CHQ19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1167

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 12 June 2019, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 15 May 2019. The IAA affirmed a decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV) under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. In October 2012, the applicant, a citizen from Iran, arrived in Australia as an unauthorised maritime arrival.
2. On 18 May 2016, the applicant applied for a SHEV, claiming to be at risk of harm if returned to Iran. The application included a statutory declaration of the applicant dated 12 April 2016 in which the applicant set out his claims.
3. Following an interview in January 2019, on 1 April 2019 a delegate of the first respondent refused to grant the applicant a SHEV.
4. On 5 April 2019, the applicant's matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
5. On 15 May 2019, the IAA made a decision affirming the delegate's decision not to grant the applicant a SHEV.

1. The IAA at [4] set out the applicant's claims in summary form. The applicant's principal claim was that, although he was raised in a religious Shia Muslim family, he is now an atheist and, as a result, if required to return to Iran, he fears harm from his family and government forces because he is an atheist.
2. The IAA at [7]-[19] made findings of fact concerning the applicant's claims about events he experienced in Iran.
3. The IAA at [21]-[31] considered whether the applicant had a well-founded fear of persecution if required to return to Iran. The IAA:

(a) at [22] was "not satisfied that the applicant would face a real chance of harm in the reasonably foreseeable future because of his activity on social media if he returns to Iran";

(b) at [24] found that, although the applicant was an atheist, it was "not satisfied that the fact that the applicant is an atheist would bring him to the adverse attention of the authorities if he returned to Iran", and it was "not satisfied that the applicant would face a real chance of harm from the authorities, his family members or other persons for his religious beliefs in the reasonably foreseeable future if he returned to Iran";

(c) at [25] found that, although the applicant's father suffers from mental health and anger management issues, it was "not satisfied that the applicant would face a real chance of harm from his father or from his other family members in the reasonably foreseeable future if he returns to Iran";

(d) at [26] found that, in relation to the applicant's claim that he was arrested and detained for four days in Iran for being outside a girls' school, it was "not satisfied that the applicant would face a real chance of harm if he returns to Iran on account of this incident";

(e) at [27] found that, although the applicant may face some harassment in Iran on account of his dress, it was "not satisfied that there is a real chance of the applicant facing any harm but harassment, or of him experiencing any harassment to an extent that would amount to serious harm within the meaning of the Act"; and

(f) at [30] found that it was "not satisfied that there is a real chance that the applicant will suffer harm in the reasonably foreseeable future if he returns to Iran as a result of being identified as a failed asylum seeker who sought protection in Australia, including when considered in combination with his other circumstances".

1. The IAA at [31] concluded that it was "not satisfied that the applicant has a well-founded fear of persecution".
2. The IAA at [33]-[37] considered whether the applicant satisfied the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act. The IAA concluded at [37] that the applicant did not meet s 36(2)(aa).

Judicial review application and steps up to hearing on 19 June 2025

1. On 12 June 2019, the applicant filed in this Court an application for judicial review of the IAA's decision which contained the following grounds (as written):

1. The IAA failed to properly consider all my claim.

2. The IAA didn't give me a chance to comment on one aspect of my claims.

1. Following a period of inactivity, on 24 October 2024 a registrar made procedural orders including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application, a written submission and any additional evidence.
2. On 7 May 2025, the registry of the Court informed the parties that the matter was listed for hearing on 19 June 2025.
3. On 27 May 2025, the first respondent filed a written submission (RS).
4. The applicant did not file any further materials before the hearing on 19 June 2025.

1. At the hearing before this Court on 19 June 2025, the parties were permitted to appear by video link because the applicant resided in South Australia. The applicant appeared unrepresented, assisted by a Farsi interpreter. Michelle Stone from the Australian Government Solicitor appeared for the first respondent.
2. The applicant had access to a copy of the Court Book, filed and served by the first respondent in August 2019, which contained the IAA's decision and documents before the IAA. At the commencement of the hearing, I directed the applicant's attention to the IAA's decision. I explained that the Court's role was limited to determining whether there was a jurisdictional error, which I described as a significant mistake or error, in the IAA's decision. I explained, with reference to the IAA's decision, the main categories of jurisdictional error. I told the applicant that, to win the case, he must persuade the Court there is a jurisdictional error in the IAA's decision.
3. I offered the applicant a 10-minute break to consider oral submissions he wanted to make. The applicant did not take up this opportunity.
4. Ms Stone tendered a copy of the Court Book (CB).
5. I invited the applicant to make oral closing submissions. He stated that he can prove he is a good person for Australia, he has worked in Australia non-stop since he arrived (I understood as a plumber), he would never break the law in Australia, he loves Australia, he now has a Christian mind, he has already spent 13 years in Australia, he wants to stay in Australia, and he does not want to return to Iran. I attempted, unsuccessfully, to focus the applicant's attention on the IAA's decision and whether he could identify any error in the IAA's reasons for decision.
6. Ms Stone, in her oral submissions, principally relied on the first respondent's written submission.

1. Grounds 1 and 2 lack particulars. A "failure to particularise a ground of review is itself a sufficient basis to dismiss it": NWWJ v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2020] FCAFC 176 at [37].
2. Ground 2, read generously in the applicant's favour, may involve a contention that the IAA unreasonably failed to exercise the power in s 473DC(3) to invite the applicant to give new information to the IAA. I agree with the first respondent's submission at RS [28.5] that "there is nothing in the present case which made it unreasonable for the Authority to proceed to make a decision without inviting the applicant to provide information or, as is alleged in this ground, without inviting the applicant to comment on an aspect of his claims".
3. In relation to the applicant's oral submissions at the hearing on 19 June 2025, while I appreciate that the applicant has worked in Australia since he arrived, he has now lived in Australia for many years, and he appeared to speak reasonably competent English, none of these matters are relevant to the task of identifying a jurisdictional error in the IAA's decision.

1. In light of the serious consequences for the applicant if there is a jurisdictional error in the IAA's decision and the fact he has not obtained legal assistance for his judicial review application, on application of the approach in Gomez v Minister for Immigration & Multicultural Affairs [2002] FCAFC 105; (2002) 190 ALR 543 at [23], "I have scrutinised the papers and the [IAA]'s reasons to see whether there was reviewable error" to the extent of "a mistake [which] clearly appears in the [IAA]'s reasons". No mistake clearly appears in the IAA's reasons for decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Stone sought an order that the applicant pay the first respondent's costs in the sum of $7,000, which was less than the first respondent's solicitor/client costs. This amount is less than the scale amount of $8,371.30. I consider the amount is reasonable. The applicant did not object to the amount. I will make this order.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.