DWK18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1680

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. The applicant seeks an extension of time in which to seek judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
2. For the following reasons, I will grant the extension of time. However, I consider that I am ultimately obliged to dismiss the application for review of the IAA's decision.

1. The applicant is a citizen of Iran, who arrived in Australia as an unauthorised maritime arrival some years ago. On 23 December 2016, the applicant applied for a protection visa.
2. On 27 February 2017, the Delegate refused the application. The matter was subsequently referred to the IAA for review of the Delegate's decision.
3. On 11 August 2017, the IAA affirmed the Delegate's decision.

(a) the applicant was a citizen of Iran and resided in the area claimed (the Area) (at [8]);

(b) there were environmental problems in the Area that may have contributed to illness amongst its residents (at [9]);

(c) the applicant was rounded up with a number of other young men by the police whilst out shopping and detained for several hours (at [10]);

(d) the applicant was subjected to a body search and had to sign a paper saying that he would comply with the laws (at [10]);

(e) the applicant may experience some form of low-level harassment from the Iranian authorities as a young man/person who may not conform to expected standards of Islamic dress (at [13]);

(f) the applicant had a political opinion against the political and human rights situation in Iran (at [14]);

(g) the applicant was of Bakhtiari ethnicity (at [16]);

(h) the applicant no longer believed in Islam (at [22]);

(i) the applicant attended Church in Australia, was baptised and changed his name (although the IAA found that this was for the purpose of strengthening his protection claims) (at [29]); and

(j) the applicant would be returning to Iran as a failed asylum seeker from Australia (at [30]).

(a) even if the applicant's health were impacted by pollution in the Area, this would amount to a well-founded fear of persecution or significant harm as relevantly defined under the Migration Act 1958 (Cth) (Act) (at [9] and [44]);

(b) the applicant was beaten when he was detained by the authorities (at [10]);

(c) the applicant was prevented from going out with a girl of his choice (at [11]);

(d) the harassment the applicant may experience as a young man/person who may not conform to expected standards of Islamic dress would amount to serious or significant harm (at [13] and [42]);

(e) the applicant would be imputed as being against the Iranian regime as a young person who may not conform to expected standards of Islamic dress or behaviour (at [13]);

(f) the applicant would be interested in publicly voicing his political opinion on return to Iran (at [14]);

(g) the applicant faced a real chance of relevant harm on account of his political opinion (at [14]);

(h) the applicant faced a real chance of harm as a result of being caught in cross-fire between Ahwaz Arabs fighting each other (at [15]);

(i) the applicant faced a real chance of harm on return to Iran from Ahwazi Arabs on the basis of his ethnicity (at [16]);

(j) the applicant's parents or siblings forced him to follow Islam (at [18]);

(k) the applicant was overheard by an Arab member of the Basij abusing Islam (at [21]);

(l) the following day the Basij came to the family's house looking for the applicant, or that the applicant fled to Tehran for this reason (at [21]);

(m) the Basij has a file on the applicant (at [21]);

(n) the applicant fled Iran out of fear as a result of this incident or because he wanted to express his religious opinion openly and was in fear of doing so (at [21]);

(o) the applicant would be perceived as an apostate because he may not conform to expected standards of Islamic dress and behaviour (at [23]);

(p) the applicant's non-belief in Islam would come to the attention of the Iranian authorities or the wider Iranian community on his return to Iran (at [23]);

(q) the applicant would face a real chance of relevant harm for not believing in Islam or because of perceived anti-Islamic behaviour and dress (at [23] and [42]);

(r) the applicant had genuinely converted to Christianity (at [29]);

(s) the applicant had told his family in Iran about his baptism and new name, or that there was a real risk that they (or the authorities) would find out (at [29] and [41]);

(t) any questioning the applicant may face on return to Iran would amount to serious or significant harm (at [33]-[34] and [43]);

(u) the applicant would face a real chance of harm on return to Iran on the basis of being a failed asylum seeker from Australia (at [34]);

(v) the applicant's experiences or profile gave rise to a real chance of relevant harm (at [35]);

(w) the applicant would practise Christianity on return to Iran or wish to continue to be referred to by his new name (at [41]); or

(x) there was a real risk of significant harm on return to Iran as a result of the applicant's church attendance, Christian baptism or use of another name in Australia (at [41]).

1. Based upon the above, the IAA found that the applicant did not meet the criteria for the protection visa (at [36] and [46]). The IAA therefore affirmed the Delegate's decision.

1. The principles relevant to extensions of time have been considered in cases such as BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 (BTI15) and Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 (Katoa). The Court is required "to evaluate all of the relevant circumstances and to decide if the Court is satisfied that the extension of time is necessary in the interests of the administration of justice": BTI15 [40] (Jagot and Halley JJ); see also Katoa at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Whilst the matters to which regard may be had are not expressly confined by the Act, matters that may be relevant include the extent of the delay and the explanation for it, any prejudice, the impact on the applicant if time is not extended, the public interest and the merits of the substantive application: see BTI15 at [25]-[26] (per Logan J) and Katoa at [40] (Gordon, Edelman, and Steward JJ).
2. At the hearing of this matter the parties confirmed that they did not seek any further hearing in the event that time were extended. The parties instead invited the Court, in such event, to proceed to determine the application for judicial review.
3. In this matter, the application to the Court was filed around 10 months out of time. The explanation for the delay cannot be regarded as entirely satisfactory. Although the applicant's evidence indicates that part of the delay may have been contributed to by the conduct of migration agents, a substantial part appears to be attributed to the applicant's lack of knowledge, language skills and resources. Although this may be, in a sense, understandable, I am not persuaded that these issues satisfactorily explain delay of the nature that is in issue: see for example SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] (Foster J).
4. However, no prejudice has been identified by the Minister (beyond costs and the public interest in finality). The ground relied upon by the applicant (that the IAA failed to complete the exercise of its jurisdiction) appears to have some merit although, for the reasons that follow, I am not persuaded that it ultimately ought to succeed. Refusal of the extension of time would affect the applicant's ability to appeal my decision: see BTI15 at [4] per Logan J.
5. In all of the circumstances of this case, I consider it appropriate to grant the extension of time. However, for the reasons that follow, the underlying application for judicial review will be dismissed.

1. The applicant sought judicial review of the IAA's decision through an application filed on 26 July 2018. The matter remained in the central migration docket for some years and was previously docketed to another judge before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon the following ground contained within an amended application filed on 15 July 2025:

1. The Authority failed to complete the exercise of its jurisdiction

Particulars

1. The Authority accepted that the applicant had been arrested by the police in Iran [in a particular year]
2. The Authority accepted that as a consequence of this arrest the applicant had to sign an undertaking not to break the law.
3. The Authority accepted that the applicant may adopt western dress and hairstyles in the future and there was a real chance that he would receive some form of harassment from the Iranian Authorities as a young man/person who does not conform to the standards of Islamic Dress.
4. The Authority failed to consider whether this conduct would be a breach of the undertaking that the applicant had given and if so what would be the consequences of this breach.

1. In oral submissions, the applicant accepted that he had made no express claim that he would be at enhanced risk of harm on account of breaching the undertaking, nor regarding the consequences of this. However, the applicant submitted that this was a matter that arose, clearly, from the material before the IAA and was required to be addressed.
2. The applicant observed that during his entry interview, he had claimed that he had been arrested with a group in a shopping area and detained for a few hours when he was a teenager (CB 11). In a statement in support of his protection visa application (CB 67), the applicant had stated:

9. In [a specified year] I was stopped by the police and arrested, I had been shopping. It was common for the police to randomly arrest young men and detain them.

10. They would accuse us for having a modern hairstyle, or wearing fashionable jeans, or a Tshirt with slogans on it. On the day I was arrested, they raided the shopping centre and took as many young men that they could. They did not give any explanation as to why I was arrested. We all were subjected to body search, and then had to sign a paper that I will comply with the laws. Then we were all released approximately six hours later.

11. I was aware that I did not have any freedom of speech or any freedom of wearing what I wanted. I was also prevented from going out with a girl of my choice.

12. The Basij were always watching and spying on us.

1. The applicant substantially repeated his claims to have been detained and forced to "sign a paper that [he would] comply with the laws" in a subsequent statement (CB 108-109), with some elaboration regarding a "harsh beating" (that was not accepted by the IAA).
2. The applicant observed that in the Delegate's decision, it was stated (CB 124):

... UK Home Office country report 2011, quoting Jane's Sentinel Security Assessment, states "Basij personnel are the eyes and ears of the Islamic regime and are considered extremely loyal".12 UK Home Office also reported in October 2016, citing a New York Post article, that Basij, Iran's feared morality police, have targeted people who posted snaps that were deemed to be too revealing and eight people were arrested and interrogated...

10. In both statements the applicant refers to an incident in [a specified year] where he was stopped by the police and detained whilst he was out shopping. He claims it was common for the police to randomly arrest young men and detain them and accuse them of having a modern hairstyle, wearing fashionable genes or a T-shirt with slogans on it. On the day he was arrested they raided the shopping centre and took as many young men as they could and did not give any explanation as to why they had been arrested. I have given weight to the fact that the applicant referred to this incident in his entry interview... I accept that the applicant was rounded up with a number of other young men by the police whilst out shopping and that he was detained for several hours. In the applicant's first statement he also referred to the fact that they were subjected to a body search and had to sign a paper saying that they would comply with the laws which I also accept occurred. In his second statement, however, he further added that they were subjected to a harsh beating. As this is the first time the applicant raised being beaten in this incident and that he did not mention this in his entry interview or in his first statement, I am satisfied the applicant has embellished this aspect of his claims and I do not accept that he was beaten on this occasion. The applicant also claims that he did not have the freedom to wear what he wanted but did not elaborate further on this claim. He also claimed the Basij was always watching and spying on them.

11. The applicant also claimed that he was prevented from going out with a girl of his choice, though it is not clear from his evidence how or who prevented him from going out with the girl of his choice so I do not accept this claim.

12. A 2016 media report claimed that Tehran's police announced up to 7,000 undercover officers would be on the lookout for those who do not follow conservative Islamic modes of dress and behaviour. They are called the Gashte Ershad, the "guidance patrol," and they have broad powers to chastise and even arrest people for failing to meet what might be called the modesty test and noted that men were occasionally stopped but it was women who attracted most of the attention.2 The Australian Department of Foreign Affairs and Trade (DFAT) recently assessed in 2016 that the Iranian authorities can take a heavy- handed approach when they periodically enforce standards of Islamic conduct in the community, including Islamic dress and public displays of affection with non-family members of the opposite sex. Article 638 of Iran's Penal Code states that anyone in public places and roads who openly commits a haram (sinful) act, in addition to the punishment provided for the act, shall be sentenced to two months imprisonment or up to 74 lashes; and if they commit an act that is not punishable but violates public prudency, they shall only be sentenced to ten days to two months imprisonment or up to 74 lashes. DFAT states that youth 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.3

13. Whilst I accept that there is a real chance the applicant will experience some form of low-level harassment from the Iranian authorities as a young man/person who may not conform to expected standards of Islamic dress, I am not satisfied the nature of this harassment as described above, including being subjected to verbal warnings, searches, car checks, signing undertakings, and brief detention, individually or cumulatively, amounts to serious harm. Although the applicant has been detained once... I have given consideration to the fact that he was not charged with any offence and was released the same day after signing an undertaking and has not claimed to have been of any further interest to the Iranian authorities or subject to similar treatment again. I am satisfied that this was an isolated incident. I am not satisfied, on the information before me, that the applicant has, or will be, imputed to be against the Iranian regime as a young person who may not conform to expected standards of Islamic dress or behaviour. I am not satisfied the applicant faces a real chance of serious harm on return to Iran as a young man/person that may not conform to expected standards of Islamic behaviour or dress.

42. Although I accept that the applicant was detained on one occasion by the police in... I note he was not charged with an offence and released the same day and there is no credible evidence that he was of any further interest to the authorities as a result of this incident. On the country information before me, I accept that there is a real risk the applicant may face a low-level of harassment, such as being subjected to searches, brief detention, signing undertakings and car checks and verbal warnings as a young man/person who may not conform to expected standards of Islamic conduct and dress. However, I do not consider this level of harassment, individually or cumulatively, arises to the level of significant harm because I am not satisfied that these incidents involve acts or omissions that are intended to inflict severe pain or suffering or pain and suffering on the applicant, or are intended to cause extreme humiliation which is unreasonable. As such, I am not satisfied that these incidents constitute cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in s.5(1). These incidents do not involve torture or an arbitrary deprivation of life or the death penalty. I am also not satisfied, that the applicant has, or will be, imputed to be against the Iranian regime as a young man/person who may not conform to expected standards of Islamic dress or behaviour. I am not satisfied on the evidence that the applicant will face a real risk of significant harm for perceived anti-Islamic behaviour and dress.

1. The applicant submitted that the existence of the undertaking he had signed saying that he would "comply with the laws" created an aggravating feature to his risk profile on return to Iran. This feature, it was submitted, meant that the applicant's past treatment by the authorities was not necessarily an accurate guide to how he would be treated in the future. The applicant submitted that it was "in the nature of an undertaking that if it is breached then there will be a penalty for that breach". However, the applicant submitted that the IAA gave no consideration as to whether the conduct it found that the applicant would engage in would be a breach of the undertaking that the applicant had given and, if so, what would be the consequences of this breach.
2. The applicant submitted that findings needed to be made on this aspect of his situation to address all the integers of his claimed fear of harm. He submitted that a failure of this kind would be regarded as a constructive failure to exercise jurisdiction, relevantly, under s 473CC of the Act to review the fast track reviewable decision that was referred to the IAA. The applicant submitted that this resulted in jurisdictional error: Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J, as his Honour then was); Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ); AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18] (Collier, McKerracher and Banks-Smith JJ).
3. I am not persuaded that the applicant's case is able to succeed. This is essentially for two reasons.
4. The first is that I am not persuaded that a claim clearly arose that breach of the undertaking would be an aggravating factor that increased the applicant's chances of harm. A finding that a claim clearly emerges is not to be made lightly: AYY17 at [18]. I do not accept the applicant's suggestion that it is self-evidently inherent in the nature of an undertaking that if it is breached, then there will be a penalty for the breach. This is not necessarily the case. The applicant was unable to point to any evidence before the IAA, such as country information, to the effect that being perceived to have breached an undertaking would be an aggravating factor that may increase the prospects of harm in the event of subsequent arrest. In the absence of such material that could have given content to such a claim, I am not persuaded that a claim of this nature clearly emerged on the material before the IAA.
5. The second reason I am not persuaded that the ground ought to succeed is that there is insufficient basis for finding that the IAA failed to consider the effect of the undertaking in assessing any risk faced by the applicant. The IAA was clearly aware of the undertaking, having expressly accepted that it had been signed by the applicant (at [10]). The IAA considered country information that was before it, set out above, including that "youth 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" (at [12]). Having considered both the applicant's claimed circumstances (including regarding the undertaking) and the country information before it, the IAA concluded that the applicant may face (further) low-level harassment as a young person not conforming to expected standards of Islamic conduct and dress. The IAA considered that this may include "signing undertakings" (plural), as well as brief detention, car checks and verbal warnings. The IAA concluded that this would not amount to serious or significant harm (at [10]-[13] and [42]).
6. From the above, the IAA appears to have considered that the applicant would not face harm rising to serious or significant harm, on account of his undertaking or otherwise, should he attract further harassment from the authorities due to his age, conduct and/or dress in the future. I have not been persuaded that it was closed to the IAA to have reasoned in this manner. As observed above, the applicant did not rely, for example, upon any country information that was before the IAA capable of demonstrating that the applicant would face an alternative or heightened risk of harm on account of the undertaking he had given.
7. It follows that I am not persuaded that the IAA failed to address all integers of the applicant's claims, or constructively failed to exercise jurisdiction. The sole ground relied upon by the applicant is therefore unable to succeed.

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.