was baptised at the Liberty Baptised (sic) Church in North Rocks as evidenced by his baptism certificate, however based on the applicant’s vague and unconvincing responses in respect to Christian beliefs during the TPV interview I am not satisfied that the applicant has any ongoing interest in Christianity.

25    As has already been mentioned, the Authority affirmed the Ministerial delegate’s decision not to grant the appellant a protection visa on 11 November 2016, and the appellant’s application for judicial review of that decision was dismissed on 8 November 2018.

26    There is only one aspect of the primary judge’s reasons that is relevant for present purposes. In the course of dealing with the Authority’s decision not to have regard to the new information mentioned above, his Honour said this (at [33]):

Further, it is now well-established that, because the requirements of s.473DD are cumulative, the Authority was not required to consider the issues raised by s.473DD(b) and so did not fall into error by failing to do so.

27    Subsequent to the decision of the primary judge, however, the High Court, in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37, said (at [11], per Kiefel CJ, Gageler, Keane and Gordon JJ):

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

28    In those circumstances, the Minister on this appeal conceded that the primary judge had erred in the passage quoted above. That is because:

(a)    in relation to the new information about the appellant’s religion, the Authority did not consider the criterion specified in s 473DD(b)(ii); and

(b)    in relation to the new information contained in the article about judicial corruption, the Authority did not consider either of the criteria specified in s 473DD(b).

29    It was common ground, therefore, that the primary judge had erred in failing to find that the Authority had proceeded inconsistently with the requirements of s 473DD, and thus made an error of law in the way it had approached the question whether it should have regard to the appellant’s new information. The sole issue of controversy on the appeal was thus whether that error was material.

Materiality

Framing the issue by reference to the applicable principles

30    To assess the materiality of the Authority’s error, it is first necessary to identify with precision the error itself. The arguments of the parties focussed on the failure of the Authority to consider the criterion set out in s 473DD(b)(ii), and, in particular, to consider whether the new information was “credible”.

31    The meaning of that term was explained in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75], per Mortimer and Jackson JJ:

As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.

32    As to whether the error was material, the relevant test was articulated in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ:

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).

33    There is a question as to the correct identification of the “outcome” in relation to which materiality is to be assessed in the context of a failure to comply with s 473DD:

(a)    On one view, which finds expression in the decision in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 (Colvin J), the question is whether the absence of error could realistically have resulted in the Authority deciding that the new information could be considered (see especially at [52]).

(b)    The contrary view, which has been adopted in cases including those collected in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [80] (Banks-Smith and Jackson JJ), is that the error must be shown to have been material to the Authority’s ultimate decision. Such an approach thus requires the demonstration of a realistic possibility that Authority might have determined that the new information could be considered and that, had it done so, the application as a whole might have been decided differently.

34    That question remains unresolved (see, e.g., BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 at [36] (Stewart J); ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724 at [19] (Burley J)), and it is not necessary that I resolve it in this case. That is because:

(a)    In relation to the new information concerning the appellant’s religious beliefs and practices, the Minister accepts that, if that information ought to have been considered by the Authority, then the possibility of a different ultimate outcome could not realistically be excluded.

(b)    In relation to the new information concerning judicial corruption, the appellant did not make any submission in support of the materiality of that information. The Minister’s written submissions of 4 February 2025 convincingly set out why the error in relation to this category of information could not have been material to the outcome of either the decision not to consider the information, or the ultimate outcome (at [23]-[24], [26]). The appellant made no submission in response. In short, the article pre-dated the delegate’s decision, and there was no evidence it could not have been provided to the delegate. It thus could not have satisfied s 473DD(b)(i). Furthermore, the article was not “personal information”, being information about the general topic of corruption in the judiciary. The criterion in s 473DD(b)(ii) thus could not have been satisfied. Finally, it can be affirmatively concluded that the article could not have altered the ultimate outcome of the Authority’s decision, because the appellant’s case relied upon his own particular and individual circumstances as giving rise to his fear of persecution, rather than the general propensity for corruption in the judiciary to which the article speaks. To the extent, therefore, that the appellant maintained reliance on this information, I would reject that part of his case.

35    The issue on this appeal thus reduces to whether the new information concerning the appellant’s religious beliefs and practices was capable of being believed.

Analysis

36    On its face, and considered in isolation, the letter from the appellant’s Pastor would plainly be capable of being believed. As the appellant submitted, the letter had many features suggesting it was both genuine and truthful. It was written on the letterhead of the Liberty Baptist Church, supplied detailed contact information, and invited follow-up. This was said to support the inference that it was a genuine document, written on behalf of the church to which the appellant claimed to belong, and about which the church was willing to be contacted to substantiate what was written. Furthermore, it was addressed to the Department of Immigration and Border Protection, indicating that it was written for a serious purpose in respect of which honesty and accuracy were demanded. The letter was written (and signed) by the Pastor himself, who was a leader of the church. The letter was a detailed account, based on the Pastor’s own observations, information conveyed to him by other members of the church, and his examination of the church records.

37    The new information contained in the submissions filed on behalf of the appellant was again, if it was considered in isolation, plainly capable of being believed. There was nothing inherently incredible or implausible about what was said; the substance of the submission was supported by reference to the instructions of the appellant (who was in a position to know the matters asserted within them) and the Pastor’s letter.

38    I did not understand the Minister to dispute any of that. Rather, the fundamental premise of the Minister’s submissions was that the credibility of the new information could not be considered in isolation. The Minister submitted that the new information was (and was found to be by the Authority) inconsistent with the evidence that the appellant had given about his religion in his interview with the delegate.

39    In relation to the new information contained in the submissions, insofar as it was sourced to the instructions of the appellant, the Minister thus submitted that unless “there was a credible explanation given to the Authority for the fundamental change in the appellant’s evidence”, the new information was not capable of being accepted. The Minister submitted that there was no such explanation, because the only one that had been offered (that the appellant’s evidence to the delegate had been affected by reason of trauma and distress) was rejected by the Authority. It followed, so the submission went, that the Authority would inevitably have found the new information to lack credibility, with the result that the failure to consider the criterion in s 473DD(b)(ii) could not have made any difference to the decision not to have regard to the new information.

40    Insofar as the new information contained in the Pastor’s letter (and by extension, to so much of the submissions as was sourced to the Pastor’s letter) was concerned, the Minister said that it may be accepted that the letter was capable of being believed insofar as it disclosed the Pastor’s subjective state of mind concerning the applicant’s religious beliefs and practices, and his belief as to the content of church records. The Minister submitted that the only information contained in the letter about which the Pastor gave direct evidence was his necessarily subjective opinion about the genuineness of the appellant’s faith. The information about the nature and frequency of the appellant’s attendances at church and other objective facts were said to be nothing more than a report of the Pastor’s review of church records. The Minister thus submitted that acceptance that the Pastor was telling the truth in his letter could not, in itself, assist the appellant. Rather, it was submitted, the appellant needed to demonstrate that the Pastor’s letter was capable of being believed as to the truth of those matters. Because, it was said, the only evidence before the Authority capable of demonstrating the underlying truth of the matters asserted in the Pastor’s letter was the evidence of the appellant himself, the letter necessarily lacked credibility for the same reason that the appellant’s evidence lacked credibility.

41    The Minister is correct that the credibility of new information does not fall to be assessed solely by reference to the information itself, and that it would have been permissible for the Authority to have regard to other information before it in making that assessment: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [2] (Besanko J), at [72] (Mortimer and Jackson JJ). Nevertheless, it is important to bear in mind, as Mortimer and Jackson JJ went on to say (at [73]), that:

… there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.

42    Similarly, as Bromberg J said in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]:

It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

43    The appellant’s response to the Minister’s submission was to deny that the new information was inconsistent (or, in the alternative, that it was inconsistent in all respects). He further submitted that, to the extent the new information was inconsistent, it remained capable of being believed.

Was the new information inconsistent?

44    I have set out the critical aspects of the appellant’s evidence to the delegate above.

45    In the Pastor’s letter, the Pastor said that he had known the appellant since 14 July 2013, and gave an account of how the appellant came to be introduced to the church, as well as the fundamental doctrine with which he had been instructed. He then went on to say (original emphasis):

My records show that [the appellant] has attended our church regularly on Sundays since then.

[The appellant] was baptized by immersion in our church on Sunday 4th August 2013.

[The appellant] is enrolled in our Basic Bible Certificate which he attends Sunday afternoons from 1-4pm.

[The appellant] attends our Thursday evening Bible studies from 7.30-9pm.

He has introduced 2 people to our church who have also received Jesus Christ as their Saviour.

[The appellant] has watched some Christian DVD movies, including the gospel of Luke.

[The appellant] has a special interest in learning about Jesus and following Him as his role model.

[The appellant] has told his parents that he is a Christian. They consider this his choice.

[The appellant] helps to clean up after Bible study.

He tells me that he has a special interest in helping people with an Islamic background leave Islam and become Christians. [The appellant] tells me that all his friends in Sydney are Christians and that he does not have any Muslim friends.

[The appellant] is a Christian, and he is still learning a lot of Bible truths that he was not able to discover in Iran. [The appellant] truly loves the Bible and Jesus Christ, and has made many friends in our church. He informs me that he considers his Christian friends to be his spiritual brothers.

[The appellant] is adjusting well to living and socialising in Australia.

[The appellant] really enjoys studying the Bible in our church. He is truly committed to living as a Christian and to seriously following Jesus Christ.

46    The letter continued with the Pastor “test[ing] the genuineness of [the appellant’s] salvation” by reference to various matters, including that the appellant “has faithfully and regularly attended our church since the date of his salvation”, that “he reads his Bible most days”, that he “seems to have a good grasp of [church] doctrines as you would expect a Christian to have”, and that he “attends our Bible studies”.

47    This summary of the terms of the letter is sufficient to indicate why I do not accept the Minister’s submission that it can only be read as a summary of church records, coupled with expressions of personal opinion, based on those records, about the quality of the appellant’s faith. The letter does not unambiguously record that the source of the Pastor’s knowledge of all objective facts is limited to what his “records show”. In terms, it is only the statement that the appellant had “attended our church regularly on Sundays” that is expressly linked to church records (although references, for example, to the specific date of the appellant’s baptism, and the fact that the appellant is “enrolled” in a particular certificate, do rather suggest that the Pastor was likely referring more broadly to information derived from church records). But even assuming the Pastor to be asserting that the church records disclose each of the objective matters to which reference is made, it is not obvious that the Pastor is thereby disclaiming any personal knowledge of the facts recited. It is at least an available reading of the letter that the Pastor is referring to matters that he has observed, and which are also reflected in the church records. Similarly, to the extent that the letter contains expressions of opinion about the appellant’s faith, they would appear to be opinions based, at least in part, on the Pastor’s own observations of and dealings with the appellant. In short, I do not think that it can be said that acceptance of the truthfulness of the contents of the Pastor’s letter could only have been held by the Authority to assist the appellant if the factual matters underpinning it were established independently of the Pastor himself (and by reference to the evidence of the appellant).

48    The terms of the submission were broadly, but not entirely, congruent with the letter. Relevantly, the submissions said:

We have attached a letter from the Pastor of the Liberty Baptist Church in North Rocks where the applicant has been attending church services since 2013. Keith E. Piper, in his letter dated 21 August 2016, confirms that the applicant has been attending the Sunday services and the Bible studies sessions since July 2013. He knows the applicant very well and attests to his faith in Christianity. The delegate believes that he is not a genuine Christian as he makes obvious mistakes in remembering when the church weekly service is held. I have known Keith Piper for many years and I have no doubt that he would have never written this letter if the applicant hadn’t attended his church.

At the time of the interview the applicant was under so much stress and he claims: “my mind switched off” and “I could not remember or say a thing about Christianity”. I believe that this may have happened because he was questioned in details about his life in Iran first and this must have reminded him of his traumatic past. The fact is the applicant goes to church 3 times a week, on Tuesdays, and Thursdays, to study the Bible, and on Sundays to attend the Sunday service. He also attends the church on Sunday afternoons to attend the Bible study sessions.

49    It will be recalled that the Authority (at [5]) held that the new information was “inconsistent with the [appellant’s] account during the TPV interview”, without specifying what the relevant inconsistencies were (other than in relation to “when and how often he attends church”). In submissions, the Minister similarly identified the relevant inconsistency as relating to the appellant’s attendance at church. In particular, the Minister submitted that:

(a)    Before the delegate, the appellant said that he only attended church once a fortnight on Saturdays, and had no time for additional attendances.

(b)    In the new information, it was said that the appellant attended church weekly for the Sunday service, as well as on Tuesday and Thursday evenings and Sunday afternoons for bible studies.

50    In relation to that specific inconsistency for which the Minister contended, the appellant submitted that it was important to appreciate that the appellant’s evidence to the delegate was given five months before the Pastor’s letter, and the new submissions, were written. It was submitted that the new information was directed to the appellant’s present attendance at church and thus, because it was speaking to a different time-period, it need not be regarded as inconsistent with his prior evidence. More generally, however, the appellant submitted that there was much more to the new information than information about the day upon, and the frequency with which, he attends church and that, on the whole, the new information was in fact consistent with, and otherwise supported, the appellant’s earlier evidence.

51    It must be accepted that in at least one respect, the Pastor’s letter and the appellant’s evidence to the delegate were inconsistent. When the Pastor said that the appellant had “attended our church regularly on Sundays” since his first introduction to the church, he was plainly speaking of the entire period in which he had known the appellant, and not just some shorter period following the appellant’s interview with the delegate.

52    More than that, however, especially when read with the appellant’s submissions to the Authority, it is clear that the appellant was not seeking to advance a case before the Authority that the nature and frequency of his attendances at church had changed in the five-month period since his interview with the delegate. Those submissions relied on the Pastor’s letter as “confirm[ing] that the applicant has been attending Sunday services and the Bible studies sessions since July 2013”, and sought to explain, by reference to the stress and trauma suffered by the appellant, why the new information had not been disclosed to the delegate.

53    It follows that I accept the Minister’s submission in relation to the existence of an inconsistency between the appellant’s evidence to the delegate, and the new information. It is also true, however, as the appellant submitted, that that does not mean that the new information as a whole should be characterised as inconsistent (or that it necessarily lacked credibility to the extent it was).

54    The question whether information or evidence is inconsistent, the extent to which it is inconsistent, and the consequences for decision-making or fact-finding as a result, will usually call for careful analysis (see, e.g., the observations of the Full Court in ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38 at [42]-[44] (Griffiths, Mortimer and Steward JJ)).

55    Here, the new information might be divided into three broad (and, to a degree, permeable) categories:

(a)    First, there was information that was directly inconsistent with the appellant’s evidence to the delegate. I have described this information above. (It includes, for example, the information that the appellant attended church weekly (as opposed to fortnightly) on Sundays (as opposed to Saturdays), and that he also attended on other occasions during the week (as opposed to only attending the weekly service, and having no time for other attendances). Even in relation to such direct inconsistencies, some care would be required in identifying the precise content and significance of the inconsistency. For example, differences in the characterisation of the frequency of church attendances might reflect differences in recollection, or differences in the extent to which lapses in attendance are regarded as forgivable deviations from an aspirational norm, or they might reflect dishonesty (to identify but three possibilities). The significance of these inconsistencies is yet another matter. If they were taken to indicate dishonesty (for example, as indicators of fabricated stories invented for the purpose of demonstrating an interest in Christianity that was not genuine), then their significance would be obvious (and adverse to the appellant’s case). If the accounts were both accepted as honest, if not reliable in all respects, a different conclusion might be reached. For example, the accounts may be regarded as fundamentally consistent to the extent that they are both directed to conveying the appellant’s regular attendance at church (even though they are inconsistent in relation to the precise day and frequency of those attendances). If that view were taken, then the inconsistencies may be regarded as being of less significance than the consistencies. Much will depend on the precise manner in which the decision-maker reasons. The examples can, of course, be multiplied. The purpose of describing the complexity of the fact-finding process is simply to emphasise that identification of an inconsistency is the beginning, and not the end, of the process by which the force of particular evidence, and the evidence as a whole, is assessed.

(b)    Secondly, there was information that was consistent with the appellant’s evidence to the delegate. In this category may be placed such information as the fact he had been baptised, and that he had told his parents and friends in Australia that he is a Christian. There is also a degree of overlap with information in the first category, to the extent that a specific inconsistency is capable of being reconciled as part of a broader consistent narrative (for example, the new information that the appellant had regularly attended church for over two years). The statement in the Pastor’s letter that the appellant was “still learning a lot of Bible truths” is also consistent with the appellant’s statement to the delegate that he was “learning and still, I need time to learn and know this religion more in depth and properly”. Other examples could be supplied.

(c)    Thirdly, there was information that differed in some way from the appellant’s evidence to the delegate, or from which a different conclusion might be drawn, but which may not (depending on the way that a decision-maker reasons) necessarily rise to the level of an “inconsistency”. In this category may be placed, for example, the Pastor’s statement that the appellant “seems to have a good grasp of [church] doctrines as you would expect a Christian to have”. That statement is in tension with, but not necessarily inconsistent with, the delegate’s assessment that the appellant gave “vague and unconvincing responses in respect to Christian beliefs” (and thus the evidence that underlay that assessment). The two conclusions are capable of being reconciled on a range of different bases, including, for example, different standards of knowledge expected of Christians, or on the basis that the appellant’s answers to the delegate’s questions did not demonstrate the true extent of his command of Christian doctrine. Equally, of course, the differences may be regarded as evidence of dishonesty (or indeed, any number of other possible explanations).

56    It follows that, while I have accepted that some parts of the new information were inconsistent with the appellant’s evidence to the delegate, that label cannot be applied to the entirety of the new information. Perhaps more importantly, even to the extent that the new information was inconsistent, the significance of that fact in terms of the assessment of the credibility of the new information was neither singular nor preordained.

Was the new information capable of being believed?

57    I do not consider that it can be affirmatively concluded that the Authority would inevitably have determined that the second and third categories of new information just described were not capable of being believed. The only basis upon which the Minister submitted that the new information was not credible was that it was inconsistent with the appellant’s earlier evidence (and that the only explanation proffered had been disbelieved). It follows that, insofar as the new information was not directly inconsistent with the appellant’s evidence to the delegate, then there is (at least) a realistic possibility that the Authority would not have found it to lack credibility by reason of the rejection of the appellant’s explanation for inconsistencies. That is to say, there is at least a realistic possibility that the Authority would have found that the new information was capable of being believed even if it also found that the appellant’s capacity to answer the delegate’s questions was not affected by trauma and distress.

58    Insofar as the first category is concerned (i.e., information that was directly inconsistent), it does not seem to me to be possible to dispose of the question of credibility on the basis that the Authority had disbelieved the appellant’s explanation for the inconsistency. That is for three reasons.

59    First, the question whether the explanation for the inconsistency was accepted was itself capable of being affected by the new information. That is to say, the probability that the appellant’s evidence to the delegate was affected by trauma and distress could rationally be affected by independent evidence concerning the matters in question. For example, if contemporaneous records of the church reviewed by the Pastor, or the Pastor’s own observations, disclosed additional, or more frequent, attendances at church than the appellant had described in his evidence to the delegate, that could be evidence that bolstered the credibility of the appellant’s explanation for inconsistency. In those circumstances, there is a realistic possibility that the Authority would have determined that the new information was capable of being believed, with the question of whether it was in fact believed needing to await a holistic assessment of the evidence at the deliberative stage. Put differently, I do not consider that it can be said that the Authority would inevitably have determined that the explanation proffered by the appellant to explain any inconsistencies was so devoid of merit that the new information was incapable of being believed.

60    Secondly, as I have explained above, the mere fact of inconsistency with the appellant’s earlier evidence does not necessarily compel the conclusion that the new information would have been disbelieved. The ultimate characterisation and significance of any inconsistencies would depend on the precise way in which the Authority approached its fact-finding task. As I have endeavoured to explain, there are a range of different ways in which the conflicting information might be analysed, reconciled, or otherwise brought to account in an overall assessment of the evidence. In those circumstances, I do not think it is possible to conclude that the Authority would inevitably have determined that the new information lacked credibility.

61    Third, to the extent that the Pastor’s letter recounts his own observations of objective facts it could not be said to lack credibility by reason of the rejection of the appellant’s explanation for the inconsistency in his own evidence: see, e.g., BFD17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 887 at [61]-[62] (Burley J); BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [49] (Perram, Perry and O’Callaghan JJ). In other words, the credibility of the information derived from the Pastor would not obviously, let alone inevitably, be undermined by inconsistencies in the account given by the appellant. No independent basis was advanced in submissions for why the Pastor’s evidence would lack credibility.

62    Overall, for all those reasons, it follows that I do not consider that it can be affirmatively concluded that the Authority would inevitably have determined that the new information lacked credibility at the anterior stage of the analysis called for by s 473DD(b)(ii). There is a realistic possibility that the Authority would have found the new information, even where it was directly inconsistent, was capable of being believed.

63    The appellant raised additional arguments in favour of the credibility of the new information, but in light of my conclusions above, I have not found it to be necessary to determine those arguments.

Conclusion

64    For the foregoing reasons, I consider that the Authority’s error in failing to address the criterion in s 473DD(b)(ii) was material, and thus amounted to an error in jurisdiction.

Costs of Adjournment

65    When I granted the appellant’s application for an adjournment on 11 February 2025, the Minister sought an order for his costs thrown away. While allowance might be made for a certain level of suspicion on the part of the appellant towards the Minister, ultimately it is the fact that (a) the Minister came to Court on 11 February 2025 having appropriately and fairly identified in advance and in writing an argument in the appellant’s favour, (b) the terms upon which the Minister consented to an extension of time did not require the appellant to abandon any of his own arguments, (c) the beneficial nature of what was proposed was explained to the appellant in Court on 11 February 2025, and (d) the appellant was given an opportunity to reflect on matters with the benefit of a translator during an adjournment. Provided the appellant adopted the ground of appeal identified as arguable by the Minister, the matter could (and should) have proceeded on 11 February 2025, with no disadvantage to the appellant. I did not consider it to be fair to refuse the appellant’s request for an adjournment, in circumstances where that would mean he would be deprived of the arguable ground of appeal identified by the Minister. In the result, therefore, the Minister was unreasonably put to unnecessary expense. In those circumstances, I think it is appropriate that the Minister receive the costs of his appearance in Court on 11 February 2025. I intend that costs order to be limited to the professional costs incurred in attending Court on that day, and do not intend that it extend to the costs of preparation, drafting submissions or the like (whether in respect of the appearance on 11 February 2025 or 28 March 2025).

Associate:

Dated:    30 July 2025