Federal Court of Australia

GNI18 v Minister for Immigration and Citizenship [2026] FCA 580

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to ‘Minister for Immigration and Citizenship’.

2.    The second respondent’s name be amended to ‘Immigration Assessment Authority’.

3.    The appeal be dismissed.

4.    The appellant pay the first respondent’s costs of the appeal, including any reserved costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

FEUTRILL J:

1    The appellant is a citizen of Iraq who entered Australia on 13 October 2012 as an unauthorised maritime arrival. In September 2018 a delegate of the first respondent (Minister) made a decision to refuse to grant the appellant a protection visa. The delegate’s decision was referred to the Immigration Assessment Authority for review in accordance with Pt 7AA of the Migration Act 1958 (Cth). The Authority made a decision to affirm the delegate’s decision which was set aside, by consent, on an application for judicial review made to the Federal Circuit and Family Court of Australia (Division 2). On remitter the Authority again decided to affirm the delegate’s decision. The primary judge dismissed an application for judicial review of the Authority’s second affirmation decision made to the Federal Circuit Court.

2    Section 36 of the Act provided that an applicant for a protection visa must satisfy the Minister of certain criteria. These criteria included that either the applicant was a person in respect of whom Australia has protection obligations because he is a refugee (refugee protection criteria) or because there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, there is a real risk that he will suffer significant harm (complementary protection criteria): s 36(2)(a), s 36(2)(aa). Relevantly, for the purposes of the refugee protection criteria, a person is a refugee if the person is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country: s 5H(1)(a). A person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a). The persecution must involve serious harm: s 5J(4)(b), s 5J(5). Section 91WA provided, relevantly, that the Minister must refuse to grant a protection visa to an applicant if the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship unless the Minister is satisfied that the applicant has a reasonable explanation for providing the bogus document and provides documentary evidence of his identity, nationality or citizenship or takes reasonable steps to provide such evidence: s 91WA(1)(a), s 91WA(2).

3    Amongst other things, at the time the appellant had applied for a protection visa he had claimed that he was stateless, had been living in Iran and feared harm if returned to Iran. The appellant had provided a document in support of his application that he later admitted to the delegate was a false document (bogus document) and provided other evidence to the effect that he was a citizen of Iraq. Ultimately, he claimed that he satisfied the refugee protection criteria and complementary protection criteria because of risks of harm he faced in Iran and Iraq. As to Iraq, he claimed that Faili Kurds are Shia Muslims and, as such, he would be the target of harm from Sunni Muslim extremist groups. (The appellant characterised that as the ‘harm from Sunnis claim’.) The appellant also claimed that he was a non-practicing Muslim and, as such, he would also face discrimination from Shia Muslims. (The appellant characterised that as the ‘harm from Shia claim’.) The appellant claimed that his ethnic origin as a Faili Kurd would also expose him to societal and official discrimination in Iraq. (The appellant characterised that as the ‘harm from official discrimination claim’.) Additionally, the appellant claimed that he and his father were communists. The appellant claimed that there was a real chance that if he returned to Iraq he would face persecution or significant harm particularly when considering the cumulative effect of the harm from Sunnis claim, harm from Shia claim, harm from official discrimination claim and his family ties to the communist party.

4    The Authority was not satisfied that the appellant met either the refugee protection criteria or complementary protection criteria: A [56], [63]. In substance, the Authority was not satisfied that the appellant was a person who faced a serious or significant risk of harm if he returned to Iraq. The Authority was also of the view that the Minister was required to refuse to grant the appellant a visa under s 91WA because he provided a bogus document as evidence of his identity or nationality and the Authority was not satisfied that the appellant had a reasonable explanation for providing that document: A [67]-[75].

5    In the proceeding before the primary judge the appellant challenged the applicability of s 91WA and the Authority’s reliance on that provision and also contended that the Authority had not considered the harm from Sunnis or harm from official discrimination claims. Further, he asserted that if the Authority had considered the relevant claims there was a realistic possibility that the Authority could have decided that he had a reasonable explanation for providing the bogus document because his explanation for providing that document was that he was ‘scared to give the real reasons why he came to Australia’ and, therefore, that the Minister was not obliged to refuse to grant a protection visa under s 91WA of the Act. The primary judge concluded that the Authority had not made a jurisdictional error applying s 91WA and, as a consequence, due to a concession the appellant had made in his oral submissions, it was not necessary to decide if the Authority had failed to consider the relevant claims: PJ [66]-[74].

6    The appellant does not challenge the primary judge’s conclusion that the Authority made no jurisdictional error applying s 91WA of the Act, but he contends the primary judge was in error for not considering his contentions that the Authority failed to consider the harm from Sunnis claim and harm from official discrimination claim. The appellant’s contentions in the appeal give rise to three issues for determination.

(1)    Was the primary judge in error for deciding that it was not necessary to deal with the contentions that the Authority failed to consider the harm from Sunni claim and (or) the harm from official discrimination claim?

(2)    If so, was there a failure to consider the harm from Sunni claim and (or) the harm from official discrimination claim?

(3)    If so, was the Authority’s failure to consider either or both claims material; that is, if either or both claims had been considered could the Authority’s decision under s 91WA realistically have been different?

Was the primary judge in error for not determining all grounds of review?

7    It is clear from the appellant’s written and oral submissions before the primary judge that he contended that if the Authority had not made the asserted errors of failing to consider the harm from Sunnis claim and harm from official discrimination claim it could have come to a different view under s 91WA(2)(a) as to whether the appellant had a ‘reasonable explanation’ for providing the bogus document, namely his very fear of harm. Although counsel for the appellant conceded that if the primary judge concluded that the Authority made no jurisdictional error in its application of s 91WA it would ‘cut across everything else’, in context, that was not a concession that the Authority would not have made a jurisdictional error in its application of s 91WA if it had failed to consider claims about fear of harm that had a direct bearing on his explanation for providing the bogus document and, if considered, could have resulted in a different conclusion about the reasonableness of the appellant’s explanation.

8    The appellant’s written and oral submissions before the primary judge referred to four ‘self-sufficient’ reasons that the Authority’s conclusion on s 91WA was erroneous. Counsel for the appellant said in oral submissions that the ‘first’ was that if the Authority had not made any of the errors in the other grounds of review then ‘it could have found that the [appellant] would be subject to harm in Iraq, and it could have found that the fear of such harm constituted a reasonable explanation for providing the bogus document in question’.

9    The primary judge said that ‘during oral submissions, Counsel for the [appellant] conceded that in order to be successful overall, the [appellant] needed to succeed in relation to a claim [of] jurisdictional error as regards to s 91WA and then succeed in either the first or second ground. If the [appellant] was unsuccessful in relation to the contention as regards s 91WA, then it was not necessary for the Court to consider grounds one and two’: PJ [66]. With respect to the primary judge, in my view, that is not an accurate summary of the nature or effect of the ‘concession’ that counsel for the appellant made. Further, even if the concession were made, the primary judge was nonetheless required to deal with the contention the appellant advanced that the asserted other errors affected the Authority’s consideration of s 91WA. The primary judge’s failure to do so was an error of law and a failure to accord the appellant procedural fairness.

If the Authority made the asserted errors could its consideration of s 91WA realistically have been different?

10    It is convenient to address the third question next because it is only necessary to consider if the Authority failed to consider the harm from Sunnis and harm from official discrimination claims if any such failure was material. If not, any error of the Authority would not be jurisdictional and the primary judge’s failure to consider whether the Authority had made either or both of the asserted errors would not affect the outcome of the proceeding before the primary judge.

Applicable legal principles

11    There was no evident dispute between the appellant and the Minister that, subject to materiality, if the Authority failed to respond to ‘a substantial, clearly articulated argument relying upon established facts’ such a failure could amount to a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24]-[32] (Gummow and Callinan JJ), [95] (Hayne J); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [13] (Bell, Gageler and Keane JJ), [105] (Nettle and Gordon JJ).

12    As to materiality, the High Court restated and clarified the applicable principles in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321. A statute which contains an express or implied condition of a conferral of decision-making authority is not always interpreted as denying legal force and effect to every decision that might be made in breach of that condition. In some cases, where an error is established, it will be jurisdictional irrespective of any effect the error might or might not have had on the decision that was made in fact (e.g., bias), or it will be jurisdictional because the potential for an effect is inherent in the nature of the error (e.g., unreasonableness in the final result). In most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because generally a statute which contains an express or implied condition to be observed in decision-making is to be interpreted as incorporating a threshold of ‘materiality’ in the event of non-compliance. The question in these cases is whether the decision could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: LPDT at [2]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The majority concluded:

16    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).

13    Materiality involves consideration of ‘the basal factual question of how the decision that was in fact made was in fact made’. That question is determined by proof of historical facts on the balance of probabilities. It is then necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with ‘as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined’: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [32] (Kiefel CJ, Keane and Gleeson JJ), citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

14    The standard ‘reasonable conjecture’ is undemanding: Nathanson at [33]. Thus, there will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. Likewise, if submissions or evidence presented is not read, identified, understood and evaluated. The same may be said of a decision-maker that has failed to take into account a mandatory relevant consideration. There would generally be a realistic possibility of a different outcome unless the consideration was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30] (Kiefel CJ, Gageler and Keane JJ) citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J). The same principles apply where a consideration that a decision-maker was bound to disregard has been taken into account by that decision-maker.

Section 91WA

15    Section 91WA of the Act provided:

91WA    Providing bogus documents or destroying identity documents

(1)    The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

(b)    the Minister is satisfied that the applicant:

(i)    has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)    has caused such documentary evidence to be destroyed or disposed of.

(2)    Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)    either:

(i)    provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)    has taken reasonable steps to provide such evidence.

(3)    For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

Section 5(1) of the Act defined ‘bogus document’ to mean:

… a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

16    In the Authority’s reasons, after addressing the appellant’s claims for grant of a protection visa under s 36(2) of the Act and concluding that the Authority was not satisfied that the appellant met either the refugee protection criteria or complementary protection criteria, due to certain findings it had made relating to the appellant’s provision of false or fraudulent identity documents in support of his claims, the Authority considered an issue arose as to whether the grant of a visa was prevented by s 91WA: A [64]. It found that a document described as an ‘Identity Card for Foreign Citizens’ issued in May 2011 by the General Office of Foreign Citizens and Immigrants, a part of the Iranian Ministry of Interior the appellant had provided during the process of his application for a protection visa was either counterfeit or was altered by a person who does not have authority to do so, and as such is a bogus document’: A [67]-[68]. Although the Authority appeared to accept that the appellant had subsequently provided a genuine Identity Card for Foreign Citizens, it was not satisfied that the appellant had provided a ‘reasonable explanation’ for initially producing the bogus document: A [67], [69]-[74]. Amongst other things, the Authority rejected the appellant’s explanation for providing the false document described in the delegate’s decision record to the effect that the appellant was scared to give the real reason why he came to Australia and provided documents to make him appear to be a stateless Faili Kurd: A [71].

17    The appellant contends that the Authority rejected the appellant’s explanation described in the delegate’s decision record because it was not satisfied that the appellant had a well-founded fear of persecution or that there were substantial grounds for believing that there is a real risk that he will face substantial harm if returned to Iraq. That is, the explanation was rejected because the Authority was not satisfied that the appellant was genuinely ‘scared’. Further, if the Authority had not made one or both of the asserted errors (failing to consider the harm from Sunnis claim and (or) harm from official discrimination claim), it could have concluded that the appellant had a genuine reason to be scared to give the real reason why he came to Australia.

18    In the Authority’s reasons it said that it was ‘not satisfied the [appellant] ever offered the explanation that he provided the [bogus] document because he was scared to give the real reason why he came to Australia’ or to ‘make him appear to be a stateless Faili Kurd’: A [71]. The Minister contends that statement of the Authority should be taken at face value; namely, it is a finding of fact to the effect that the appellant had not given the explanation for providing the bogus document to which reference is made in the delegate’s decision record. Therefore, the Authority’s decision could not realistically have been different because, in substance, the appellant had not given an explanation for providing the false documents that could have been affected by an evaluation of the appellant’s fear of harm.

19    There are two questions that emerge from the parties’ competing contentions and submissions concerning materiality. The first is whether the appellant gave the explanation for providing the false document described in the delegate’s decision record. The second is whether an integer of that explanation involved a fear of harm from Sunnis in Iraq or fear of harm from official discrimination in Iraq. If either of those questions is answered in the negative, the appeal cannot succeed because any failure to consider the harm from Sunnis or harm from official discrimination claims could not have realistically affected the Authority’s conclusion that the appellant’s explanation was not reasonable for the purposes of s 91WA of the Act.

The explanation for providing the false document given to the delegate

20    At the relevant time, s 473CA of the Act provided that the Minister was required to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision was made. Section 473CB(1) provided that the Secretary was required to give the Authority certain information. That information included:

(a)    a statement that set out the findings of fact made by the person who made the decision, referring to the evidence on which those findings were based and the reasons for the decision;

(b)    material provided by the referred applicant to the person who made the decision before the decision was made; and

(c)    any other material in the Secretary’s possession or control considered (at the time the decision was referred to the Authority) to be relevant to the review.

21    The Authority was required to review a fast track reviewable decision referred to it under s 473CA: s 473CC(1). In general, the Authority was required to do so by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant (review material): s 473DB(1). The Authority could in certain circumstances obtain documents or information that were not before the Minister when the decision was made under s 65 which the Authority considered may be relevant (new information): ss 473DC-473DF.

22    The Authority’s statement of reasons summarise the review material and new information it considered: A [4]-[17]. The Authority refers to a SHEV interview (Safe Haven Enterprise Visa interview) on 4 July 2018: A [12]. The Authority describes information and statements the appellant made at the SHEV interview in a number of places in its reasons: e.g., A [23]-[27], [70]. The Authority also makes reference to a written SHEV application and post-SHEV interview submission: A [21], [28], [70]. The SHEV application and post-SHEV interview submission and many other documents were included in the appeal book and the evidence before the primary judge. There is no transcript or audio recording of the SHEV interview in evidence. Therefore, the only record before this Court of the SHEV interview is the Authority’s description of that interview and (or) the delegate’s description of that interview in the delegate’s decision record.

23    In the appellant’s SHEV application he claimed that his parents were removed from Iraq to Iran because they were Shia Muslims, he was born in Iran and had no Iranian or Iraqi identity documents. He claimed protection in Australia as a stateless person and feared returning to Iran due to a lack of citizenship and because he had left Iran on a false passport: A [21].

24    In the delegate’s decision record, the appellant’s claims for protection, including those raised at the SHEV interview, were summarised as follows:

•    The [appellant] claims he is an undocumented Stateless Faili Kurd born in Iran.

•    The [appellant] claims he was not able to apply for work, not receive social benefits, education, healthcare or any other Government funded service due to his status as an undocumented Stateless Faili Kurd.

•    The [appellant] claims he would face harm for fleeing Iran on a fake passport.

•    During his SHEV interview the [appellant] claimed his father was a communist and were forced to flee Iraq.

25    As part of the materials provided by the Secretary, the Authority’s reasons refer to a six-page written submission dated 26 November 2018 and a two-and-a-half page written submission dated 22 April 2024 made to the Authority after the delegate’s decision: A [5]-[6]. The Authority said that the 2024 submission summarises the appellant’s claims for protection based on a fear of persecution or significant harm if returned to Iraq due to his ethnicity (Faili Kurd), religion (non-Muslim) and his father’s ties to the Iraqi Communist Party. Notwithstanding that the appellant had initially claimed that he feared harm from Iran as his former place of habitual residence where he was stateless, because he later admitted that he was not stateless but a citizen of Iraq and his representative submitted ‘towards the end of the SHEV interview’ and in the post-SHEV interview submission that the appellant feared harm in both Iran and Iraq, the Authority considered the claims in the 2024 submission were ‘broadly before the delegate’ and were not ‘new information’ for the purposes of a Pt 7AA review: A [12].

26    The Authority records that during the SHEV interview the appellant maintained his statelessness, his residence in Iran since birth, and use of a fake passport to leave Iran. The appellant also presented the delegate an ‘Identity Card for Foreign Citizens’ issued in May 2011 by the General Office of Foreign Citizens and Immigrants as part of Iran’s Ministry of Interior. According to that document, the appellant was born on 29 August 1995 (or 29 September 1995) and indicated that he resided in Shush, Khuzestan Province, Iran: A [21], [23]. The Authority records that ‘towards the end of the SHEV interview’, after the delegate presented adverse information to the appellant for his comment, he changed key aspects of his evidence: A [24].

27    The adverse information was that the appellant’s brother had claimed in his application for a protection visa (the brother’s application) that the appellant had been born in 1980 and all members of his family were born and resided in Iraq and were Iraqi citizens. After a break and consultation with his representative, the appellant then admitted that the identity card was false and that he was a citizen of Iraq. The appellant initially maintained that his father migrated from Iraq to Iran, but the reason previously given (because his father was a Shia Muslim) was incorrect and he said that the real reason for migrating to Iran was because his father was a communist. He said communism was a crime in Iran, so his father pretended to be a Muslim. After further questioning, the appellant’s claim that his father had migrated to Iraq was undermined by inconsistent information his brother had given in his brother’s protection visa application. In response to further questions of the delegate, the appellant then said the location where his family had lived was close to the border and that there was not much difference between Iraq and Iran: A [26]-[27].

28    The Authority records that:

70.    … the delegate cautioned the [appellant] that presenting fraudulent documents could result in him being excluded as a fast-track [appellant] under Section 91WA of the Act. He urged the [appellant] and his representative to address, in a written submission, the reason(s) for providing the fraudulent document. During oral submissions, the representative indicated that the document was provided after the [appellant] had received “bad guidance”. The representative also indicated that these matters would be further elaborated on in a submission. However, the post-SHEV interview submission failed to include any reasons or explanation in relation to this matter.

(Emphasis original.)

29    Earlier, the Authority also made the following observation:

29.    Apart from claiming he had received “bad guidance”, the [appellant] provided no explanation to the Minister or to the [Authority] about why he falsified his date of birth, or why he waited until the end of the SHEV interview to mention his father’s links or his own beliefs about communism for the first time. I note that earlier in the SHEV interview the [appellant] was specifically asked if he had “ever been political”, to which he responded “No”.

(Emphasis original.)

30    In the post-SHEV interview submission the appellant claimed that his family was exiled to Iran in 1970 by Saddam Hussein, they returned in 1975 when granted absolution, and then they were exiled again in 1980. The family lived in a camp for a while before moving to Shush. The appellant’s father strongly believed in communism which if known to the Iraqi government during the time of Saddam Hussein could lead to a death sentence. The appellant shared his father’s communist beliefs. They always declared that they were Muslims to be safe: A [28]. The submission concluded with a statement that: ‘[The appellant] cannot practice and freely express his beliefs either in Iran or Iraq as he believes his life would be in danger in those countries due to his beliefs.’ In context, the references to ‘beliefs’ must be understood as references to ‘communist beliefs’.

31    The Authority found the appellant’s claims about communist beliefs ‘unconvincing’ and doubted the genuineness of the claims. The Authority was not satisfied that the appellant’s father had links to communism in Iraq or that the appellant genuinely holds communist views: A [38]-[39].

32    The delegate’s decision record also includes a summary and description of the SHEV interview, the appellant’s production of the identity document and admission that it was false and that he was not stateless, but an Iraqi citizen. The delegate’s decision record indicates, contrary to the Authority’s description of the SHEV interview and post-SHEV submission, that the appellant gave an explanation for providing false documents as follows.

…

The [appellant] explained that he was scared to give the real reasons why he came to Australia and provided documents to make him appear to be a stateless Faili Kurd. The [appellant] claimed he was scared to tell the department that the reason his family left Iraq being that his father [is] a communist and as it is illegal in Iran. The [appellant] said he was afraid that if he told his story that the Iranian authorities would find out and his family would be in danger.

I am willing to accept the [appellant’s] explanation for providing fraudulent documents. I note that the [documents] in question have only adjusted the [appellant’s] date of birth and all other biometrics appear consistent with the [appellant’s] claimed identity.

…

(Emphasis added.)

33    As to this statement in the delegate’s decision record, after concluding that the identity document the appellant provided to the delegate during the SHEV interview was ‘either counterfeit or was altered by a person who does not have authority to do so, and as such is a bogus document’ and recording that the appellant had not provided an explanation for producing a false document other than the appellant had received ‘bad guidance’ (A [67]-[70]), the Authority said:

71.    In the decision, the delegate states that the [appellant] ‘explained that he was scared to give the real reasons why he came to Australia and provided documents to make him appear to be a stateless Faili Kurd’. Noting that the documents in question (including the vaccination certificate with a different date of birth, which the [appellant] also indicated was fraudulent) only ‘adjusted’ the date of birth, the delegate accepted the [appellant’s] explanation. However, I am not satisfied the [appellant] ever offered the explanation that he provided the document because he was ‘scared to give the real reasons why he came to Australia’ or to ‘make him appear to be a stateless Faili Kurd’. Even after admitting the document was not genuine, that he was not stateless, and his Iraqi citizenship, he maintained his assertion that he resided in Iran and had genuinely been issued the Identity Card for Foreign Citizens (or white/amayesh card). As noted in the DFAT report referenced by the delegate, amayesh cards are not exclusively designated for Faili Kurds.

72.    The explanation that the [appellant] received bad guidance lacks specificity and, for this reason, I am not satisfied it is a reasonable explanation for providing the bogus document. As noted above, the [appellant] later provided what he claimed to be a genuine document, and the only apparent difference between that document and the one initially provided is the date of birth. One could infer from this that the [appellant] was solely attempting to misrepresent his age. Although this has not been explicitly claimed, I am not satisfied the [appellant] has provided a reasonable explanation if this was the case. Additionally, I note that in his written SHEV application (Part B, Question 3; Part C, Question 14), the [appellant] claimed that he was born in 1993. Given the altered date, which suggests he was born in 1995, it does not appear the document was provided to misrepresent his age. Further, as discussed earlier, the [appellant’s] evidence during the SHEV interview indicated he believed the card was evidence that he was “born in Iran”.

73.    I find that the provision of the bogus document by the [appellant] in this case was intended to frustrate the delegate’s ability to establish the [appellant’s] nationality, which was a core element of the [appellant’s] (false) identity. In the circumstances, I am not satisfied that the [appellant] has provided a reasonable (or genuine) explanation for why he provided a bogus Identity Card for Foreign Citizens as evidence of his identity. Overall, I consider that he provided the bogus document to conceal his Iraqi nationality, and to support a claim that he faced a real chance of persecution as a stateless minority in Iran.

74.    Although the [appellant] states he has now produced genuine documentary evidence of his identity, having taken into account all the circumstances, I am not satisfied the [appellant] has a reasonable explanation for producing a bogus document. I am not satisfied s.91WA(2)(a) of the Act has been met.

75.    As such, I am satisfied that s.91WA applies to the [appellant]. Therefore, the grant of the visa is prevented by that section and under s.65 it must be refused.

(Emphasis original.)

34    In the context of the Authority’s earlier description of the SHEV interview and the absence of any explanation for producing a false document, the Authority’s statement (A [70]) to the effect that it was not satisfied that the appellant ever offered the explanation described in the delegate’s decision record must be understood as meaning the Authority was not satisfied the appellant had expressly given that reason for providing the false document. That meaning is reinforced by the Authority addressing the express reason, that the appellant was given ‘bad guidance’, in its consideration of the reason the appellant had given in the following paragraph: A [69], [71].

35    At most, the Authority’s reasons (A [70]) may be read as providing, in substance, an explanation of the reasons that the Authority was not satisfied that the explanation described in the delegate’s decision record was implicit or inferred from the appellant changing his evidence and claiming fear of harm in connection with his and his father’s links to communism. That is, the appellant produced a further identity card, which the delegate accepted as genuine, and the only difference between that document and the false document was the appellant’s date of birth. A fear of harm in Iran or Iraq due to communist beliefs does not provide a logical or rational reason for providing an Iranian identity document with a false date of birth when the same document, with the correct date of birth, continued to be relied upon to support his claim to reside in Iran.

36    It follows that the Authority made a finding of fact that the appellant provided no explanation for the provision of the false identity document other than he had received ‘bad guidance’. That finding or conclusion is not challenged on any ground of judicial review that was raised before the primary judge or in the appeal. Otherwise, the Authority was not satisfied that ‘bad guidance’ was a reasonable explanation. In short, any failure to consider the harm from Sunnis or harm from official discrimination claims could not have made any difference to the Authority’s decision on s 91WA of the Act because the Authority did not consider the appellant had provided the explanation described in the delegate’s decision record.

Integers of the explanation described in the delegate’s decision record

37    In any event, even if the appellant had provided the explanation recorded in the delegate’s decision record, neither the harm from Sunnis nor harm from official discrimination claims were integers of the ‘fear’ the delegate attributed to the appellant for providing the false identity document. The relevant fear and explanation the delegate describes was fear arising from the claim that the appellant’s father was a communist. That claim was manifestly considered and rejected by the Authority. Therefore, a failure to consider the harm from Sunnis or harm from official discrimination claims could not have affected the Authority’s consideration of the explanation described in the delegate’s decision record.

Was there a failure to consider the harm from Sunnis and harm from official discrimination claims?

38    Having regard to the conclusions reached on the other issues, it is unnecessary to consider if the Authority failed to consider the harm from Sunnis and harm from official discrimination claims.

Disposition

39    For the foregoing reasons the appeal must be dismissed. The appellant should pay the Minister’s costs of the appeal.

Associate:

Dated:    12 May 2026