Federal Court of Australia

DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1556

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the primary judge on 26 September 2024 be set aside and in lieu thereof it be ordered that –

(a)    A writ of certiorari be issued quashing the decision of the Immigration Assessment Authority.

(b)    The matter be remitted to the Administrative Review Tribunal to determine the review according to law.

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

3.    The first respondent pay the appellant’s costs of the appeal to this Court.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    This is an appeal from orders of the Federal Circuit and Family Court of Australia (Div 2) (the Circuit Court) by which that Court dismissed the appellant’s application for judicial review of a decision of the Immigration Assessment Authority to affirm the refusal of the appellant’s application for a protection visa: DEG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 953 (J).

Background

2    The appellant was born in 1979 and is a citizen of Iran. On 13 June 2013, he arrived in Australia at Christmas Island by boat.

3    On 9 June 2017, the appellant applied for a Safe Haven Enterprise Visa (subclass 790) (SHEV) after the Minister lifted the bar under s 46A(1) of the Migration Act 1958 (Cth). To support his visa application, the appellant claimed a well-founded fear of persecution or a real risk of significant harm. Relevant to the appeal are the following three claims –

(1)    The appellant claimed a fear of harm from the Basij paramilitary militia group in Iran because of alleged detention, beatings, and sexual assault that he experienced from this group stemming from an incident in 2002 when he was found in possession of alcohol. The appellant claimed that the Basij group would pursue him should he return to Iran.

(2)    The appellant claimed a fear of harm resulting from his mental health and drug addiction issues.

(3)    The appellant claimed a fear of harm because of social media posts that he had made whilst in Australia which criticised the Iranian regime and Islam.

4    On 13 March 2018, a delegate of the Minister refused the appellant’s visa application. The refusal followed the delegate’s consideration of the appellant’s application, which was supplemented by further information provided at a SHEV interview and written submissions that were furnished to the delegate following the interview. The delegate’s decision was then referred to the Authority for review pursuant to s 473CA of the Act.

5    The Authority affirmed the decision of the delegate on four occasions. On each occasion the Authority was differently constituted. The first three decisions of the Authority were the subject of successful applications for judicial review to the Circuit Court on the ground of jurisdictional error and resulted in orders quashing the decisions and requiring the Authority to review the delegate’s decision again according to law. The fourth decision of the Authority is the subject of this appeal.

6    The appellant provided further submissions and information to the Authority at different stages. In the Authority’s reasons for its fourth decision (R) the Authority identified the information before it at R [5]–[31]. The information included submissions, statements, and new information supplied to the Authority on 15 May 2018, 16 November 2018, and 20 April 2021. In its reasons for the fourth decision, the Authority addressed the question whether the additional information engaged the requirements in s 473DD of the Act in relation to new information and determined for the purposes of s 473DD that it should have regard to much of the additional information, but not all of it. No issue arises on the appeal in relation to the Authority’s application of s 473DD to the additional information before it.

7    By an application filed 5 July 2023 in the Circuit Court, the appellant sought judicial review of the Authority’s fourth decision. On 26 September 2024 the primary judge dismissed the application from which the appellant now appeals to this Court.

8    The appellant advanced three grounds of review before the Circuit Court. The appellant’s three grounds of appeal before this Court correspond to those grounds of review, claiming that the primary judge erred in rejecting them.

9    The appeal to this Court is an appeal by way of rehearing, the purpose of which is the correction of any error in the orders made by the primary judge. With one exception there is no suggestion that the primary judge enjoyed any advantage over this Court in considering the material before her. The one exception is that the Minister tendered on appeal with the consent of the appellant a report of the Danish Refugee Council dated April 2009 as an aid to understanding one aspect of the Authority’s reasons to which I will refer later. The appellant also relied on aspects of this report.

10    I will consider each of the three grounds of appeal in turn.

Ground one: the Authority’s power under s 473DC and the ‘summons’ document

11    In support of his claim that he faced a real chance of serious harm or a real risk of significant harm as part of his application for protection, the appellant claimed that his family in Iran had received summonses requiring the appellant to present himself to the Basij.

12    The delegate recorded in the decision record that during the SHEV interview the appellant stated that the Basij had asked the police to issue a summons to the appellant, and that many summonses were sent to his father’s home address, with the last summons being received in 2014. A written submission made on behalf of the appellant following the SHEV interview claimed that the appellant “was issued summons [sic] multiple times for his attendance at the local police station”. The delegate stated that during the SHEV interview the appellant agreed to obtain the summonses that he claimed had been sent to his father between 2002 and 2014, but despite the passage of a reasonable period, the documents had not been provided to the Department. Having regard to the totality of the material, the delegate did not accept the appellant’s claim that the summonses had been issued.

13    The new information which the Authority on the fourth review determined to consider included two statements made by the appellant dated 15 May 2018 and 16 November 2018 respectively, and a certified translation of a notification document bearing the name of the “Islamic Republic of Iran Law Enforcement” which the appellant’s representatives sent to the Authority by email dated 29 May 2018 in which they described the document as a “summons”.

14    The appellant’s statement dated 15 May 2018 referred to a certified copy of a “letter” as being enclosed with the statement, and this document, written in the Farsi language, was before the primary judge as an annexure to an affidavit of the appellant’s solicitor affirmed 17 May 2024. In his statement, the appellant said that the letter required him to attend the Islamic Prosecution Office at a named place in Iran at 8.00 am on a date that the appellant specified in the statement. The “letter”, also described as a “notification”, was treated by the Authority, the appellant, and the primary judge as being a copy of a “summons” which was the subject of the certified translation. Like the primary judge, I will refer to the document as the “summons”.

15    The certified translation of the summons which the appellant provided to the Authority did not translate the date specified in the document as the date on which the appellant’s attendance was required at the named place, but treated the date as being the date of the document. As translated, the summons did not specify any date for attendance, but only a time, being 8.30 am.

16    It is evident from the appellant’s statement dated 16 November 2018 that by its first decision the Authority did not accept that the summons was genuine. The reasons for the Authority’s first decision are not before the Court, but I infer that the Authority was not satisfied that the summons was genuine for reasons including inconsistencies in the appellant’s claims which by his statement of 16 November 2018 the appellant sought to explain. Amongst other things, the appellant stated at [9] of the statement –

I provided the only copy of the summonses I could obtain to the IAA. I would like to reiterate that this is a real document and I do not know why the reviewer was not satisfied that it was genuine. I would imagine it could be compared with similar documents that the Department has received to help establish its veracity.

17    At [31] of the statement, the appellant requested an interview, stating (inter alia) –

... I believe that it would be helpful for me to attend another interview so that I can clarify the ‘inconsistencies’ that the IAA believes there has been with some of my evidence. I wish to be able to explain what I have said in this statement in person to the IAA reviewer of the Department decision. ... I would also like to show the original summonses, as it seems that the IAA has difficulty believing that they are genuine. ...

18    In the Authority’s decision which is the subject of the orders under appeal, the Authority was not satisfied that the summons was authentic. The terms of the Authority’s reasons at R [49]–[56] are material, so I will set out some key extracts –

49.    I have serious concerns about the applicant’s evidence that after he was handed over to the police and released without charge, that the Basij continued to look for him, caused summonses to be repeatedly issued for years after his release, and wanted him to be imprisoned for a period over a decade... When asked whether it have [sic] been their job to locate him when he failed to comply with the summonses given that the police were issuing the summonses, the applicant stated that summonses never asked for him to go to court but rather to hand himself to the Basij.

50.    There are differences in the applicant's evidence about who issued the summonses and what the summonses required him to do. In his SHEV statement, the applicant claims that the Basij and the police were issuing the letters/summonses and that the last one issued a couple of months prior to his departure required him to present himself at the Basij base called Meghdad... In his post-interview submission, it was submitted that summonses were issued on multiple occasions requiring the applicant to attend the police station. In his November 2018 statement, the applicant states that he was sent two summonses each year since his 2002 detention and that the Basij were after him. He explains that he did not mean to indicate that summonses required him to attend the Basij base...

51.    The country information cited above indicates that summonses are issued by courts, forwarded by the police, and require the individual in question to appear in court in the near future. While the applicant has provided an explanation about the discrepancies in his initial evidence that it was the police or the Basij who were issuing the summonses and that he did not intent [sic] to say that the summonses required him to present himself at the Basij base, I do not accept his explanation and note this evidence before the delegate that the police were not after him but were acting on behalf of the Basij and that the summonses required him to present himself at the Basij base, which I note it [sic] at odds with the country information regarding the issuing of summonses. The English translation of what is referred to as a summons received by his family in Iran indicates that the document is a notification issued by the Islamic Republic of Iran Law Enforcement for the applicant to attend the Public and Revolutionary Court of Ahwaz. It does not refer to the Basij or the police station and is at odds with the applicant's evidence in his SHEV statement that the summons [sic] received a couple of months prior to his departure, which appears to have been this particular one given that he departed the country in May 2013, indicated that he was to present himself to the Basij base called Meghdad. As indicated above, in his SHEV statement and at the SHEV interview, the applicant specifically stated that he was asked to attend the Basij base which he did not comply with due to the incident with the Basij in 2002, and I do not accept his explanation provided in response to the delegate's decision. The date of attendance is noted as "08:30 AM" and the time of attendance as "08:30" and the reason for attendance as "carrying and possession of Alcoholic Drinks". While the document is dated, it does not include the date on which the applicant was required to present before the court…

52.     … I find it difficult to accept that if the applicant was of ongoing interest to the Basij and the police were sending him summonses to present himself to the Basij/police /court at least one or two times each year since 2002, which he did not comply with, that he would have been able to obtain his passport with ease and not encounter any issues in the process of leaving the country…

53.    Overall, I do not find the applicant's explanations about why the Basij were interested in him and his ability to work and reside in Ahwaz area for over a decade after the 2002 incident without being found and dealt with by the Basij totally unconvincing [sic]… Like the delegate, I am also of the view that if the Basij wanted to arrest the applicant or were compelling the police to locate and arrest the applicant, that they would have easily been able to locate him. The applicant was not charged with any offences and there is no credible evidence that he had an ongoing court matter…

54.    Given the differences in the applicant's evidence about the claimed summonses, the implausibility of his evidence that the authorities continued to issue summonses which he did not comply with for over a decade, and issues noted about the copy of the document/summons provided by the applicant, I do not accept that the Basij, the police, or the courts issues [sic] summonses requiring the applicant to present himself to the Basij or the court. As noted above, country information indicates that summonses can be easily obtained illegally and are easy to forge by erasing information in the summons and adding new details. While I note the applicant's submission that he wished to provide the IAA with the original summons and that the document could be compared with similar documents that the Department has received to help establish its veracity, the IAA was provided with a clear colour copy of the document and I do not consider that viewing the original would establish that the document is authentic. Given my concerns and the country information around the ease of obtaining such documents illegally, I am not satisfied of the authenticity of the document presented as a summons and do not accept that any summonses were issued in relation to the applicant...

…

56.    … Like the delegate, I am also not satisfied that the applicant was of any ongoing concern to the Basij or the authorities after his release or at the time of departure for Australia in 2013.

(Emphasis added.)

19    By his first ground of review before the Circuit Court, the appellant claimed that the Authority “unreasonably failed to exercise its power under s 473DC of the Migration Act before making a finding that the summons was fraudulent”. That ground was rejected by the primary judge because her Honour held that the Authority did not make a positive finding that the summons was fraudulent. The primary judge’s rejection of the first ground of review forms the basis of the appellant’s first ground of appeal –

1.    The primary judge erred in failing to find that the second respondent (‘Authority’) unreasonably failed to exercise its power under s 473DC of the Migration Act 1958 (‘the Act’) before making a finding that the summons was fraudulent.

Particulars

(a)    The primary judge erred at J [45] in finding that the Authority did not make a finding that the summons relied on by the appellant was fraudulent.

(b)    The Authority acted unreasonably in failing to exercise the power under s 473DC of the Act to get new information before making that finding.

20    For the reasons that follow, the primary judge was correct to conclude that the first ground of review relied on a claim that the Authority found that the summons was fraudulent, and that this assumption was incorrect. As a result, the appellant’s first ground of appeal is not made out.

The primary judge’s reasons on ground one

21    At J [36], the primary judge correctly identified that R [54] of the Authority’s reasons (set out at [18] above) reflected the Authority’s “central finding” in relation to ground one, which was that the appellant’s evidence about the summonses being sent was implausible and that a copy of one “summons” sent to the appellant’s parents, which the appellant provided to the Authority, was not a genuine document. In reliance upon the country information before it which indicated that summonses could be easily obtained illegally and forged, the Authority could not be satisfied of the authenticity of the document and did not accept that summonses had in fact been issued by the Basij, the Iranian police, or an Iranian court which required the appellant to present himself to the authorities.

22    At J [43] and [44], the primary judge noted that the issue of the authenticity of the summons had been raised with the appellant by the delegate, and that the Authority’s decision on the same issue was consistent with the delegate’s decision and the available country information. The delegate had raised with the appellant the fact that the appellant had obtained an Iranian passport shortly before departing Iran without any problems and that it seemed implausible that if there were numerous outstanding summonses in relation to the appellant, that it would not have been picked up during the process of obtaining a passport. Additionally, it had been put to the delegate that the appellant had continued working in Iran after the assault in 2002, and that it was difficult to accept that the authorities would not have been able to find him if there were outstanding summonses with which he had not complied. At J [44], the primary judge concluded that the findings made by the Authority were consistent with the available country information and reflected the concerns raised with the appellant repeatedly by the delegate.

23    The primary judge recognised that the appellant’s claim relied upon there having been a positive finding made by the Authority that the summons was fraudulent, in that details had been erased on the document and replaced with the appellant’s details. The primary judge held that a fair reading of the Authority’s reasons did not support a conclusion that such a positive finding had in fact been made. The primary judge considered that the Authority understood the country information to mean that summonses could be obtained illegally, and whether obtained legally or otherwise, could be tampered with through the erasure of information. This, in addition to the Authority’s finding that there was no need for it to sight an original of the summons as it would not assist in determining the authenticity of the document, suggested that even if the Authority were satisfied that the document produced by the appellant did not contain any erasures or amendments, this did not mean that the Authority would have concluded that it had not been obtained illegally.

24    The primary judge considered it dispositive of the issue that the Authority, having been provided with a clear and colour copy of the alleged summons document, was satisfied that the document had not been tampered with but was nonetheless of the view that, in light of the country information, it could not be satisfied of the document’s authenticity.

25    At J [49], the primary judge concluded that the Authority’s reasoning and finding in relation to the summons was reasonably open to it on the material before it, and that no error had occurred.

26    On the application to the Circuit Court, the appellant relied upon two decisions of this Court to support an argument that it was unreasonable for the Authority not to use its powers to obtain information, namely the original summons document. The primary judge considered that the appellant’s reliance upon DCP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 290 (DCP17) and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) did not assist the appellant’s case.

27    Starting with DCP17, the primary judge considered that the appellant’s reliance upon this authority was “misplaced” because that case related to documents that had been relied upon by the relevant tribunal, but in circumstances where the documents had not been put to the relevant applicant for comment. The issue was therefore whether the tribunal was required under the Act to provide the applicant with “clear particulars” of information which may result in the affirmation of the decision under review. At J [51], the primary judge noted that this was not in issue in the appellant’s case before the Authority and disposed of its relevance to the appellant’s matter on that basis.

28    Turning to CRY16, the primary judge noted that that case concerned a failure by the relevant tribunal to consider exercising its power to get new information or documents, in circumstances which a Full Court comprising Robertson, Murphy and Kerr JJ considered to be legally unreasonable. Similarly to the present case, the relevant issue in CRY16 was whether the tribunal had acted unreasonably in not considering whether to exercise its discretion under s 473DC of the Act to give the visa applicant an opportunity to address the dispositive issue of relocation, in circumstances where that issue had not been the subject of the delegate’s consideration. It was held that the tribunal did not have information, which the applicant was likely to have, which would have affected the prospect of relocation. Accordingly, at J [55], the primary judge concluded that the appellant’s reliance upon CRY16 was based on an erroneous premise that the Authority had made a finding that the appellant forged the relevant summons and that the Authority so found before inspecting the original of the summons. The primary judge did not accept that such a finding was made and that therefore CRY16 did not assist the appellant’s case.

The Authority did not make a finding that the summons was fraudulent

29    The central issue in relation to ground one concerns whether the Authority made a positive finding that the summons document produced by the appellant was the result of forgery. On this appeal by way of rehearing, this Court is in as good a position as the primary judge to determine whether the Authority so found, applying the correctness standard of appellate review.

30    The appellant submitted that the Authority made a finding that the summons document which had been produced by the appellant “had been fraudulently altered” and that such a finding was made “without first exercising the powers that a reasonable decision-maker would have exercised, including agreeing to receive the original summons document from the appellant and compare it to similar documents received by the Department”. Additionally, the appellant submitted that a reasonable decision-maker would have put to the appellant that the summons had been altered and allowed him to respond to that proposition.

31    At [15] of his written submissions, the appellant submitted that the Authority found that the summons document was fraudulent by stating, “I am not satisfied of the authenticity of the document presented as a summons”. This quotation is taken from R [54], which I have set out in full at [18] above.

32    The appellant’s submissions rely upon reading the Authority’s reasons at R [49]–[56] as finding that a “process” of illegally obtaining summons documents in Iran necessarily required two steps: firstly, an individual obtaining a fraudulent “base” document illegally and then, secondly, tampering with it so as to create a fraudulent product that could be used by the individual. I do not accept this reading of the Authority’s reasons. The reasons given by an administrative decision-maker must be read as a whole and in context. The purpose of the Authority’s inquiry into the summons document was to determine whether the appellant faced “a real chance of serious harm or was at a real risk of significant harm” to qualify for a protection visa. The authenticity of the summons document was important to this determination because if the Basij, or the Iranian police for that matter, had issued genuine summonses directed to the appellant then this may have satisfied the Authority that he faced the prospect of such harm. This context is important because it explains why the Authority was not required to make a positive finding that the summons document was fraudulent, and it did not do so. It was concerned solely with establishing authenticity of the document, not whether it was the result of forgery or another alteration process.

33    It is reasonably clear from the Authority’s reasons at R [54] that its understanding was that there is not necessarily one kind of inauthentic summons document that can be obtained in Iran. The use of the word “and” in the sentence “summonses can be easily obtained illegally and are easy to forge by erasing information” indicates that summonses may be illegally obtained but not necessarily forged or altered, though they may be both. The question whether the document had been altered or forged is a subset of the broader question of authenticity and was a step further in the inquiry which the Authority was not required to, and did not, take. Accordingly, the primary judge was correct to find at J [45] that no positive finding had been made.

34    The appellant further submitted that the primary judge’s finding that although the Authority “was satisfied that the document had not been tampered with in any way” it was “nonetheless of the view… that it was not satisfied of the authenticity of the document” reflected an “untenable” interpretation of the Authority’s reasons. In this respect, the appellant submitted that the two propositions that (a) a genuine summons could easily be obtained illegally; and (b) that an illegally obtained summons could then be easily altered, were “not two alternative propositions”.

35    I do not accept the appellant’s submissions. Far from being “untenable”, the Authority’s statement at R [54] that “country information indicates that summonses can be easily obtained illegally and are easy to forge by erasing information in the summons and adding new details” is disjunctive and suggests two distinct possibilities: the first, about illegally obtaining summonses and the second, by taking a summons and tampering with it. That understanding is supported by the country information in the 2009 Danish Refugee Council report which was referred to by the Authority at R [48] and was tendered on appeal without objection. That report included the following passage –

The Attorney at Law stated that summonses can easily be obtained illegally and that it is also easy to forge summonses by erasing information in the summons and adding new details.

36    Rather than making a positive finding that the summons was fraudulent as the appellant claimed, the Authority was simply not satisfied as to the authenticity of the document for a combination of the following reasons, none of which involved a finding that the appellant had fraudulently tampered with the document –

(1)    There were important differences in the evidence given by the appellant in relation to the claimed summonses (for example, which body issued the summonses and what they required the appellant to do).

(2)    There was an implausibility in the appellant’s evidence when he suggested that the Iranian authorities had continued to issue summonses which the appellant did not comply with for over a decade.

(3)    The English translation of the summons did not contain a date on which the appellant was required to present before the Iranian court and was inconsistent with the appellant’s claims that he had been required to report to the Basij base.

(4)    The country information suggested that summonses could be illegally obtained relatively easily.

Section 473DC of the Act and the claimed unreasonableness of the Authority in failing to get new information

37    The primary judge was correct to find that the substance of the appellant’s first ground of review fell away because there was no positive finding as to fraud. Putting that to one side, in any event I do not consider that the Authority unreasonably failed to exercise its power under s 473DC of the Act to get new information.

38    Section 473DC of the Migration Act has been repealed, but at the time of the Authority’s fourth decision it provided –

473DC    Getting new information

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

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

(b)    the Authority considers may be relevant.

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

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

(a)    in writing; or

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

39    The appellant submitted that it was unreasonable for the Authority not to take steps to call for the original summons document, for example by exercising the power in s 473DC, and comparing it to others received by the Department, noting that the appellant had requested the Authority do so in the event it doubted the genuineness of the document. It is worth noting that s 473DC(2) expressly provided that the Authority was not under a duty to accept or get new information despite being requested to do so by a referred applicant.

40    In support of his claim of legal unreasonableness, the appellant submitted that a feature of the material which made it unreasonable for the Authority not to call for the original summons document was a discrepancy between dates recorded on the Farsi and English translated versions of the summons document. Faced with the potentially conflicting information, the appellant submitted that the Authority ought to have exercised its power to obtain the original summons and compare it for itself.

41    The appellant’s submissions that are summarised above must be rejected. Even if it would have been reasonable for the Authority to make a further inquiry and get the original document, it does not follow that a failure to do so amounted to legal unreasonableness and a jurisdictional error: Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184; 256 FCR 235 at [33] (Dowsett, Pagone and Burley JJ). A charge that the Authority acted unreasonably in choosing not to exercise its power under s 473DC requires the appellant to engage with the “usually high” threshold that must be met in order to show that a decision of an administrative character is unreasonable, which is to be assessed at the alleged time that the power should have been exercised: Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

42    The Authority was satisfied that it had been given a clear copy of the summons document. As a result of the concerns that it held as to the authenticity of the summons document, which I have set out above at [36], the Authority satisfied itself that viewing the original summons document would not have established the document’s authenticity because it would contain exactly the same information as that contained in the copy. It was not the case that the Authority considered the copy of the summons to be blurred, compromised or of poor quality. In those circumstances, there was nothing unreasonable or illogical in the Authority declining to sight the original document because it could not have changed its state of satisfaction, having regard to the circumstances surrounding the claims made by the appellant.

43    Regarding the submissions made by the appellant that the Authority unreasonably failed to put to the appellant that the summons document was fraudulent and that this failure denied the appellant an opportunity to give “a meaningful response”, I have already held that the Authority did not make a finding that the summons document was fraudulent. I accept, as the primary judge found at J [43], that the authenticity of the summonses was an issue that had been raised by the delegate, meaning that the appellant was on notice of the concerns that were held. At the hearing, counsel for the appellant accepted that the delegate had disbelieved the appellant’s claims in relation to having been sent multiple summonses over a period of time. However, the appellant maintained that because the summons document had not actually been before the delegate, it was not possible for the fraud allegation to have been raised at the delegate stage and therefore the primary judge erred at J [43].

44    There was no error in the primary judge’s reasons at J [43]. What her Honour was referring to in that paragraph was the authenticity of the summons in the broad sense. That is, the authenticity of the claim being made by the appellant that summonses had in fact been issued by Iranian authorities.

Ground two: the claimed failure by the Authority to consider harm in relation to drug rehabilitation

45    The appellant’s second ground of appeal claims that the primary judge erred in finding that the Authority had considered the claim advanced by the appellant that he may face significant harm if he was removed to Iran and treated for drug addiction at an Iranian rehabilitation clinic and is in the following terms –

2.    The primary judge erred in failing to find that the Authority failed to consider an issue in the review, namely whether the appellant faced a real risk of significant harm if forcibly confined to a drug rehabilitation centre in Iran.

Particulars

(a)    The appellant claimed that he faced a real risk of significant harm from the treatment inflicted in Iranian drug rehabilitation centres.

(b)    The primary judge erred at J [76] in finding that the Authority considered that claim, as opposed to considering only whether the appellant would be able to access treatment for drug addiction.

46    The delegate’s reasons are relevant to the appellant’s claims in relation to drug addiction, so I will commence by referring to those reasons before turning to the Authority’s reasons in considering this ground of appeal.

47    The delegate noted in his reasons that, although the appellant did not advance specific claims in relation to drug addiction, it was apparent to the delegate that the appellant had previously suffered and may have still been suffering from drug addiction. On this basis, the delegate proceeded to address the availability of drug addiction treatment in Iran, as well as the conditions in which treatment is given. Under the heading “Drug Addiction Treatment”, the delegate noted the following –

Iran has one of the highest rates of drug addiction in the world, and it is estimated that there are up to two million Iranians with a drug addiction… Drug addiction is considered to be a crime in Iran… Those who are registered addicts are exempted from punishment if they have a certificate of treatment from a rehabilitation centre. Those without a certificate may be taken into custody by police and admitted to a rehabilitation centre.

Iran has government and non-government rehabilitation centres, as well as syringe/needle exchange and methadone programs available to Iranians with drug addictions…

There have been some unfavourable reports in relation to the government run rehabilitation centres. One report stated that the treatment of patients in some government run rehabilitation centres was unfavourable and included corporal punishment and a lack of adequate food. In a 2014 article, AI Monitor quoted a man who had recently been released after a 40-day rehabilitation period at a government centre. The man, who was from south Tehran and uses narcotics, described the government run rehabilitation centre as ‘true hell’. The same report cites a January 2014 report by an Iranian daily newspaper stating that 53 people had died of bloody diarrhoea at the Shafagh rehabilitation centre. At the same centre a month earlier, ‘a number of addicts at the camp had set fire to their mattresses… in protest of their horrible living conditions, enabling them to escape in the ensuing blaze’.

48    The delegate then concluded on page 16 that –

Whilst I note that there appears to have been some criticism regarding aspects of the treatment available to drug addicts in Iran, the above cited country information indicates that a range of drug addiction facilities and services are available to the applicant. The applicant is an Iranian citizen; therefore there is no reason to consider that he would not be able to access these services to a level available to other Iranian citizens and adequate for his specific needs if he returned to Iran.

Based on the available country information in relation to drug addiction services in Iran, I consider that if the applicant returns to Iran he would be able to access adequate treatment for drug addiction. Therefore I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Iran, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.

(Emphasis added.)

49    The Authority noted at R [18] that the appellant had provided further information relating to his drug addiction that was not before the delegate.

50    In his 15 May 2018 statement to the Authority, the appellant stated that he had become addicted to heroin during his time in Australia and that he was on a methadone program. The Authority referred at R [59] to records that noted that the appellant had reported having commenced the use of illicit drugs in 2015 after losing his job and becoming homeless. The appellant stated to the Authority in his 15 May 2018 statement that he had been reading online about drug addiction services in Iran, and had discovered that drug addicts were placed like animals in filthy rooms in rehabilitation centres, and that those holding 30 grams or more were considered drug dealers and can be executed. The appellant further submitted to the Authority that his prison sentences in Australia for drug use and stolen goods would be considered anti-social in Iran and that he would be punished accordingly.

51    At R [19], the Authority stated –

In support of the claims regarding treatment of drug addicts in Iran, the applicant's submission included references and extracts from a number of sources about social and criminal risks faced by people suffering from drug addiction and difficulties in accessing treatment. Based on the information reported in the sources referenced, it was submitted that it was apparent that drug addiction services in Iran were either prohibitively costly or limited to compulsory rehabilitation camps which were less likely to provide treatment than to expose drug addicts to degrading living circumstances. The reports and extracts included in the submission were from reports published in years between 2014 and 2017 and footnoted in the submission by way of hyperlinks. It was submitted that while the delegate considered treatment options for drug addicts in Iran, the applicant was not provided an opportunity during the interview to comment on that information or provide his own evidence in this regard.

(Emphasis added.)

52    In his 16 November 2018 statement, the appellant stated that he was still on a methadone program to treat his heroin addiction and that it would be difficult to maintain his treatment if he was removed from Australia.

53    In assessing whether it would consider the appellant’s evidence regarding his drug addiction, having regard to s 473DD of the Migration Act, the Authority decided it could consider the new information said to comprise the “details regarding the appellant’s drug addiction” but not the extracts of country information referred to in the appellant’s submission.

54    To make out his second ground of appeal, the appellant seeks to impugn R [60]–[65] and submits that the Authority failed to consider whether the treatment provided by drug rehabilitation centres in Iran itself constituted significant harm within the meaning of s 36(2A) of the Act. The relevant extracts from those paragraphs with which the appellant takes issue are set out below –

60.    Based on the information before me, I accept that the applicant suffered from mental health conditions for which he received treatment and was reviewed by mental health practitioners while in immigration detention… The information confirms, and I accept, that in Australia the applicant commenced used of illicit drugs and was on methadone program [sic] for treatment of his addition to heroin…

…

62.    Country information also indicates that drug addiction is widespread across Iran. While drug trafficking is a crime, drug addiction has not been considered a crime since the drug-law reform in 2010, but drug addicts may be punished for abusing drugs in public. Reports published between 2013 and 2015 noted that there were more than 600 drug rehabilitation centres across the country. With an eye to reducing the expenses of treatment and establishing resources for more patients, some clinics also provided online and telephone consultations…

63.    … In terms of support for drug addicts, [a 2020 DFAT report] noted that as of June 2017, there were 1,300 rehabilitation centres for drug addicts countrywide, in addition to nearly 7,500 treatment and harm reduction centres, with NGOs active in provision of these services. It was also noted that local NGOs reported that police did not generally victimise or harass drug addicts, but occasionally received orders to round them up…

64.    … I accept that the level of treatment and care that the applicant has been able to access in Australia for treatment of his mental health and drug addiction, may not be accessible to him if returned to Iran. Nonetheless, considering the country information regarding Iran’s healthcare system and the provision of mental health services and treatment and rehabilitation for drug addicts, I am not satisfied that there is a real chance that the applicant will not be able to access any ongoing treatment or medication that he may require if returned to Iran, for any reason specified in s 5J(1) of the Act…

65.    … I do not accept that there is a real chance that the applicant would face any harm if he sought treatment for any mental health issues or drug addiction, if returned to Iran, or that he faces a real chance of any persecution due to any mental health conditions or drug addiction he may continue to have…

(Emphasis added.)

55    For reasons that will become apparent, the conclusions drawn by the Authority at R [80] and [86] in relation to its consideration of “significant harm” are important –

80.    Considering the applicant’s circumstances as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of serious harm at the hands of the authorities or any other person in the reasonably foreseeable future… While I accept that the applicant… became addicted to heroin and was on the methadone program… I am also not satisfied that he would be denied access to treatment for any ongoing mental health or drug addiction issues… or that he would face a real chance of persecution for these reasons.

…

86.    I do not accept that the applicant will be denied and [sic] medical or other services for any ongoing mental health or drug issues that he may continue to have for any reasons specified in s 5J(1) of the Act. On the information before me, I am not satisfied that any residual or ongoing mental health or drug addiction issues that the applicant may continue to suffer from would lead him to be arbitrarily deprived of his life or face the death penalty. “Torture”, “cruel and inhuman treatment or punishment” and “degrading treatment and punishment” are defined in s 5(1) of the Act… I am not satisfied that the applicant faces a real risk of significant harm for this reason…

(Emphasis added.)

The primary judge rejected ground two

56    In relation to ground two, the primary judge noted at J [59] the Authority’s acceptance that the appellant had suffered a decline in his mental health and developed an addiction to heroin, for which he was receiving treatment in Australia.

57    Before the primary judge, the appellant pointed to the delegate’s decision record and its references to the country information indicating that Iranian rehabilitation centres featured corporal punishment, inadequate food and otherwise reflected “true hell”. That information also referred to the “horrible living conditions” at one rehabilitation centre in Iran where 53 people had died of bloody diarrhoea. The appellant claimed that this country information was not considered by the Authority and that, although the Authority had considered the appellant’s ability to access treatment and medication if he were returned to Iran, it had failed to consider whether the treatment provided by rehabilitation clinics itself constituted significant harm for the purposes of s 36(2)(aa) and (2A) of the Act.

58    The appellant claimed that this issue arose clearly on the material before the delegate and the Authority failed to consider it. In so erring, the appellant submitted that this constituted a failure by the Authority to perform its statutory task under s 473CC and was an error of the kind identified in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389. Finally, the appellant submitted before the primary judge that this was a material error in that it was possible that the Authority could have accepted that the appellant faced a real risk of harm if this claim had been considered. At J [68], the primary judge accepted that if the Authority did not deal with the appellant’s claim as framed, then this would “constitute a failure to undertake its statutory task and that such an error would be material”.

59    At J [63], the primary judge held that the Authority had dealt with the appellant’s addiction and the possible services available to him in Iran. The primary judge also stated at J [64] that the Authority had considered the material submitted by the appellant in relation to his drug addiction.

60    In relation to the appellant’s submissions that the Authority had failed to consider whether the treatment provided by rehabilitation clinics itself constituted significant harm, the primary judge held at J [69] that the Authority did consider this claim and that no error had occurred. In support of this finding, the primary judge considered the function of the Authority, that the Authority had referred to the relevant submissions put to it by the appellant, the quality of the drug rehabilitation services in Iran based on country information, the same considerations by the delegate, and that the Authority’s reasons “ought to be read as a whole”. At J [76]–[77], the primary judge stated –

76    … I accept the Minister’s submission that it is evident that the Authority engaged with the claim by the applicant that if he were required to return to Iran he might be forced to attend such a centre and that this would expose him to a real risk of harm…

77    … However, the Authority’s reasons ought to be read as a whole. When read as a whole and without a keen eye to error, it is clear that the Authority did not confine its assessment of the applicant’s claim to whether he would be able to access treatment but also to whether in accessing that treatment, in relation to his drug addiction, he was at risk of harm to the requisite level.

61    The primary judge accepted a submission by the Minister that it was evident from the Authority’s reasons that it had engaged with the claim made by the appellant that any forced attendance at a drug rehabilitation centre could expose him to a real risk of harm. In so finding, the primary judge referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 and held that, when read as a whole and fairly without an eye keenly attuned to error, the Authority’s reasons at R [80]–[86] demonstrated that the Authority properly identified and considered the appellant’s claim.

The Authority erred in failing to consider whether the appellant faced a real risk of significant harm in relation to drug rehabilitation

62    The Authority found that the appellant did not meet the refugee criteria in s 36(2)(a) of the Migration Act. The appellant did not contest this aspect of the Authority’s reasons, but instead focused on the way in which the Authority dealt with the complementary protection claim under s 36(2)(aa), namely whether there were substantial grounds for believing that the appellant faced a real risk of significant harm if he were to be removed from Australia to Iran.

63    The appellant drew the Court’s attention to the submissions made to the Authority on his behalf by Refugee Legal on 15 May 2018 which included his statement of that date. The appellant submitted that the Authority failed adequately to engage with those submissions in respect of the significant harm that he would face if he were returned to Iran as a result of being required to undergo treatment for his drug addiction.

64    It was accepted by the appellant, both before this Court and the primary judge, that the Authority considered the risk of harm to the appellant if he were returned to Iran by reason of his drug addiction in relation to being able to access necessary treatment and medication. The appellant submitted, however, that such consideration was limited only to access to treatment and the Authority failed to consider whether the treatment at drug rehabilitation clinics itself constituted significant harm, within the meaning of s 36(2A) of the Act.

65    In my view, the Authority fell into jurisdictional error in failing adequately to consider a submission put to it, namely that the appellant faced a real risk of significant harm if forcibly confined to a drug rehabilitation centre in Iran because of the nature of the treatment at such centres. I therefore respectfully conclude that the primary judge was in error in finding otherwise.

66    The appellant’s submissions to the Authority dated 15 May 2018, including his attached statement, advanced the following claims –

(a)    The appellant was at risk of suffering “direct targeted serious harm (including threats to his life or liberty, death and significant physical harassment and ill-treatment) by the Iranian government and security forces, including the Basij, motivated by” several “essential and significant reasons” including the appellant’s “heroin addiction”.

(b)    There was country information before the delegate indicating the cruel, inhuman and degrading conditions present in drug rehabilitation centres in Iran. The appellant’s written submissions to the Authority included the following passages –

The delegate’s decision refers to these “rehab camps” and properly quotes available country information regarding reports of “corporal punishment and lack of adequate food” and descriptions of the camps as “true hell”.

Since the implementation of drug law reform in Iran in 2010, it is reported that the Iranian authorities have regularly intervened to collect street addicts and confine them to these compulsory camps. …

…

Based on the available country information, it is apparent that drug addiction services in Iran are either prohibitively costly or limited to compulsory rehabilitation camps, which are less likely to provide treatment than to expose drug addicts to degrading living circumstances and crime, in circumstances where crime is subject to procedurally unfair and disproportionate punishment by the Iranian authorities.

…

based on the limited availability and poor quality of drug addiction services in Iran, there is a real risk that, as a necessary and foreseeable consequence of being removed to Iran, [the appellant] will suffer significant harm (emphasis added).

67    The combined force of these submissions raised a claim that a risk of harm as a result of the appellant’s drug addiction gave rise to a real risk that the appellant would suffer significant harm if removed to Iran because of the degrading and inhuman conditions and quality of drug rehabilitation facilities in Iran.

68    I am satisfied that the Authority considered the appellant’s claims in relation to access to drug rehabilitation facilities, but I am also satisfied that the Authority did not consider the appellant’s discrete claims in relation to conditions to which he might be exposed in those facilities and whether the risk of exposure to such conditions engaged the complementary protection criterion under s 36(2)(aa). I do not accept the Minister’s submissions that those aspects of the Authority’s reasons by which it determined to receive new information about the appellant’s drug addiction show that it actively engaged with the claims that were clearly made in relation to the conditions in drug rehabilitation facilities in Iran. Nor do I consider the Authority’s conclusions at R [65] which I have set out at [54] above and on which the Minister relied demonstrate any sufficient engagement with those discrete claims.

69    When assessing the Authority’s reasons as a whole, there is a clear absence of any express consideration of the claim. The closest that the Authority came to engaging with a consideration of the appellant’s claim is at R [86]. In that paragraph, the Authority broadly identified “drug addiction issues” and then noted the concepts of “torture, cruel and inhuman treatment or punishment and degrading treatment and punishment” by reference to s 5(1) of the Act. Though this paragraph reads as linguistically confused, even on the most beneficial reading the Authority did not attempt to draw any link between the appellant’s drug addiction issues and what the appellant claimed was the risk, namely that because of his drug addiction there was a likelihood that he would require rehabilitation, which itself might present a risk that he would suffer significant harm.

The error by the Authority was material

70    The Authority’s failure to consider this claim was material because there is a realistic possibility that the Authority could have reached a different conclusion had the error not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7].

The third ground of appeal: claimed failure by the Authority to consider harm in relation to the appellant’s social media posts

71    The appellant’s third ground of appeal concerns a claim that he would face a real risk of significant harm upon his return to Iran in relation to social media posts he has made while in Australia. The appellant claimed that such a risk arose because the comments he had made on various social media platforms were critical of the Iranian regime and of Islam.

72    In the appellant’s 16 November 2018 statement to the Authority, the appellant submitted the following –

15.    I have recently opened social media accounts on Facebook and Instagram and have used these profiles to comment on pages which express negative sentiments about the Iranian government such as the problems with the economy and political process.

16.    I have not posted much comments on my page because I am scared of the impact that could have on my family still in Iran, and on myself if I was to return. However, a few days ago, I put a post on Instagram with some comments critical of the Iranian government and the Supreme leader, Khamenei. I talked about how some government officials are exempted from paying tax and said that they were filthy dogs. Yesterday, my brother contacted me and asked me to delete the post immediately. My brother told me that he has been trying to open his business however, it has been really difficult. On the day he contacted me, he was told to come in for more questioning about the business and he was also asked about me and my Instagram post. He also told me that my father was called in for questioning separately about the business that he previously owned and also asked about me and the Instagram post. I am not sure but it was Ettela'at who questioned them. I deleted post immediately [sic], however I am worried for my family's safety.

17.    I believe that there will be a risk that my social media activity could get me into trouble.

18.    I would continue to hold and express negative views about the Iranian regime if I was to be forced to return to Iran.

73    In his 20 April 2021 statement to the Authority the appellant set out a series of comments that he had posted to social media which were said to reflect his “anti-government and anti-clerical views”. The Authority noted at R [24]–[27] that the appellant provided it with screenshots of the comments in Persian, with English translations. The Authority recognised that they were not before the delegate and were therefore considered to be “new information”, but the Authority determined to consider them because the comments post-dated the delegate’s decision and the Authority was satisfied that they could not have been provided to the delegate.

74    The appellant claimed that the Authority failed to consider whether the appellant faced a real risk of exposure to significant harm upon his removal to Iran due to the application process for Iranian travel documents necessarily bringing to the attention of Iranian authorities the appellant’s social media activity. The primary judge rejected this claim, holding at J [91] that the Authority had understood and considered this claim. The third ground of appeal is therefore in the following terms –

3.    The primary judge erred in failing to find that the Authority failed to consider whether, as a necessary and foreseeable consequence of being required to apply for an Iranian travel document to facilitate his removal from Australia, the Iranian authorities would become aware of the appellant’s social media posts, which would expose the appellant to a real risk of significant harm.

Particulars

(a)    The primary judge erred at J [91] in finding that the Authority understood and considered the appellant’s claim to face harm as a result of his social media posts, which could come to authorities’ attention as part of the process of applying for travel documents, despite not expressly referring to the claim.

The primary judge’s rejection of the third ground of review

75    At J [85], the primary judge held that the Authority had accepted the appellant’s claim to have made the posts, that the posts were reflective of his views, and that the posts had not been made for the sole purpose of strengthening the appellant’s claim for refuge in Australia.

76    However, the primary judge also stated that the Authority did not accept the appellant’s claim about a specific Instagram comment being deleted at the request of the appellant’s brother. The appellant had claimed that both his brother and his father had been questioned about the post on separate occasions and that it had caused issues for the opening of the brother’s business. Without a statement from either his father or his brother, the Authority did not accept that the post had come to the attention of Iranian authorities and caused issues for the family. Further, the Authority had identified that the appellant’s last comments were posted in 2020 and that the appellant did not submit that his family had been questioned about his social media activity since then.

77    The primary judge highlighted the country information before the Authority, which suggested that though the Iranian government monitored social media and that individuals who posted content critical of Iran may attract adverse attention, the authorities could not comprehensively and effectively monitor the social media activity of Iranians. As the primary judge pointed out at J [87], the Authority’s view evident from its reasons was that the appellant’s social media activity was limited and sporadic and therefore unlikely to come to the attention of the authorities.

78    At J [87], the primary judge also noted that the Authority had considered the appellant’s claim that his ill mental health meant that he could not fully understand the consequences of his online posting. In response to this claim, the Authority noted that even if this were accepted, the country information indicated that the Iranian authorities could not and did not monitor all Iranians online, but were rather more concerned with journalists and activists. The Authority also considered that the appellant had not submitted that his family had been questioned about him in recent years. Taken together, the Authority concluded that the appellant’s social media activity was not in the consciousness of the Iranian authorities and would not likely be in the foreseeable future.

79    Before the primary judge, the appellant submitted that the Authority was required to consider that, given the appellant would need to return to Iran on a voluntary basis with an Iranian passport or other travel documents, there was a risk that his social media activity would come to the attention of the Iranian authorities. In failing to do so, the appellant submitted that the Authority had failed to consider a necessary consequence of his removal from Australia

80    Despite the primary judge accepting that the Authority had not expressly referred to the appellant’s claim to fear harm from his social media posts as a result of having to apply for travel documents, the primary judge nonetheless concluded that the Authority had understood and considered this claim. At J [91]–[92], the primary judge reasoned that –

91.    It is the case that the Authority did not expressly refer to the claim to fear harm on his return to Iran from his social media posts coming to the attention of the authorities, including as a result of having to apply to obtain travel documents to allow the applicant’s repatriation. However, a fair reading of the Authority’s reasons suggest that it did understand and considered this claim. At paragraph [87] of the Authority’s reasons, after expressly dealing with:

(a)    the applicant possibly coming to the attention of the authorities for having consumed alcohol; and

(b)    the risk of harm to the applicant of his mental health and drug addiction;

the Authority said:

I have found above that there is otherwise no real chance of the applicant facing any harm. The Federal Court has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. Having regard to my findings and reasoning above I am also satisfied that the applicant does not face a real risk of significant harm.

81    The primary judge further stated at J [92] that this global assessment of a real risk of significant harm was referrable to the Authority’s earlier findings on the issue, which included a consideration of a risk of harm in relation to the appellant’s social media posts. At J [94], the primary judge stated –

…the Authority did consider the risk of harm to the applicant from returning to Iran on temporary travel documents and the associated risk to him given the other matters he had raised in his claim, including that he had made social media posts adverse to the authorities.

82    Accordingly, the primary judge concluded at J [98] that ground three had not been made out.

The Authority did not err in its consideration of the appellant’s risk of harm as a result of his social media activity

83    When read as a whole, the Authority’s reasons demonstrate that it did consider the risk of harm to the appellant as a result of his social media activity, including in relation to any required process for obtaining travel documents. It is the combination of a series of findings made by the Authority that, when read together, address whether, as a necessary and foreseeable consequence of removal, Iranian authorities may become aware of the appellant’s social media posts and therefore whether the appellant may face a real risk of significant harm.

84    The appellant submitted that the Authority was required to consider the appellant’s risk of harm in the context of the findings that the Authority itself had made. In response to a question from the Court as to whether the underlying claim forming the basis of ground three was a claim expressly articulated to the Authority or one necessarily arising from the material before it, counsel for the appellant submitted that it was “part of one and part of the other”. It was accepted that the appellant’s claim to fear harm as a result of his social media activity was squarely put by way of submissions to the Authority. However, counsel also accepted that the collateral claim that the removal of the appellant to Iran would require him to obtain Iranian travel documents that would potentially result in Iranian authorities identifying the appellant’s social media posts in the process had not been a claim expressly made by the appellant to the Authority. As a result, the appellant submitted that this claim arose as an “implied… natural consequence flowing from the Authority’s own findings”.

85    The appellant submitted that, in accordance with DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 (DQU16), the Authority was required to consider the necessary consequences of the appellant’s removal, including the consequences of the removal process, as part of the Authority’s consideration of s 36(2)(aa) of the Migration Act. The passage relied upon by the appellant is at [18] of DQU16 –

As is self-evident, the text of s 36(2)(a) and s 36(2)(aa) is different and therefore, unsurprisingly, the statutory questions are different: they are not interchangeable. And they are different because the purpose of the inquiry under each provision is different. Determining whether a person has a well-founded fear of persecution for a Convention reason under s 36(2)(a) is a fundamentally different inquiry to the question in s 36(2)(aa). Section 36(2)(a) seeks to define when a protection visa will be granted to a person seeking refuge. Under s 36(2)(aa), the question is whether a person can be returned to a particular State: and the provision is formulated by reference to the consequences of a non-citizen’s removal to a particular State.

86    In reliance upon DQU16, the appellant submitted that in the present case the necessary and foreseeable consequences of removal included consideration of whether, as part of the process that the appellant would be required to undertake, the authorities might become aware of his online comments even if they had not been aware of them up to that point in time.

87    It was submitted that for the appellant to obtain documents to permit his entry to Iran he would be required to write a letter to Iranian authorities as part of a process initiated and conducted by the Commonwealth. The appellant cited ASF17 v Commonwealth of Australia [2024] HCA 19; 418 ALR 382 at [8] and [22], where the process for Iranian citizens to obtain travel documents was described –

8.    Iranian citizens cannot enter Iran from Australia without a travel document issued by Iranian authorities and Iranian authorities have a longstanding policy of not issuing travel documents to involuntary returnees.

…

22.    Following on from that summation and bearing centrally on whether there is a real prospect of removal to Iran becoming practicable in the reasonably foreseeable future, the primary judge found that, if ASF17 cooperated by writing a letter to Iranian authorities and by providing such other information as may be requested by Iranian authorities, the Commonwealth would be able to obtained travel documents for him to travel to Iran…

88    The appellant submitted that the Authority made two findings that required the Authority to consider that the Iranian authorities may become aware of the appellant’s social media activity during the removal process. First, that as at the date of the Authority’s decision, the appellant’s online activities had not come to the attention of the Iranian authorities. Second, that Iran does not permit the involuntary return of Iranians from Australia, and therefore the appellant would be required to return on a voluntary basis. The appellant drew attention to the Authority’s reasons at the end of R [78], where the Authority said that it considered it “possible that this may lead the authorities to infer that the [appellant] has sought asylum while in Australia”.

89    The appellant’s submissions included an example of “backward” reasoning to demonstrate the inquiry which it was submitted the Authority was required to undertake. The appellant submitted that the Authority was required to assume the appellant would be returned to Iran, and then consider what the necessary and foreseeable consequences of that return would be, which would necessarily lead to identification of the fact that the appellant would be required to apply to the Iranian authorities for the necessary travel documents in order to facilitate his voluntary return. The appellant submitted that at that stage, it was “an obvious question” for the Authority to ask itself whether the Iranian authorities might do a Google search of the appellant that would result in attention on the appellant’s social media presence and whether he would face significant harm in that context. As to what significant harm the appellant may face if his activity was detected, the appellant drew attention to the following statement from his 20 April 2021 “Legal Submissions” before the Authority –

We submit that if even one of those posts were to become known to the Iranian authorities, the applicant can be sentenced to a long term of imprisonment or to 74 lashes or both.

90    Finally, the appellant submitted that it was open to the Authority to conclude that there was no real risk that the social media posts would come to the attention of the authorities during the process, or that they would come to their attention, but it had done neither and had erred in failing “to even consider the possibility”.

91    For the following reasons, the appellant’s submissions on ground three must be rejected.

92    The starting point is that the Authority did not accept that the appellant had any adverse profile with the Iranian authorities arising out of what he had said on social media. The Authority comprehensively dealt with the appellant’s social media posts at R [24]–[27] and found that it was unlikely that the appellant, being an individual and not a media professional or activist, would come to the attention of Iranian authorities in circumstances where he had not posted since 2020 and the authorities could not effectively and comprehensively monitor social media. At R [72], the Authority considered that although there were some cases of ordinary individuals coming to the attention of authorities for their posting on social media, the target was very much on journalists, bloggers, and other media professionals. Additionally, at R [75], the Authority stated that –

I am not satisfied that the applicant’s activities in Australia have been monitored by the Iranian authorities, or that he has any adverse profile with the authorities that would or might place him at a real risk of harm if he returned to Iran. I also note Country information which indicates that the authorities in Iran have little interest in prosecuting returning asylum seekers for activities undertaken abroad.

(Emphasis added.)

93    At R [73], the Authority made a finding that it did not accept that an Instagram post had come to the attention of authorities and resulted in the appellant’s family being questioned. Without a statement from the appellant’s brother or father, the Authority could not be satisfied of this claim, and it was not accepted –

The applicant has not provided any evidence in support of this claim, such as a statement from his brother or father in this regard. Given my findings about the applicant’s lack of any adverse profile with the authorities in the decade prior to his departure from Iran, I find it difficult to accept that the authorities were monitoring his social media activities in Australia and happen to have located the one post that he made on Instagram some five years after his arrival in Australia. I do not accept his claim that the claimed post came to the attention of the authorities in Iran causing issues for his family.

94    The Authority’s finding at R [73] as to the unlikelihood of the Iranian authorities being aware of the appellant’s posting prior to his removal informed the Authority’s approach to the question of significant harm.

95    The Authority identified and understood that the appellant could only be returned to Iran on a voluntary basis and either on an Iranian passport or on temporary travel documents. And it was not satisfied in those circumstances that the appellant faced a real chance of persecution. The Authority accepted, at R [77], that the appellant departed Iran using a valid Iranian passport but that he was no longer in possession of one. Then, at R [78], the Authority said –

… Iran does not permit the involuntary return of Iranians from Australia unless they arrived in Australia after 19 March 2018… As the applicant arrived in Australia prior to 19 March 2018, I find that if he were to return to Iran, it would necessarily be on a voluntary basis. DFAT also reports that persons who do not have a valid Iranian passport require temporary travel documents issued by Iranian diplomatic representatives overseas to facilitate their return and that the authorities at the airport will be forewarned about such persons’ return. Given that the applicant will only be returned on a voluntary basis, it may be possible for him to obtain an Iranian passport. However, even if the applicant returns to Iran on temporary travel documents, I am not satisfied he faces a real chance of persecution… I consider it possible that this may lead the authorities to infer that the applicant has sought asylum while in Australia…

(Emphasis added.)

96    Just as the appellant’s claim to face significant harm as a result of his social media posts was said to arise by implication from the material before the Authority, a fair reading of the Authority’s reasons at R [78] suggests that it understood that, in order to either obtain an Iranian passport or obtain temporary travel documents, there was some process that the appellant would be required to undertake which would involve him dealing with Iranian authorities, such as the embassy. This inference as to the Authority’s understanding is supported by its express reference to “travel documents issued by Iranian diplomatic representatives overseas”.

97    Further, there are several textual indicators in the Authority’s reasons suggesting that it did, at least implicitly, connect the process for the appellant returning to Iran, his social media activity, and his associated fears of harm. At R [69] the Authority noted the appellant’s statement that “he had not posted many comments on his own page because he was scared of the impact it could have on his family in Iran, and himself if returned to Iran”. At R [70], again the Authority noted that the appellant had not posted “many political statements on his Facebook account because of the impact on his family and for him if he returned to Iran”. These references demonstrate the Authority’s awareness that the appellant’s social media posting, and the claimed fear of harm, were relevant to its consideration of the return process.

98    At R [79], the Authority also expressly dealt with the themes of the appellant’s existing status with authorities prior to departure, persecution as a form of significant harm and activities conducted overseas. Ultimately, the Authority was satisfied that it was unlikely that a voluntary returnee would face prosecution in circumstances where a returnee is not known to authorities prior to departure, and especially in relation to overseas activities –

Other than the possible questioning on arrival, DFAT advises that voluntary returnees do not attract much interest amongst the large regular international movements of Iranians that they will generally move quickly through airports. International observers have reported that the Iranian authorities pay little attention to returned asylum seekers on their return to Iran and have little interest in prosecuting for activities conducted outside of Iran, including in relation to protection claims. Unless returnees have an existing profile or were the subject of adverse official attention prior to departing Iran, they are unlikely to attract attention from the authorities…

(Emphasis added.)

99    The appellant did not make a claim to the effect that there would be a different level of interest from the Iranian embassy in Australia shown towards individuals in the appellant’s circumstances. Such information was not before the Authority and it would have been speculative for the Authority to have considered this absent any indication to this effect contained in the material before it.

100    Finally, having considered the themes identified above, the Authority ultimately concluded that the appellant did not face a real risk of serious harm if returned to Iran. At R [80], the Authority expressly stated that this conclusion was drawn after consideration of the appellant’s “circumstances as a whole and in light of what [it had] accepted of his claims”.

101    The process of reasoning adopted by the Authority reflects that it sufficiently considered the appellant’s claim to fear harm as a result of his social media activity, including in relation to the process for obtaining travel documents to return to Iran.

Conclusion

102    Because the second ground of appeal has been established, the appeal is allowed. In lieu of the orders below, an order in the nature of certiorari will be made quashing the decision of the Immigration Assessment Authority, and an order in the nature of mandamus will be made remitting the matter for reconsideration by the Administrative Review Tribunal: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), ss 10 to 12.

103    The Minister will be ordered to pay the appellant’s costs of the appeal and of the proceeding below.

Associate:

Dated:    11 December 2025