AXL19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 2152

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 7 January 2019, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Safe Haven Enterprise Visa (the visa).
2. The Applicant requires an Extension of Time to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act).
3. The Court had regard to both Applications on the date of hearing.
4. For the reasons set out below, the Application for an Extension of Time is dismissed. Accordingly, the judicial review Application is dismissed.

1. The applicant is a national of Iran.
2. The applicant arrived in Australia on 16 June 2013 as an unauthorised maritime arrival.
3. On 13 December 2016, the applicant lodged an application for the visa claiming that:

(a) Prior to departing Iran, he worked in a pharmacy owned by "Y", who had powerful family connections in the Iranian government.

(b) In March 2011, Y asked him to "fight" in Syria because the applicant had no criminal history and good family connections, making him a good candidate. The applicant was scared that refusing would be seen as anti-regime and that he would be subsequently imprisoned, tortured or killed.

(c) The Iranian authorities would know he had lived in Australia, had applied for asylum, and would question him on his return and mark him as anti-regime.

(d) He was raised in a devout Islamic family, but he no longer believed in Islam, and he did not want to pretend to be Muslim, as this was against his beliefs.

(e) He explored other religions since arriving in Australia, and these activities might be known to the Iranian authorities. He may therefore be considered an apostate and harmed on that basis. People in the Iranian community were aware of his religious activities in Australia; and

(f) The Iranian authorities will not assist him if forced to return because he will be viewed as being "against Islam". He cannot relocate to another part of Iran because the same laws apply nationwide.

1. On 10 August 2018, the Department invited the applicant to attend an interview on 23 August 2018, which the applicant attended.
2. On 14 September 2018, the delegate refused to grant the applicant the visa.
3. On 21 September 2018, the matter was referred to the Authority.
4. On 11 October 2018, the applicant's representative emailed the Authority, providing legal submissions and a statutory declaration dated that day.
5. On 6 December 2018, the Authority affirmed the delegate's decision.

1. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following matters were held to be relevant as to whether an extension of time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an Order extending time for filing of the Application.
2. The decision to grant an extension of time is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]:

The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]- [27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]- [25] (per Cowdroy J)).

1. To the above, the Court would add that the greater the delay, the more persuasive the explanation for the delay has to be.

1. The Application for judicial review and an Extension of Time was filed on 6 March 2019, some 24 days outside of the 35-day time frame prescribed by s 477(1) of the Act. This is a significant period of time, but not one that is exceptional. As such, there will need to be an adequate explanation for the delay.
2. The applicant relies upon the following matters in relation to the delay:
   1. Not feeling very well (depression)
   2. No enough money
   3. Arrange fill with lawyer (how can help)
3. The above matters that I have just indicated are reproduced as stated in the Application.
4. The first respondent's position is that the factors in this case tend against granting an extension of time. The applicant has not provided a satisfactory explanation for the delay. Where medical issues are raised as a reason for failure to make an application in time, medical evidence is required: WZAVO as litigation guardian for WZAVP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 108 at [40]. The applicant has not provided any evidence supporting the claim that he was unwell or suffering from depression. Nor has he provided any details as to how this prevented him from preparing and filing his application in time.
5. Impecuniosity is not a sufficient explanation for the applicant's delay, particularly in circumstances where the applicant otherwise had legal and administrative support from an "immigration legal service" in his application before the Authority: EEM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 536 at [33]. The applicant has not put forward any evidence of his claimed lack of funds or how this has affected his ability to file the application within time.
6. The first respondent concedes that there is no specific prejudice to the Minister beyond the public interest in the finality of administrative decision-making: Re Commonwealth of Australia & Anor; Ex parte Marks [2000] HCA 67; and by reason of the expiry of the review period and the loss of expectation that the matter was final: WZAUG v Minister for Immigration and Border Protection [2017] FCCA 771 at [33].
7. I do not consider that the explanation given for the failure to lodge the application in time is one that would overwhelm the other issues that have been raised, and this mitigates against an extension of time being granted. I do not consider the 24-day time period to be of such insignificance as to warrant the granting of an extension. I accept that there is no real prejudice to the first respondent, and I consider this to be neutral.
8. The final consideration for the grant of an extension of time is the merits of the proposed application. This requires a consideration of the authority's decision. In so doing, I note the applicant's sole ground of judicial review.

1. The applicant advances one ground of judicial review contained in an Originating Application filed with the Court on 6 March 2019. The sole ground of judicial review is as follows:
   1. Review with lawyer for any problem.
2. The above is not a proper ground of judicial review. There were no particulars. Both the Court and the first respondent are unable to discern the specific issues said to arise from the Authority's decision. As the sole ground of review is not a proper ground of review, that would be enough to dismiss the application.
3. However, as the applicant is unrepresented, the Court is required to consider whether any unarticulated jurisdictional error is present in the authority's decision. In saying that, the Court has taken account of the applicant's oral submissions.

1. In oral submissions, the applicant stated that the information he provided to the Tribunal as evidence was not properly considered. The applicant suggested his lawyer did not provide all documents to the Authority. The Applicant stated that the Authority did not pay proper attention to his family relationships and that he has family members serving in the military in Iran. The applicant also said the Iranian community was not treating him well. The applicant also pointed out that, when he raised issues in relation to his mother, he was talking about his stepmother, not his biological mother.
2. I have taken those matters into account when reviewing the Authority's decision to determine whether any unarticulated jurisdictional error is present.

1. At [4]-[5], the Authority acknowledged that it had received new information from the applicant's representative on 11 October 2018, including a submission to the Authority articulating why the applicant did not agree with the delegate's decision, a statutory declaration from the applicant, and screenshots of the applicant's Facebook posts.
2. At [6]-[8], the Authority found that the applicant's statutory declaration mostly reiterated the information already before the Authority, and where it did provide some further details, it would not affect its consideration of the issues. The Authority therefore found that the statutory declaration failed to satisfy the criteria in s 473DD of the Act.
3. At [9], in relation to the Facebook screenshots, the Authority found that no explanation was given regarding why they were not provided earlier, and the Authority was not satisfied that they could not have been provided earlier. The Authority found that the new information did not materially add to the information before it, the applicant had not identified any exceptional circumstances to justify the new information and that none were apparent. The Authority found it was therefore unable to consider the new information.
4. At [10], the Authority accurately summarised the applicant's protection claims.
5. The Authority accepted the applicant's identity as an Iranian of Persian ethnicity and that he lived in Tehran [11]. The Authority also accepted that the applicant had completed the mandatory military service in Iran in 2003 [12].
6. At [13], the Authority considered the applicant's claims regarding being asked by Y to go to Syria to fight, and that he went to some meetings about going to Syria, but that he did not want to go to Syria. However, the Authority identified that the claims in the SHEV interview were different to the account given in the SHEV application. Namely, differences in the existence, timing and order of events; the content of discussions; and the nature of his relationship with Y [14]. These differences rendered the applicant's account, to the Tribunal's mind, "thoroughly unconvincing" [17].
7. The Authority found that the applicant's account was not supported by country information, which indicated that recruitment to fight in Syria was voluntary and that Iran generally recruited from Basij and Revolutionary Guards. The Authority found, based on the independent country information it considered, that there were no consequences for anyone who changed their mind after initially agreeing to go and fight. The Authority further found that the independent country information did not support the applicant's contention that, as an employee at a pharmacy who was not a member of the Revolutionary Guard or Basij, he was approached and pressured to join the war [18].
8. The Authority considered the letter purporting to be from the Iranian Government, accusing the applicant of failing to present himself for military service, and found that it did not support the applicant's claim that Y tried to get him to fight in Syria. Even if it were the case that there were enquiries by Y, or by a cousin when the applicant left Iran, the Authority was not satisfied that this had any "sinister meaning" [19].
9. At [20], the Authority was not satisfied that the applicant was approached by Y or anyone else to fight in Syria. The Authority accepted that the applicant had never been in trouble with the Iranian authorities and was of good standing in Iran, but did not accept his claims that he had a political profile in Iran. Nor did the Tribunal accept that applicant had been arrested or that he was of any interest to the Iranian authorities when he left Iran.
10. Having regard to the Facebook screenshots, the Authority found that the images were not obviously anti-Iran or about atheism. The Authority found that it is not apparent what messages they convey, but found that whatever messages was conveyed, had very low reach and engagement [25]. Accordingly, the Authority found that the Iranian authorities and his family were either unaware or unconcerned by the applicant's Facebook activities, given he had not claimed to have received any criticism or warnings [28].
11. The Authority accepted that the applicant no longer practised Islam and spent time in Australia exploring other faiths. The Authority also accepted that the applicant's family were practising Muslims, but that they tolerated him relaxing his religious practices since his teen years and particularly since his mother passed away, as she was the one who applied most pressure on him to practise Islam. The Authority found that even if members of the Iranian community were aware of his past involvement with other religions, or that he no longer practised Islam, the Iranian authorities were either unaware or unconcerned about these matters [30].
12. The Authority extensively considered the applicant's claims as a whole and was not satisfied that the applicant faced a real chance of serious harm if he returned to Iran for not fighting in Syria, for his actual or imputed political opinion, for his actual religious opinions, social media activity or for having left Iran and for living in Australia.
13. Accordingly, at [46], the Authority was not satisfied that the applicant had a well-founded fear of persecution within the meaning of s 5J, did not meet the requirements of the "refugee" definition in s 5H(1), and did not meet the criteria in s 36(2)(a) of the Act.
14. The Authority found, having considered the applicant's claims individually and cumulatively, that there was no real risk the applicant would be harmed if he returned to Iran as a result of the protection claims [50]. The Authority further found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of returning to Iran, there was a real risk he would suffer significant harm and therefore found that he did not meet s 36(2)(aa) of the Act [51].
15. Accordingly, the Authority affirmed the decision not to grant the applicant the visa.

1. I have carefully considered the Authority's decision record, noting that the applicant has not identified any particular matter in relation to jurisdictional error. Having perused the decision record, as well as the other documents, I am not satisfied, even at an impressionistic level, that I can identify a jurisdictional error in the decision, noting that the matter relied upon by the applicant is not a proper ground of judicial review.

1. In the circumstances, although the delay is not significant, no adequate explanation has been provided for it. Whilst there is limited prejudice to the first respondent as a result of the delay, there is absolutely no merit in the application based on the sole ground of judicial review. The Court's examination of the decision record discloses no unarticulated jurisdictional error. Accordingly, the extension of time should be refused.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.