Federal Court of Australia

AQP23 v Minister for Immigration and Citizenship [2026] FCA 1521

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

3.    The name of the first respondent be amended to the Minister for Immigration and Citizenship.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The appellant is a citizen of the Islamic Republic of Iran. She arrived in Australia by boat without a visa in January 2010 and subsequently applied for a protection visa under the Migration Act 1958 (Cth). She claimed to be a stateless Kurdish Faili who feared that she would suffer prejudice and harm if returned to Iran on account of her Kurdish ethnicity and Shia Muslim faith. The respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, granted the appellant a protection visa on the basis of her claims in August 2010. In June 2016, however, a delegate of the Minister cancelled the appellant’s visa pursuant to s 109 of the Migration Act, having found that the appellant was in fact a citizen of Iran and had provided incorrect answers about her citizenship in her protection visa application. The delegate’s decision was affirmed on review by the Administrative Appeals Tribunal.

2    The appellant commenced judicial review proceedings in the Federal Circuit and Family Court of Australia (Circuit Court) claiming that the Tribunal made a “legally unreasonable finding of fact” and failed to give “proper, genuine and realistic consideration” to her case as to why her visa should not be cancelled. Her case in that regard was, in essence, that she would be harmed if she returned to Iran because she would not adhere to the dress code which would require her to wear a hijab. The primary judge in the Circuit Court rejected the appellant’s contentions of error on the part of the Tribunal and dismissed her application: DCK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFAmC2G 105 (J).

3    In her appeal to this Court from the judgment of the primary judge, the appellant essentially reagitated the case she had advanced in the Circuit Court and argued that the primary judge erred in failing to find error on the part of the Tribunal. As explained in the reasons that follow, the primary judge did not err in dismissing the appellant’s judicial review application and her appeal must be dismissed with costs.

4    References to provisions in legislation in these reasons may be taken to be references to the terms of the provisions at the time of the Tribunal’s decision.

RELEVANT FACTS AND PROCEDURAL HISTORY

5    The relevant facts and procedural history are outlined in the judgment of the primary judge: J[3]-[20]. The appellant did not contend that the primary judge’s outline was inaccurate or incomplete. Following is a short summary of the key facts and circumstances relevant to the appellant’s appeal grounds.

The appellant applies for and is granted a protection visa

6    As noted earlier, the appellant arrived in Australia as an “unauthorised maritime arrival” (cf s 5AA(1) of the Migration Act) on 13 January 2010. She applied for a Refugee Status Assessment on 12 February 2010 and received a favourable assessment on 25 March 2010. She applied for a protection visa on 20 August 2010.

7    In both her request for a Refugee Status Assessment and in her subsequent application for a protection visa, she stated that she was a stateless Kurdish Faili and Shia Muslim. She said that her parents were Iraqi citizens who were expelled from Iraq and forced to go to Iran. She was born in and lived in Iran. Her parents had since died. She claimed that she was effectively forced to leave Iran because her “green card” had been cancelled and she suffered discrimination. She maintained that she was not able to return to Iran. She also claimed that she had never lived in Iraq before, but if she was forced to return to there, she feared that she would be killed because of her Kurdish Faili ethnicity and her Shia faith.

8    The Minister granted the appellant a protection visa on the basis of the information she had provided in her visa application.

9    Subsequently, however, in the course of considering a visa application by the appellant’s son, the Minister came into possession of information which indicted that some of the information that the appellant had provided in support of her visa application was false. In particular, the Minister obtained information which indicated that the appellant was not stateless, but was a citizen of Iran, as was her father, husband and son. As will be seen, while the appellant initially disputed that she had provided, or at least knowingly provided, incorrect information in, or in relation to, her visa application, the delegate and the Tribunal found otherwise. The appellant did not contest that finding by the Tribunal in either the proceeding in the court below or in this appeal.

The appellant’s visa is cancelled by the Minister’s delegate for non-compliance

10    The Migration Act includes a regime whereby the Minister is empowered to cancel a visa-holder’s visa if the Minister decides that, among other things, the visa holder gave incorrect answers in their visa application form. The appellant’s grounds of appeal do not raise any issues concerning that cancellation regime, so it need only be briefly described in terms relevant to the appellant’s circumstances.

11    Section 101(b) of the Migration Act relevantly provided that a non-citizen must fill in his or her visa application form in such a way that no incorrect answers are given. Section 99 provided, in summary, that any information that a non-citizen gives to, inter alia, the Minister, an officer, or the Tribunal, in relation to the non-citizen’s visa application is taken to be an answer to a question in the non-citizen’s visa application form for the purposes of s 101(b). Section 100 provided that an answer to a question is incorrect even though the person who provided the answer did not know that it was incorrect.

12    Section 107 of the Migration Act provided, in summary, that if the Minister considers that a visa holder did not comply with s 101(b), the Minister may give the holder a notice which: gives particulars of the possible “non-compliance”; states that the holder may give the Minister a written response to the notice that, where the holder disputes that there was non-compliance, shows that there was no non-compliance and, in case the Minister decides that there was non-compliance, “shows cause why the visa should not be cancelled”; and sets out the effect of ss 108, 109, 111 and 112 of the Migration Act.

13    Section 108 of the Migration Act provided that the Minister was required to consider any response to the s 107 notice given by the visa holder and decide whether there had been non-compliance in the way described in the notice.

14    Section 109 of the Migration Act provided, in substance, that the Minister “may” cancel the visa holder’s visa, but only after: deciding that there had been non-compliance; considering any response given by the visa holder to the s 107 notice, including any response showing cause why the visa should not be cancelled; and “having regard to any prescribed circumstances”; the Minister. The prescribed circumstances relevantly included: the correct information; whether the decision to grant a visa to the visa holder was based on the incorrect information; the circumstances in which non-compliance occurred; the time that has elapsed since the non-compliance; and any contribution made by the holder to the community. In summary, if the Minister determined that there had been non-compliance by the visa holder, the decision to cancel the holder’s visa was discretionary and the Minister was required to consider the holder’s response to the s 107 notice and the prescribed circumstances.

15    Section 111 provided that ss 107, 108 and 109 applied “whether or not the non-compliance was deliberate or inadvertent”.

16    On 22 September 2015, a delegate of the Minister sent the appellant a notice pursuant to s 107 of the Migration Act informing her of the intention to consider the cancellation of her visa pursuant to s 109 of the Migration Act. The notice contained particulars of the possible non-compliance. In short summary, the non-compliance was said to be that the appellant had given answers and information in relation to her protection visa application which the delegate believed to be incorrect. That information included that the appellant was stateless. Information received or obtained by the Minister’s department suggested that the appellant was not stateless, but was either an Iranian citizen by birth, or an Iranian citizen by virtue of her marriage to an Iranian citizen.

17    On 11 October 2015, the appellant, through her migration agent, provided a response to the delegate’s s 107 notice. The response included a detailed explanation concerning the appellant’s provision of the incorrect information. In summary, the appellant did not appear to dispute the information that indicated that her parents and husband were Iranian citizens. Rather, she claimed that she did not know at the time she applied for her protection visa that she was an Iranian citizen. The appellant also provided other information which appeared to be directed to showing cause why her visa should not be cancelled. That information, in summary, included that she had previously fled from her home, removed her hijab and frequented bars and parties where there were men and women. The appellant claimed, in that context, that if she was forced to return to Iran she feared that she would be persecuted or killed:

As a Woman who flees her home, I am accused of brin[g]ing shame upon my family and the clan and I am at risk of being killed by my fanatic Moslem relatives, especially my Uncle. Honor killings are a widespread practice in fanatic Muslim and extremists.

…As a woman who has been threated [sic] to honor killing I cannot seek protection of any community in Iran. I fear to be killed and imprisoned in Iran if I go back there since my uncle and family members threaten me in my last visit in Iran that I have disgraced them and after they kill me no one has to pay off according to Iran law of retaliation.

18    On 20 October 2015, the Minister’s department commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of the appellant’s case engaged Australia’s non-refoulment obligations. The assessing officer considered, among other things, the appellant’s claims that she feared that she would be killed or seriously harmed if she returned to Iran because she was a Faili Kurd and that she had taken off her hijab and shamed her family. The ITOA was completed in April 2016. It concluded that the appellant was not a refugee as she did not have a real chance of being persecuted on account of, inter alia, her race, religion, membership of a particular social group or political opinion. Nor was the assessor satisfied that the appellant had a real chance of being subject to significant harm if returned to Iran.

19    On 20 June 2016, the Minister’s delegate determined that there had been non-compliance and decided to exercise the discretion to cancel the appellant’s visa pursuant to s 109 of the Migration Act based on her non-compliance with s 101(b) of the Act. It is unnecessary to consider in detail the delegate’s reasons for the decision. It suffices to note that the delegate found that the appellant had failed to comply with s 101(b) of the Migration Act because she provided incorrect information in support of her visa application. Having made that finding, the delegate considered each of the prescribed circumstances and whether there were any other factors that militated against the cancellation of the appellant’s visa. In particular, the delegate considered whether the appellant’s circumstances engaged Australia’s protection obligations. The delegate concluded, largely on the basis of the IOTA, that there was no real chance that the appellant would be subject to significant harm or persecution if she returned to Iran and that there were no other compelling reasons why her visa should not be cancelled.

The appellant’s case on review in the Tribunal

20    The appellant applied to the Tribunal for a review of the delegate’s decision. She lodged a submission with the Tribunal in which she claimed that she had a well-founded fear of being persecuted in Iran on account of her membership of a particular social group, that group being “single women” or “women from Iran not willing to observe Islamic clothing”. She also claimed that she would be persecuted on account of her Faili Kurd ethnicity. Her submission included the following statement in relation to what would occur if she returned to Iran:

What will happen if I go back to Iran?

It going to be too many problems for me because my life is in serious danger in Iran firstly because Iran is a Islamic country I have to wear Hijab but I don’t want to do that and I can’t do that I have to completely change myself which I can’t even imagine so I can’t live there because if police or any other government organisation arrest me without Hijab my life will be in danger I won’t be alive anymore

Other Reason I can’t go back because of my uncle and our community they believe that I am Kafar (someone who don’t believe god) and they have to kill me because of their religion if you kill someone who is Kafar all your sin will be remove and you will go to paradise

Other reason which I mention it before and I told them to immigration about that but they don’t care is my Facebook account and what I had post without hijab and working in bar by now I’m sure all my relative saw my pictures and they showed each other and they believe the way how do I live is completely wrong this is why I got too many enemy now and I don’t know how many people saw my picture so I have to run away from everyone.

(Emphasis added.)

21    The appellant’s written submission to the Tribunal did not address or dispute the delegate’s finding that the information she had provided in her visa application to the effect that she was stateless was incorrect.

22    The Tribunal convened a hearing at which the applicant was represented and gave evidence. In her evidence, the appellant maintained that she was stateless and was not an Iranian citizen. She said that she did not know that her father and son were Iranian citizens. As for the appellant’s claim that she would be harmed if she returned to Iran because she was a single woman who refused to wear a hijab, the Tribunal’s Statement of Decision and Reasons dated 7 June 2013 (R) summarised the appellant’s evidence as follows (at R[121]-[124]):

The Tribunal said that it also had to consider that despite receiving a protection visa because she feared serious harm in Iran she had twice returned to Iran and returned unharmed. The Tribunal said that the fact that someone had returned to the country they feared suffering serious harm in could be taken as an indication that the person no longer had a fear of harm in that country. The applicant said that she travelled only because her son was ill. She travelled on a document provided by the department. The Tribunal asked where she stayed while in Tehran. She said that she stayed with her parents. She added that her parents were upset that she had come back to Iran. They had said that her uncle was on a mission and that she should leave if he came back.

The Tribunal asked the applicant if anything had happened to her because she had violated the dress code in Iran. The applicant said that she had enjoyed the freedom to dress as she wished in Australia. She would never submit to the dress code again. The Tribunal asked if she had ever been stopped by the basij because of violating the dress code. She said that had not wanted to but she had to dress as her family wished. She was, however stopped and checked on the street by the basij and the women basij to ensure she conformed to the dress code. She said that she had been arrested and questioned because she was wearing bright colours or had some hair showing.

The Tribunal noted that the dress code applied to everyone in Iran. It said that the country information said that more than 2 million people had been stopped and detained for violation of the code between 2006 and 2012. Since it was a law that applied to everyone punishment for breaking the code was prosecution not persecution. The Tribunal wondered why the applicant thought she would be singled out for attention. The applicant said that while there she followed the dress code. She did not want to but she did. She would not want to have to follow the dress code if she returned.

The applicant said that her trouble came from her family. She was a single woman who had posted pictures from Australia when she had the expectation that she would be able to live here and not have to live in Iran. Those Facebook postings would be used against her if she returned. She would not be left alone by her uncle, cousins and the tribe.

(Emphasis added.)

23    The Tribunal’s reference to “country information” was a reference to a Department of Foreign Affairs and Trade report in respect of Iran dated 21 April 2016 (DFAT report) which included the following information concerning the treatment of women who did not wear the hijab (at [3.78]-[3.80]):

An additional note to Article 638 of the Iranian Penal Code states that all women who appear in public places and roads without wearing an Islamic hijab shall be sentenced to ten days to two months’ imprisonment or a fine of fifty thousand to five hundred rials. As at July 2015, increased debate about the policy of compulsory hijab has coincided with the arrival of the hot summer weather and patrols by the Moral Security Police, including on the country's highways. A study published by the Iranian Students Opinion Centre found that only 25 per cent of Iranians now support the hijab, compared to 75 per cent in 1976 and 36 per cent in 1995. DFAT is aware of at least one outspoken cleric describing on at least two occasions compulsory hijab as bad policy.

There is considerable variation around standards of hijab for women. Age, class and location all impact on what is culturally appropriate. DFAT has observed women in loose fitting headscarves barely covering the head along-side women with a full chador. Credible sources have told DFAT that, while they do not discount the possibility of authorities monitoring hijab, in practice this rarely occurs. These sources also told DFAT that women would rarely be formally punished for contraventions of rules around hijab. Women would be more likely to be escorted to a police station and asked to have a family member bring acceptable hijab after which they could leave without sanction.

DFAT assesses it is difficult to make an overall assessment of the treatment of what are sometimes labelled ‘Westernised’ Iranians. This term is of very limited usefulness in a society where up to one third of the people, middle class and above, mostly in urban areas, aspire to and try to live what could be called a modern lifestyle. Many poorer Iranians also aspire to such a lifestyle but live more traditionally. However, youth in particular can experience some form of low-level harassment from security authorities, such as being subjected to searches, car checks and verbal warnings for dress or behaviour. It is important to note the significance of Iran’s sizeable youth population in this regard. Enforcement can be unpredictable and related to the prevailing political atmosphere of the time.

(Emphasis added.)

24    As will be seen, the appellant’s arguments, both in the court below and on appeal in this Court, relied on the contents of this report and the Tribunal’s findings concerning or based on it. The key passages from the report which were relied on by the Tribunal were set out in full in the Tribunal’s Reasons.

The Tribunal’s decision and reasons

25    On 7 June 2017, the Tribunal affirmed the delegate’s decision.

26    In its Reasons, the Tribunal first considered whether there had been non-compliance by the appellant such as to enliven the discretion to cancel her visa pursuant to s 109 of the Migration Act: R[20]-[74]. The Tribunal found that there had been non-compliance because the applicant had stated, in her protection visa application, that she was stateless whereas she was in fact a citizen of Iran: R[75]-[79]. It is unnecessary to consider the Tribunal’s reasoning in respect of this finding as it was not challenged either in the court below or on appeal.

27    The Tribunal then considered whether the appellant’s visa should be cancelled pursuant to s 109 of the Migration Act. It first considered the prescribed circumstances: R[81]-[112]. The Tribunal’s findings and reasoning in respect of those circumstances were not challenged in the court below or on appeal.

28    The Tribunal next considered whether there were any other factors relevant to the exercise of the discretion to cancel the appellant’s visa. Those factors included what would happen to the appellant is she was returned to Iran: R[114]. As has already been noted, the Tribunal considered, in that context, the appellant’s evidence that she would be harmed because she would not submit to the dress code in Iran and would not wear a hijab: R[121]-[124]. In addressing that evidence, the Tribunal quoted [3.79]-[3.80] of the DFAT report (extracted earlier in these reasons) (R[130]-[133]) and concluded (at R[134]):

The Tribunal accepts that the applicant does not wish to adhere to the dress code in Iran. It accepts the above information that only 25 per cent of Iranians now support the hijab and women would rarely be punished for contraventions of the rules around the hijab.

(Emphasis added.)

29    The Tribunal also considered, but did not accept, the appellant’s other claims, including that she would be harmed on account of her Faili Kurd ethnicity (R[127]-[129]), that she would be harmed by her family (R[135]-[138]) and that she would be persecuted as a returnee from Australia (R[139]). The Tribunal also considered the appellant’s mental health issues (R[141]-[142]). The Tribunal concluded (at R[143]-[144]):

After considering the claims made cumulatively, and taking into account the applicant's circumstances, including her mental health issues, the Tribunal is not satisfied that the applicant faces a real chance of persecution, individually or cumulatively, if she was to return to Iran now or in the reasonably foreseeable future and it is not satisfied that her fear is well-founded.

The Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran there is a real risk that the applicant will suffer significant harm in that she will not be arbitrarily deprived of her life, she will not face the death penalty, she will not suffer torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.

30    The Tribunal’s ultimate conclusion (at R[144]) was that, having regard to “all the relevant circumstances”, the appellant’s visa should be cancelled pursuant to s 109 of the Migration Act due to her non-compliance with s 101(b) of the Act.

JUDICIAL REVIEW AND THE JUDGMENT OF THE PRIMARY JUDGE

31    The appellant’s sole ground of judicial review in the Circuit Court was, in essence, that the Tribunal’s finding in respect of her claim that she would be harmed in Iran because she would not comply with the Iranian dress code was legally unreasonable. She also contended that the Tribunal did not give proper, genuine and realistic consideration to her case in respect of her fear of harm in that regard.

32    The essence of the appellant’s argument, as summarised by the primary judge (at J[26]-[27]) was that the Tribunal only considered whether the harm she would suffer if she refused to wear a hijab would constitute serious or significant harm such as to support an application for a protection visa (“PV harm”). It failed to consider, and essentially treated as irrelevant, her claim that she would suffer harm if she refused to wear a hijab, including that she would be escorted to a police station and only allowed to leave when her family brought her a hijab to wear (“the hijab sanction”), even though that might not constitute harm that would support a claim for a protection visa (“non-PV harm”). The appellant contended that it was legally erroneous to ignore “non-PV” harm and relied on the judgment in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [53].

33    The primary judge rejected the appellant’s contention that the Tribunal did not consider her claim that she would be harmed in Iran on account of her refusal to wear a hijab. His Honour held (at J[32]) that the Tribunal considered that claim and found (at R[134]), based on the parts of the DFAT report concerning the risk of harm to Iranian women who refused to wear a hijab, that “women would rarely be punished for contraventions of the rules around the hijab”. His Honour noted that the Tribunal, having made that finding, went on to consider the appellant’s claim that she would face serious and significant harm and found that she would not: J[32]. It would appear that, in making that finding, his Honour was referring to the Tribunal’s finding at R[143]-[144].

34    The primary judge rejected the appellant’s contention that the Tribunal ignored and treated as irrelevant her claim that she would suffer harm, albeit not serious harm, if she refused to wear a hijab. His Honour reasoned as follows (at J[33]):

It is the case that the Tribunal did not expressly consider whether the hijab sanction constituted non PV harm, that is, harm that was less than the harm the applicant claimed she risked facing in Iran (danger to her life) if she were to refuse to wear the hijab. I am not prepared to infer, however, that the Tribunal did not consider the applicant’s being exposed to the hijab sanction to be a harm to the applicant, or that it considered that such harm was irrelevant to the exercise of the discretion under s 109(1) of the Act to cancel the applicant’s Protection visa. Given the Tribunal set out country information that identified the hijab sanction, the Tribunal was aware that if the applicant returned to Iran and refused to wear the hijab the applicant would be exposed to the risk of the hijab sanction. The more probable inference that is available to be drawn is, and I find, that the Tribunal considered the applicant’s being exposed to the risk of the hijab sanction together with the other matters it considered when determining whether to exercise the discretion in favour of cancelling the applicant’s Protection visa. The Tribunal did not, in terms, address the question whether, assuming the applicant’s exposure to the risk of the hijab sanction was a non PV harm, such harm nevertheless is relevant to the exercise of the power under s 109 of the Act; and the Tribunal did not do so, not because it considered this to be irrelevant, but because the applicant made no claim that was expressed in those terms.

35    The primary judge concluded that the Tribunal’s reasoning in respect of the appellant’s claim that she was suffer harm as a result of her refusal to wear a hijab was distinguishable from the reasoning of the decision-maker in Goundar that was found to be legally erroneous: J[34]-[35]. His Honour accordingly dismissed the appellant’s application with costs.

APPEAL GROUNDS AND SUBMISSIONS

36    The appellant’s notice of appeal is prolix and discursive, though read together with the appellant’s written oral submissions it advanced two grounds of appeal. Those grounds essentially mirrored the arguments advanced on the appellant’s behalf before the primary judge.

37    The first ground of appeal was that the primary judge erred (at J[32]) in rejecting the appellant’s contention that the Tribunal’s finding at R[134] was legally unreasonable and failed to address the case that she had advanced. The appellant contended that the DFAT report referenced in the Tribunal’s reasons did not support its finding that “women would rarely be punished for contraventions of the rules around the hijab” and did not address the case that she had advanced because it did not address the consequences for a woman who, like the appellant, would repeatedly refuse to wear a hijab at all, as opposed to an unsatisfactory hijab. The appellant also submitted that the DFAT report did not address the risk of “informal punishment”.

38    The second ground of appeal was that the primary judge erred (at J[33]-[35]) in rejecting the appellant’s contention that the Tribunal was bound to, but failed to, consider whether the so-called “hijab sanction” amounted to harm that did not amount to so-called “PV harm”. The appellant’s argument, in essence, was that it was not sufficient for the Tribunal to find that the appellant was unlikely to suffer serious harm of the kind that would support the grant of a protection visa. The Tribunal was, so it was submitted, also required to give “active intellectual consideration” to whether the appellant was likely to suffer less serious harm, including (as referred to in the DFAT report) being escorted to a police station and only being allowed to leave when a family member brought an acceptable hijab.

MERITS OF THE APPEAL

39    I am not persuaded that the primary judge erred in rejecting the appellant’s arguments concerning the Tribunal’s finding, in effect, that the appellant did not face a real chance of being persecuted, or a real risk of suffering significant harm, if returned to Iran on account of her claim that she would refuse to comply with Iran’s dress code for women and would not wear a hijab. While the Tribunal’s reasoning in respect of this aspect of the appellant’s case was brief and sparse, it was not legally unreasonable and adequately addressed the case that was in fact advanced by the appellant in the Tribunal. The appellant’s arguments, both before the primary judge and on appeal, are based on an inaccurate account of the case the appellant in fact advanced before the Tribunal and involve an artificial and unduly parsing analysis of the DFAT report upon which the Tribunal relied.

The Tribunal did not make a legally unreasonable finding

40    While perhaps not expressed as clearly as it should have been, the Tribunal’s finding at R[134] was in effect that, while the appellant did not want to adhere to the dress code in Iran, if she did not do so upon her return, it was unlikely that she would be punished. That finding was based on the DFAT report which indicated not only that only 25% of Iranians supported the hijab, but more importantly that sources had informed DFAT that “women would rarely be formally punished for contraventions of rules around hijab” and that they “would be more likely to be escorted to a police station and asked to have a family member bring acceptable hijab after which they could leave without sanction”. The primary judge was correct to find (at J[32]) that the Tribunal’s finding at R[134] was open to it having regard to the content of the DFAT report. It was not legally unreasonable.

41    The appellant’s arguments in support of her first appeal ground were in effect premised on the contention that the relevant passages in the DFAT report only related to women who wore an unsatisfactory hijab, as opposed to no hijab at all. That contention, which appears to have been based on the observation in [3.79] of the DFAT report concerning “women in loose fitting headscarves barely covering the head along-side women with a full chador” and the reference to women who are escorted to the police station only being permitted to leave when a family member arrives with an “acceptable hijab”. I am not persuaded that such a parsing analysis of the DFAT report is warranted. When read in the context of the surrounding sentences and paragraphs, it is open to read the statement that “women would rarely be formally punished for contraventions of rules around hijab” as including not only women who wear unsatisfactory hijab, but also no hijab at all. The appellant’s contention that the statements in the DFAT report concerning the unlikelihood of formal punishment only applied to women who infringed the hijab rules once only finds even less support in the text in the relevant paragraphs of the report, read in context and as a whole.

42    The appellant’s arguments in respect of her first ground of appeal also have to be assessed in the context of the appellant’s evidence before the Tribunal. As the Tribunal observed (at R[121]-[123], extracted earlier in these reasons), the appellant had returned to Iran twice and had on those occasions dressed “as her family wished” and had followed the “dress code”. While the appellant did tell the Tribunal that she would not have to follow the dress code if she returned to Iran, her evidence was not as emphatic as suggested in her submissions both below and in this Court. Her case in the Tribunal was not, as the appellant submitted, that she would refuse to wear a hijab on all occasions, or that her contraventions of the dress code would be “repeated and sustained”.

43    Moreover, while the appellant may not have said, in terms, that she would not submit to the dress code if she was returned to Iran, nor did the Tribunal make any such finding as the appellant contended. Rather, the Tribunal simply found that if she did not comply with the dress code, she was unlikely to be punished.

44    To the extent that the appellant’s submissions concerning legal unreasonableness include the contention that the Tribunal’s reasoning was irrational or illogical, it is well-established that, for an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131]. The appellant has not demonstrated that the Tribunal’s findings or reasoning concerning her claims based on her unwillingness to wear a hijab were infected by any illogicality or irrationality, let alone extreme illogicality or irrationality.

45    I am not persuaded that the Tribunal failed to address any aspect of the appellant’s case in respect of not wearing a hijab. The appellant’s first ground of appeal has not been made out.

The Tribunal did not fail to consider whether the appellant would suffer “non-PV harm”

46    The appellant’s second ground of appeal was based on an entirely artificial and inaccurate portrayal of the case she advanced in the Tribunal. It also mischaracterises the Tribunal’s findings.

47    The appellant’s case as presented in the Tribunal was that if she refused to wear a hijab, as she claimed she would, she feared that she would be killed or that her life would be in danger. She did not, as her arguments both in the court below and in this Court tended to suggest, claim that she feared that she would suffer some form of non-serious sanction, such as being escorted to a police station and only permitted to leave when she was brought an acceptable hijab (the so-called “hijab sanction” or “non-PV harm”). It is not surprising, in those circumstances, that the Tribunal, having effectively found (at R[134]) that the appellant was unlikely to be punished if she failed to wear a hijab, the Tribunal did not go on to expressly make findings about whether the appellant might suffer the “hijab sanction” or “non-PV harm”. The Tribunal did not make express findings in respect of those issues because the appellant did not make any such claims.

48    It is equally not surprising that the Tribunal went on to express its ultimate findings in terms which suggested that the appellant’s claims involved the sort of harm that would support the grant of a protection visa. The appellant’s claims were, for the most part, expressed in such terms. The Tribunal ultimately concluded that it was not satisfied that appellant faced a real chance of persecution (R[143]) or that there was a real risk that the appellant would suffer significant harm (R[144]). Those findings, however, addressed not only the appellant’s claims concerning her refusal to comply with the Iranian dress code or wear a hijab, but also her various other claims, including that she feared that she would be killed by members of her family. It does not follow from the fact that the Tribunal expressed its ultimate findings in those terms that it ignored any lesser claims made by the appellant because it viewed them through the prism of a protection visa application and therefore considered them to be irrelevant.

49    As the High Court explained in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [25], the “[r]equisite level of engagement [by a decision-maker with an applicant’s representations] – the degree of effort needed by a decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”. It could scarcely be said that the Tribunal was required to expressly engage with claims about lesser forms of harm, including the “hijab sanction” and “non-PV harm”, when the appellant never made claims clearly expressed in such terms

50    When the Tribunal’s Reasons are read fairly and without “an eye keenly attuned to the perception of error” (cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at FCR 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at CLR 272), I am not persuaded that it can be concluded that the Tribunal overlooked, or ignored or otherwise failed to consider any clearly articulated claim by the appellant that she might suffer some form of lesser “hijab sanction” or “non-PV harm” if or when she failed to comply with the Iranian dress code. The primary judge did not err in find (at J[33]) that the Tribunal did not overlook or ignore any of the appellant’s claims, but rather did not make any express findings concerning the risk that the appellant might be subject to the “hijab sanction”, or might suffer “non-PV harm”, because the appellant made no such claims.

51    Moreover, as the primary judge held (at J[34]-[35]), the circumstances of this case are also far removed from the circumstances that led to the finding of jurisdictional error in Goundar. In that case, in considering whether exercise the discretion under s 501CA(4)(b)(ii) of the Migration Act to revoke the cancellation of a visa the cancellation of a visa the Minister expressly declined to consider the applicant’s claims that he might suffer harm because the Minister considered or assumed that those claims would be addressed if and when the applicant applied for a protection visa. That assumption was incorrect because the applicant’s claims included claims that might not have satisfied the criteria for a protection visa. In this case, as has already been explained, the Tribunal did not ignore or overlook any of the appellant’s claims, let alone on the express basis that they would be considered in a later protection visa application.

52    It follows that the appellant’s second ground of appeal has not been made out. The Tribunal did not overlook or ignore any claims supposedly made about the risk that she might be subject to a “hijab sanction” or some other form of “non-PV” claim. While the Tribunal may have made no express findings about those issues, that is because the appellant never made any claims expressed in those terms.

CONCLUSION AND DISPOSITION

53    The appellant has not made out her grounds of appeal or otherwise demonstrated that the primary judge erred in dismissing her application for judicial review. The appeal must be dismissed. There is no reason why costs should not follow the event. Accordingly, the appellant should pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    15 October 2026