CTC25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1624

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) ("the Act") in respect of a decision of a delegate on 31 January 2023, declining to grant the applicant an offshore humanitarian visa. That decision is a non-reviewable decision and accordingly, falls within this Court's original jurisdiction in respect of the potential for constitutional relief. The application that has been filed complies with the requirements of s 477 of the Act in relation to seeking an extension of time and proffers an explanation that the applicant did not become aware of the decision by reason of being unable to access emails until 2025. The applicant, in his originating application, also identifies three grounds of alleged error;

1.Error of Law - Failure to Apply the Correct Legal Test for Humanitarian Protection

a. The decision-maker failed to properly assess the compelling humanitarian circumstances faced by the applicant in Pakistan, contrary to the criteria under the Migration Act 1958 (Cth). b. The refusal letter indicates that the applicant did not meet the 'compelling reasons' requirement; however, it did not adequately consider the risk of persecution, threats to life, and religious discrimination. c. The failure to apply a proper human rights-based analysis amounts to a jurisdictional error.

2. Procedural Unfairness - Failure to Consider Relevant Evidence

a. The visa officer failed to give adequate weight to the supporting documentation, including:

o Court guardianship order.

o Evidence of threats, persecution, and targeted violence against the applicant.

o Evidence that blasphemy allegations in Pakistan can lead to life imprisonment or death.

b. The failure to take this evidence into account amounts to a denial of procedural fairness.

3 Irrationality and Unreasonableness

1. The decision to refuse the visa was unreasonable given the extreme risks faced by the applicant, including threats to life due to accusations of religious conversion. b. The decision-maker did not properly balance the factors under subclauses 200.222(1), 201.222(1), 202.222(2), 203.222(1), and 204.224(1), leading to an arbitrary refusal.

1. These proceedings were commenced on 11 March 2025 for an extension of time. At the commencement of the hearing, the Court heard an application by the applicant for an adjournment, together with an affidavit by the applicant explaining why he wanted an adjournment. The adjournment was opposed by the Minister.
2. The application for an adjournment was provided on 30 September 2025, well after the date on which this matter had been fixed for hearing before this Court. The applicant, in substance, wanted to attend in person in Australia when he was outside the jurisdiction. Such an order is not a kind of one which this Court would make. The applicant wanted an opportunity to obtain representation. If the applicant was able to do so, he should have done so. The applicant is not entitled to representation by order of this Court. To the extent that the applicant considered his matter is of considerable importance and is one in respect of which he wanted further time to prepare it, the applicant filed his application on 11 March 2023. The decision was now more than two years old. The applicant has had ample time to prepare in respect of his request for an extension of time. The Court was not satisfied an adjournment was warranted in the interest of the administration of justice, and it is for these reasons the adjournment was refused.
3. The Court then explained to the applicant the nature of the hearing under s 477(2) of the Act and the applicant confirmed he understood what was said. The applicant put submissions in relation to the hardship and circumstances he was facing as a person of Christian faith in Pakistan and the difficulties he had, he contends, in relation to accessing emails and the dangers presented for him in relation to the practising of his Christian faith.
4. The applicant's explanation that he did not ascertain the outcome of his application, as alleged in the originating application, until 5 February 2025 is unconvincing and lacks credibility. It is inconceivable that the applicant, facing the fears that he has identified, would wait for two years after his application was determined to try and ascertain the outcome. While the Court accepts there may be difficulties, at times, accessing emails, the applicant's evidence in relation to the delay is entirely unsatisfactory. The delay in this case is extreme. It is in excess of two years. The Court did admit the applicant's affidavit into evidence, subject to relevance. The applicant annexed material that was not in evidence before the delegate and other than the extent to which it might explain his delay, the material is not admissible to establish an arguable case of relevant error. The Court does not accept the fresh evidence, insofar as it goes to the merits of the application.
5. The affidavit does not provide any material that satisfactorily explains the inordinate delay in the present case. While the Court accepts, as a matter of fact, that the applicant may be suffering considerable danger because of the practise of his faith, this Court cannot decide applications on a subjective approach. The Court must be satisfied that the statutory criteria is met.
6. Section 477 of the Act relevantly provides:

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

1. The delay in the present case is of a kind which is so inordinate that on that ground alone, the Court is not satisfied it is necessary in the interests of the administration of justice to make an order under section 477(2), extending time.
2. Turning to the merits of the application, it is apparent from the delegate's decision that the delegate identified the mandatory criteria that had to be taken into account. It is apparent that the delegate accepted that the applicant claimed a fear of persecution or discrimination in his home country of Pakistan.
3. The delegate identified that the statutory provisions require that there be compelling reasons for giving special consideration to granting the applicant a visa, and that the delegate was required to have regard to the capacity of the Australian community, and that Australia has limited capacity for humanitarian resettlement and cannot resettle all people who apply for a refugee and humanitarian visa.
4. It was upon weighing those factors that the delegate was not satisfied there are compelling reasons for giving special consideration in granting the primary applicant this visa. The delegate found the applicant did not meet the mandatory criteria and referable to the applicant and refused the grant of the visa.
5. The alleged grounds of error, at an impressionistic level, lack sufficient merit to warrant an extension of time. Ground one is a high-level assertion of an error of law, and on the face of the delegate's reasons, he correctly identified the relevant law, at an impressionistic level.
6. Ground two asserts a denial of procedural fairness on the basis of inadequate weight to material matters. It was a matter for the delegate what weight to give the material that was before the delegate, and there is nothing to identify a relevant denial of procedural fairness on the material, at an impressionistic level, before this Court.
7. In relation to irrationality, unreasonableness, at an impressionistic level, the delegate's decision cannot be said to lack an evident and intelligible justification, having considered the primary criteria, and does not reflect, at an impressionistic level, a reasonable argument, being available of irrationality or unreasonableness. In these circumstances, the Court is of the view the inordinate delay, together with the lack of merit, at an impressionistic level, means that the Court is not satisfied it is necessary in the interest of the administration of justice to make an order under section 477(2) of the Act extending time for the bringing of this application.
8. It is for these reasons the Court makes the above orders.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.