FTT18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 17

1. As to the substantive merit of the application for judicial review, the applicant seeks to impugn the Authority's decision on a single ground in his amended application. The applicant contends that the Authority fell into jurisdictional error by failing to consider claims or integral parts of his claims that clearly emerged from the materials, namely that:
   1. the applicant faced a real chance of serious harm as he would need to return to Iran on a temporary travel document; and/or
   2. the applicant faced a real risk of significant harm or real chance of serious harm as he would be questioned on return to Iran as if he had departed illegally or suspected of illegal departure as he would be returning on a temporary travel document and without a passport with a valid exit visa.
2. These reasons concern the applicant's application for an extension of time. It will be seen from the discussion below that the success of the application largely turns on whether there is merit in the underlying allegation of jurisdictional error.
3. I am not persuaded that there is merit in the applicant's claim that the Authority failed to consider his claims or the integers of those claims in its review of the delegate's decision. Having taken into consideration the length of the applicant's delay, the reasons for the delay, any prejudice to the Minister and the merits of the underlying application for judicial review, I do not consider it to be in the interests of justice for an extension of time to be granted. Accordingly, the application will be dismissed.

1. As the applicant relies upon single ground of alleged jurisdictional error, the background can be relatively shortly stated. Much of what preceded the Authority's decision is common ground between the parties and is conveniently set out in the Minister's written outline of submissions[1]:

[8] The Applicant is a citizen of Iran. He arrived in Australia as an Unauthorised Maritime Arrival (UMA) on 28 March 2013[2]. On 14 April 2013, the applicant participated in an "Irregular Maritime Arrival Entry Interview".[3] In the Entry Interview, the applicant is recorded as having given an answer to the question "When and how did you leave [Iran] and who travelled with you?"[4] as having left Tehran Airport on 2 March 2013 travelling alone to Dubai, and then to Jakarta. Further, in response to the question "Where is [your passport] now?"[5] , the applicant is recorded as having given an answer: "I threw it into the International water on the boat to Australia".

[9] On 13 May 2016, the Applicant was invited to make an application for a Temporary Protection (Subclass 785) Visa (TPV) or a Safe Haven Enterprise (Subclass 790) visa (SHEV). This invitation followed the Minister having exercised the power under s 46A(2) of the Act to allow him to make such an application.[6]

[10] On 2 November 2016, the Applicant applied for a SHEV.[7] The SHEV was accepted by the Minister's Department as a valid application.[8]

[11] On 25 November 2016, the Applicant submitted more information in support of the SHEV application[9] , which included a statutory declaration he made on 22 November 2016.[10] In the statutory declaration (at [9]), when detailing how he travelled to Australia by boat, the Applicant stated "[the] smuggling people told us to drop all of our identity documents [into] the ocean".[11] The Applicant gave similar evidence to the delegate at interview.

[12] On 22 November 2017, the Minister's Department requested the Applicant to attend an interview[12] scheduled for 6 December 2017 to "discuss [his] visa application and [his] claims that [he is] a person in respect of whom Australia has protection obligations"...

1. I will at this point depart from the Minister's summary to elaborate on what occurred during the applicant's interview with the delegate.
2. A copy of the transcript of the interview was supplied to the applicant's solicitors prior to the judicial review hearing and was tendered into evidence without objection[13]. During the course of the parties' submissions, the court was taken to various exchanges between the applicant and the delegate, particularly those relating to the applicant's expressed fears about returning to Iran.
3. In his interview with the delegate on 6 December 2017, the applicant explained that he used a passport to depart Iran. When asked about the whereabouts of the passport, he confirmed that he had thrown it in the ocean on the recommendation of the captain of the vessel on which he was travelling.
4. In these proceedings there is no contest about the manner of the applicant's departure from his home country or the disposal of his Iranian passport. However, the applicant claimed to fear harm due to leaving Iran illegally. He claimed that if he returned there would be prison and lashes. This claim did not form part of the applicant's written claims. It is conceded that the claim first emerged during the SHEV interview with the delegate.
5. The transcript of the interview reveals that the delegate explored and tested this claim of illegal departure, noting the applicant's evidence that he had departed on a valid passport:

Q127: Okay. And why do you think you're at particular risk of being harmed or targeted by the government?

A: What does that mean? I don't understand.

Q128: So I have an understanding of the general situation in Iran, now I want to understand your personal circumstances. I am asking you why you think you are particularly at risk of being harmed by the government in Iran?

A: Because he[14] left the country illegally. If he return there would be prison-imprisoned and lashes.

Q129: Okay, what you mean ---

A: (Indistinct) sorry.

Q130: Continue

A: I heard that many people were - people put in prison. I mean I saw it - our neighbours - this happened to the neighbours. They went to the prison and then disappear.

Q131: Okay. How do you mean that you left illegally, in my understanding was that you left using your passport.

A: Well, I didn't return, so it would be illegal then.

Q132: Now, aside from this issue, the fact that you have left Iran and spent a period of time abroad, is there any other reason why you are personally at risk of harm?

A: Because of the situation, because there wasn't any future for me and I want for a better future because I had lost my mother and father and I - I was thinking that my future could be better than what it was because for the change of life.

1. Later in the interview, the discussion returned to the applicant's concerns about returning to Iran after having spent a significant period of time abroad:

Q208: All right. So today you've said one of the issues that you face in Iran is the fact that you've - that you left Iran and have spent a period of time abroad. I'd like to give you an opportunity to explain why you fear serious significant harm for this reason.

A: Well, I'm afraid because I feel that I don't have anywhere else to live or returned to in Iran, to return.

Q209: If you were to return to Iran why would the Iranian authorities be concerned about you having travelled overseas and resided abroad - so much so that they would subject you to serious or significant harm?

A: I don't know. You have to ask them.

Q210: Okay. I will give you another opportunity before we move on. I can only go by what you tell me today and I am just wanting to understand if there is anything else you can tell me about this claim. The reason I ask is many Iranians travel in and out of the country all the time to any number of countries around the world, including Australia so that's a fairly common occurrence for the Iranian authorities to have people returning from abroad. You left using your own passport. I'm just trying to understand why, upon your return, you would be someone of particular interest.

A: I'm scared to return. I don't know how to explain.

Q211: Okay. Is there anything else you'd like to talk about before we take a break in the interview?

A: No. I think.

1. On 5 February 2018, the delegate refused to grant the applicant a SHEV and published reasons for that decision.[15]
2. In the reasons for refusing the application for a protection visa, the delegate considered whether the applicant would be harmed on the basis of being a failed asylum seeker returning from a Western country. In assessing the claim the delegate had regard to country information including the DFAT Country Information Report Iran April 2016 (2016 DFAT Report). The delegate also had regard to country information from the UK Home Office and the Danish Refugee Council and Danish Immigration Service.
3. The delegate found (footnotes omitted)[16]:

Assessment - Failed Asylum Seeker from a Western Country

I have considered whether the applicant would be harmed on the basis of being a failed asylum seeker returning from a western country.

The applicant departed Iran lawfully on his own passport. As I have already noted, the applicant was of no particular interest to the Iranian authorities when they departed Iran. There is no information before me that indicates that the applicant has been involved in any activities since arriving in Australia, either online or in public, which would have come to the attention of the Iranian authorities. I will assess any chance of harm to the applicant returning to Iran as a failed asylum seeker from a western country in this context.

Although some country information reports have indicated that failed asylum seekers may come to the attention of the authorities on arrival in Iran, for instance if they were returning on a laissez-passer or had departed Iran illegally, I place greater weight on the information provided by the Department of Foreign Affairs and Trade (DFAT) in April 2016 that, regardless of whether a returnee was travelling on a temporary travel document or their ordinary passport, 'credible sources' had advised that returnees 'will generally only be questioned if they had done something to attract the specific attention' of the Iranian authorities. In addition, '[t]he vast majority of people questioned would be released after an hour or two.' Country information indicates that persons who have either engaged in anti-regime political activism overseas, or who have a known anti-regime political profile in Iran, may be subject to arbitrary arrest, detention and mistreatment upon return to Iran. I find, however, that the applicant does not fit either of these risk profiles.

Country information also indicates that a person would not be targeted by authorities on return to Iran for the sole reason of being a failed asylum seeker. Hossein Abdy, the Head of the Passport and Visa Department at Iran's Ministry of Foreign Affairs, advised the Danish Refugee Council, Landinfo and the Danish Immigration Service during a November 2012 fact-finding mission that it was 'not a criminal offense in Iran for any Iranian to ask for asylum in another country'. Although there are reports available which refer to failed asylum seekers being arrested on return to Iran, these refer to persons who had been involved in anti-regime political activities, either previously in Iran or during their time overseas. An unnamed 'Western diplomat and expert on Iran' based in Erbil, Iraqi Kurdistan, advised the Danish Refugee Council and Danish Immigration Service in 2013 that 'as long as a returnee has not been member of an oppositional political party or involved in political activities in other ways, she or he would not face problems upon return to Iran.'. In addition, DFAT reports have provided consistent advice over a number of years that failed asylum seekers are unlikely to be targeted by the Iranian authorities for the sole reason of having applied for asylum overseas.

At the PV interview the applicant was asked why he feared harm for this reason, given he had travelled in and out of Iran on several occasions, given he left Iran legally using his own passport, and given that it is very common for Iranians to travel abroad. He submitted that he felt afraid and that he does not know why the authorities would target him and that I would have to 'ask them.'

Having considered the applicant's circumstances and the country information outlined above, I do not accept that the fact of having claimed asylum or spent time in Australia will of itself attract adverse interest. I have not accepted that the applicant was a person of interest to the Iranian authorities at the time of their departure from Iran, and I am not satisfied there is a real chance that they would be identified as a person of interest on return. Therefore I am not satisfied that there is a real chance that the applicant would suffer for the reason of being a failed asylum seeker returning from a western country, either now or in the reasonably foreseeable future.

1. On 8 February 2018, the delegate's decision was referred to the Authority for review in accordance with the fast track process set out in Part 7AA of the Act.

1. On 7 August 2018, the Authority affirmed the delegate's decision and published its decision record[17].
2. Relevantly, at [3] of its reasons, the Authority noted that on 7 June 2018 DFAT had published updated country information on Iran (2018 DFAT Report). The Authority noted that this information was published after the delegate's decision, contained more recent details on the economic situation in Iran and the situation for returnees[18] and updated the [2016] report which had been relied upon by the delegate. In light of these matters, the Authority was satisfied that there were exceptional circumstances which justified consideration of the more recent report.
3. In the course of its reasons, the Authority expressed serious doubts about the veracity of the applicant's claims of mistreatment while in Iran, including his claims that he had been lashed as punishment for drinking at a party and that he had been stopped, interrogated and arrested while in a park with his girlfriend. The Authority ultimately rejected these claims and noted at [18] that apart from those incidents the applicant had not otherwise faced any difficulties with the authorities while in Iran.
4. At [19]-[20] of its reasons, the Authority turned to the applicant's claims of fearing harm as a returning asylum seeker and/or as an illegal departee. On the evidence, the Authority rejected the applicant's claim that he had departed illegally:

[19] At the interview with the delegate the applicant claimed for the first time that he feared harm on return to Iran due to his illegal departure. He stated that because he left illegally if he returns he will be imprisoned and lashed. The delegate clarified that the applicant left Iran using a valid Iranian passport issued to him, and that he departed via Tehran airport. When it was put to the applicant that it appeared that he had not in fact left Iran illegally, he responded that he did not return to Iran and that this may create problems. I do not accept that the applicant departed Iran illegally.

[20] I accept that should the applicant return to Iran he would do so after having sought asylum in Australia.

1. At [23] the Authority noted that the applicant had been able to depart Iran lawfully through a major international airport after the incident in which he claimed to have been interrogated and arrested while in a park with his girlfriend. The Authority was not satisfied that the applicant faced a real chance of harm on return to Iran if he appeared in public with his girlfriend. At [24], the Authority was also not satisfied that the applicant would suffer harm or persecution based on his generalised claims relating to the economic and political situation in the country.
2. At [25]-[26] the Authority considered whether the applicant's "illegal departee" and "returning asylum seeker" claims gave rise to a 'well-founded fear of persecution' under s 5J of the Act. The Authority's assessment and findings were as follows (including footnotes):

[25] I have found that the applicant did not depart Iran illegally. I am not satisfied that of itself, having spent an extended period of time abroad would bring the applicant to the adverse interest of the Iranian authorities. Millions of Iranians travel into and out of Iran each year without difficulty, including the large Iranian diaspora residing in North America, Europe, Asia and the United Arab Emirates[19].

[26] Country information before me does not support a conclusion that the Iranian authorities would seek to harm a person only because they requested asylum in a foreign country. The Danish Refugee Council and Danish Immigration Service reported in 2013 that Western diplomat and expert on Iran opined that 'as long as a returnee has not been member of an oppositional political party or involved in political activities in other ways, she or he would not face problems upon return to Iran.[20] More recently, international observers have advised DFAT the Iranian authorities pay little attention to returning asylum seekers, and have little interest in prosecuting failed asylum seekers for activities conducted outside Iran, including in relation to protection claims.[21] DFAT reports that credible sources have advised that returnees will generally only be questioned if they had done something to attract the specific attention of the Iranian authorities.[22] There is no indication on the information before me that the applicant has engaged in any conduct at any time that may be regarded as anti-regime or that would otherwise be of interest to the Iranian authorities. I am not satisfied there is a real chance of him experiencing any harm in Iran because he requested asylum in Australia.

1. The Authority was not satisfied that the applicant had well-founded fear of persecution. The Authority found that the applicant had not met the refugee criterion in s 5H(1) and was not entitled to protection on that basis: s 36(2)(a). The Authority was also not persuaded that the applicant was entitled to protection pursuant to the complimentary protection criteria in s 36(2)(aa).

1. As already mentioned, the applicant filed an application for judicial review of the Authority's decision, albeit 55 days after the 35 day time limit prescribed by s 477(1). The application was heard on 1 May 2025. Both parties were represented by counsel. Mr M Kenneally appeared for the applicant and the Minister was represented by Mr C McDermott.
2. Counsel for the applicant relied upon an amended application lodged on 3 April 2025 and the affidavit affirmed by the applicant on 31 October 2018, which sought to explain the reasons for the delay in applying for judicial review. The applicant also relied upon a solicitor's affidavit[23] which exhibited relevant extracts from the 2016 and 2018 DFAT Country information Reports on Iran and an extract from the transcript of the SHEV interview. A complete copy of the transcript was tendered by consent at the hearing[24].
3. Prior to the hearing the parties filed written outlines of submissions and the competing arguments were developed orally.

1. Pursuant to s 477(2) the Court may exercise its discretion to grant an extension of time if satisfied that it is necessary in the interests of the administration of justice to make the order.
2. In considering whether it is in the interests of the administration of justice to grant an extension of time, the Court will generally consider the merits of the substantive application, usually at an impressionistic level[25] by assessing whether the proposed grounds are "arguable", "reasonable arguable", "sufficiently arguable"[26] or have any reasonable prospect of success. However, the court is not precluded from going beyond an impressionistic assessment of the merits of the underlying application. Other relevant factors will include[27]:

(1) the length of the delay;

(2) whether the applicant has a reasonable explanation for the delay[28]; and

(3) any prejudice to the Minister or third parties.

1. In the affidavit supporting the application for an extension of time, the applicant deposes that he was "extremely upset" after having been informed by his migration agent "[in] or around August 2018" of the Authority's decision. He deposes to having no memory of being told by his migration agent that he could appeal the Authority's decision, but recalls having been told that he had "other options". The applicant says that he attended the Asylum Seeker Resource Centre on 31 October 2018 (after being recommended by friend to do so) and that he was then advised he was out of time to appeal.
2. The applicant's written outline of submissions lodged on 3 April 2025 did not endeavour to take this evidence further or address why the applicant's explanation for delay should be regarded as reasonable and adequate.
3. In his written outline, counsel for the Minister described the applicant's 55 day delay as "objectively lengthy". The Minister says that the applicant was expressly informed about the 35 day time limit in the notification from the Authority which accompanied the review decision. The Minister says that there is no excuse for ignorance of statutory timeframes[29].
4. The Minister also submits that the court should be circumspect in accepting the applicant's explanation that he was not properly informed by his migration agent of the review timeframes because "any competent migration agent worth their salt would know this and inform an unsuccessful applicant of this important information in advising of potential future options."[30]

1. The Minister concedes that if an extension of time was granted there would be no prejudice which could not otherwise be addressed through an order for costs. However, it is well-established that the mere absence of prejudice to the Minister is insufficient to warrant the grant of an extension. The Minister has a legitimate interest in the timely disposal of judicial review applications and there is a cost to the taxpayer and a delay in migration proceedings occasioned where application such as this are filed out of time.
2. Conversely, the court recognises that an applicant could be significantly prejudiced if the extension of time is not granted. If an applicant can demonstrate an arguable case of error, the interests of justice would normally weigh in their favour. An assessment of the merit of the substantive grounds of review will determine whether such an arguable case exists.

1. Notwithstanding the Authority's finding that the applicant departed Iran legally using his own passport, the applicant seeks to impugn the Authority's decision on the basis that it failed to consider claims or integers that clearly emerged from the material, namely that the applicant would be questioned on return as he would be travelling on a temporary travel document or for not being in possession of a passport with an exit visa.
2. The premise of the argument is that the applicant had a well-founded (but unarticulated) fear that he might be suspected as an illegal departee on his return and would be at risk of facing interrogation or the sanctions which might be imposed on an illegal departee under the Iranian penal code.
3. The applicant does not contest the Authority's finding that he left Iran with a valid passport and that he disposed of it prior to his arrival in Australia. Notwithstanding, at the SHEV interview the applicant claimed to fear harm because he departed Iran and did not return[31].
4. The applicant says it is significant that the delegate accepted that he would have to return to Iran on a laissez-passer (temporary travel document) and then turned to consider the 2016 DFAT report to assess how the applicant might be treated on return in those circumstances. Informed by the 2016 DFAT Report, the delegate found that returnees whether travelling on a temporary travel document or a passport would only come to the attention of the Iranian authorities if they had done something to attract attention.
5. The applicant contends that the delegate's consideration of how the applicant might be treated as a returnee on a temporary travel document involved the delegate identifying a further integer of the applicant's claim to fear harm on return, namely that he might come to the attention of authorities because he would be returning on an "irregular"[32] travel document.
6. The applicant contends that the manner of his return was therefore identified as an integer of his claims. The applicant contends that the Authority's review of the delegate's decision was required to consider this distinct claim or integer.
7. The applicant notes that the Authority obtained and considered the 2018 DFAT Report which was published after the delegate's decision. The applicant submits that the Authority should therefore have been aware of the information which suggested that a returnee who did not possess a passport with an exit visa may be suspected of illegal departure. This imputed knowledge is said to arise from paragraph [5.34] of the 2018 DFAT report which states:

[5.34] According to Article 34 of the Penal Code, the penalty for leaving the country without a valid passport (or similar travel document) is between one- and three-years' imprisonment, or a fine of between 100,000 and 500,000 rials (AUD4-20). A special court located in Tehran's Mehrabad Airport deals with such cases. The court assesses the background of the individual, the date of their departure from the country, the reason for their illegal departure, their connection with any organisations or groups, and any other circumstances. This procedure also applies to people who are deported back to Iran and who are not in possession of a passport containing an exit visa. DFAT understands that illegal departure is often prosecuted in conjunction with other unrelated offences (emphasis added)

1. The applicant submits that the delegate's findings and the 2018 DFAT Report led to the emergence of a further claim that the applicant might face attention from or be questioned by Iranian authorities due to suspicions of unlawful departure. It is submitted, alternatively, that this was an integer of the applicant's claim to fear harm for illegal departure or the claim identified by the delegate that he was at risk returning on a temporary travel document.
2. Based on these circumstances, the applicant submits that in performing its statutory task of review the Authority was required to assess both the likelihood of such attention and the potential harm the applicant could face during those "judicial proceedings or any related interrogation". The applicant contends that the Authority failed to perform this task and thus fell into jurisdictional error.
3. The applicant submits that the failure to identify or properly consider the emergent claims is evident from a fair reading of the Authority's reasons.
4. First, at [19] of its reasons, the Authority referred generally to the applicant's claim to fear harm as a returning asylum seeker or on account of his illegal departure. There the Authority stated:

[19] At the interview with the delegate the applicant claimed for the first time that he feared harm on return to Iran due to his illegal departure. He stated that because he left illegally if he returns he will be imprisoned and lashed. The delegate clarified that the applicant left Iran using a valid Iranian passport issued to him, and that he departed via Tehran airport. When it was put to the applicant that it appeared he had not in fact left Iran illegally, he responded that he did not return to Iran and that this may create problems. I do not accept that the applicant departed Iran illegally.

The applicant submits that it should have been clear to the Authority from this summary of the SHEV interview that the applicant's fear of harm more broadly encapsulated any "problems" he might encounter upon his return in circumstances where the Iranian authorities might have reason to suspect that he departed illegally. In other words, the Authority should have identified the claim as being one which extended beyond whether the applicant had a passport at the time of his departure.

1. Secondly, the applicant says that [25]-[26] of the reasons (quoted earlier in this judgment) reveals that the Authority considered only the risk arising from the applicant's extended time abroad and as a failed asylum seeker. It is submitted that those paragraphs do not include any separate consideration of the risk of returning without a passport containing an exit visa or on a temporary travel document.
2. Thirdly, the applicant submits that a close analysis of the footnotes to [25]-[26] of the reasons confirms that none of the passages of the DFAT reports referred to by the Authority addressed the question of whether the applicant could attract attention from the authorities due to the absence of a passport with an exit visa.
3. The applicant submits that the Authority failed in its duty to properly consider the applicant's claim that he might face attention or be questioned due to suspicions of unlawful departure. The applicant submits that on a proper analysis of its reasons, the Authority concerned itself only with the risks to the applicant as a failed asylum seeker and thus failed to properly consider the risks associated with the manner of his return.

1. The Minister's response to the alleged jurisdictional error is concisely stated in the written outline as follows:

[30] The Applicant highlights country information from the DFAT Country Information Report Iran dated 7 June 2018 at [5.34] as supporting a suggestion that "a returnee who did not possess a passport with an exit visa may be treated as or suspected of illegal departure". However, the Authority made a factual finding that the Applicant did not depart Iran illegally, and it properly understood that the Applicant was concerned about the problems he might face because he had not returned to Iran. Further, in circumstances where the Authority has considered and rejected the possibility of the Applicant coming to the attention of Iranian authorities, it cannot be said that the Authority has not dealt with the possibility of the Applicant returning to Iran (without a passport) as a failed asylum seeker. The claim was otherwise clearly subsumed within the Authority's findings on the claim as to the Applicant's return as a failed asylum seeker. The Applicant's concession as to how the country information cited by the Authority could be objectively interpreted underscores this very point and the Authority's reasoning is no different to the delegate's reasoning to similar effect to this concession, either.

1. The Minister submits that the substantive application for judicial review is misconceived and devoid of merit. As such, the Minister submits that it would not be in the interest of justice to grant an extension of time and the application should be dismissed.

1. The decision of the Authority was made according to the fast track review process prescribed in Part 7AA of the Act. That statutory scheme contextualises the Authority's review task and frames the Court's consideration of alleged error.
2. As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17]:

[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

1. The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24]- [25] where his Honour stated:

[24] In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.

[25] In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied." (citations omitted)

1. In conducting its de novo review of the delegate's decision under the Part 7AA fast-track process, the Authority has a duty to conduct its review on the referred material, which includes the delegate's statement of reasons and any new information properly received.
2. The Authority was required to consider each of the claims for protection expressly articulated by the applicant and their component integers as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE) at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 (AYY17) at [18].
3. In determining whether a claim "clearly emerges", the following principles were articulated in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]:

(a) such a finding is not to be made lightly;

(b) the fact that a claim might be said to arise from materials is not enough;

(c) to clearly emerge from the materials, the claim must be based on "established facts" [...]

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party"; and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. The claims made by the applicant must be considered in light of the basis upon which the application was made, "not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process"[33]. It is not for the Court to "ferret around and construct a claim when none has been made," especially when the applicant is represented by a migration agent or legal practitioner.

1. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (Plaintiff M1/2021) the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [24]-[27] (omitting footnotes):

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive authority is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

[25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

1. It is uncontroversial that on judicial review the applicant assumes the burden of persuading the Court that there was a failure to deal with a claim or consider a matter the Authority was obliged to consider, or to make the finding of jurisdictional error for which he or she contends[34].
2. The question of whether the Authority has discharged its statutory task is to be answered primarily through the lens of the Authority's reasons. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49] the Court said:

The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

1. However, the reasons of the Authority must be read fairly and as a whole and not "with an eye keenly attuned to the perception of error"[35]. Whether the Authority is obliged to consider particular evidence will depend upon the cogency of that material and the place of that material in the assessment of the applicants' claims. The Authority's consideration of such evidence need only reflect the length, clarity and degree of relevance of the material before it. The Authority is not required to record generally "what it did" in conducting its review, nor is it required to describe every step taken or refer to every piece of evidence in conducting its review.
2. Therefore, where a matter is not referred to in a decision-maker's reasons, there are two obvious hypotheses. One is that the omission of the matter from the reasons indicates that the decision-maker did not consider the matter at all. The other is that the decision-maker did consider the matter but did not consider it material. It is important to recognise that there is a distinction between these possibilities[36] and that the absence of a reference to material in the reasons does not of itself give rise to one inference or the other.
3. A decision-maker can, quite properly, consider a matter by thinking about the matter (including the appropriate weight to attribute to such a matter) without making any findings[37]. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered[38]. A failure to advert to the content of particular evidence may simply indicate that the decision-maker did not consider the matter to be material[39]. Where it is apparent that a decision-maker has read a document, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw[40].
4. Ultimately, whether a decision-maker failed to consider a matter is a question of fact, and the applicant bears the onus of establishing the failure on the balance of probabilities[41].

1. In conducting its de novo review of the delegate's decision, the Authority was required to consider each of the claims for protection expressly articulated by the applicant and their component integers as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority[42].
2. Conversely, the Authority was not required to consider any claim which was not expressly articulated and which did not clearly emerge on the materials. The fact that a claim might be said to arise from materials is not enough[43].
3. The first matter to consider is whether an unarticulated claim emerged which was required to be considered by the Authority.
4. Understanding whether a claim has clearly emerged from materials is not something which can be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time. Unless there are reasons to think otherwise, the Authority was entitled to assume that claims expressly articulated by an applicant and his representative as to his fears of persecution were those on which the applicant relied[44].
5. The applicant's claim that he might face a risk of harm as an illegal departee was first raised by him at the SHEV interview before the delegate. The claim was raised in response to the delegate's question about why the applicant considered himself to be at risk of being harmed or targeted by the Iranian government. He had not previously expressed any concern of adverse consequences for having left Iran with a passport or for disposing of his passport in the ocean prior to arriving in Australia.
6. At the SHEV interview the applicant characterised his departure from Iran as "illegal" without giving any clear explanation. He did not claim that the manner of his departure was irregular - indeed he has never contested evidence that he had travelled to and from Iran on several occasions and that his last departure was on a valid passport and from a major international airport.
7. Unsurprisingly the delegate questioned the applicant about his claim to have left Iran illegally[45]. The applicant initially claimed that he would be imprisoned or lashed if he returned. He gave examples of people in Iran including neighbours being put in prison or having gone missing, but that response had no clear connection to the applicant's departure from Iran or the circumstances of other departees or asylum seekers.
8. On further questioning about what he meant by leaving the country illegally, the applicant clearly tethered his claim of "illegal" departure to the fact that he had not returned to Iran[46]. The delegate construed that response to mean that the applicant was concerned about the risk from having left Iran and spent a period of time abroad[47]. When asked about why his departure and lengthy absence from Iran would subject him to a risk of serious harm, the applicant explained that he was concerned for his future, including that he would not have anywhere to live on return[48].
9. Pressed further about why Iranian authorities would be concerned about him travelling overseas and having resided abroad, the applicant made no reference to the manner of his departure. Indeed, the applicant could not answer the question and deflected, suggesting that the delegate should "ask them".[49] After reminding the applicant that he had left Iran using his own passport, the delegate again asked the applicant why, upon his return, he would be someone of interest to the authorities. He answered that he was scared to return, but otherwise had no answer[50].
10. The delegate found that the applicant had departed Iran legally and in possession of a passport. The delegate accepted the applicant's evidence that he had disposed of the passport by throwing it in the ocean. The delegate found that if the applicant returned to Iran he would most likely do so on a temporary travel document. These findings were inevitable on the evidence. The applicant never expressed concern about the manner of his departure or return, rather his concern was about the risks he might face as a returnee following a long time abroad and as a failed asylum seeker. The delegate assessed those claims and relying on the 2016 DFAT Report found that a returnee, whether travelling on a temporary travel document or passport, would generally only be questioned if they had done something to attract the specific attention of Iranian authorities - which the applicant had not. Of those questioned, the vast majority are released after an hour or two.
11. The Authority was required to review the applicant's claims on the materials referred to it and taking into account any new information. Despite affording the applicant an opportunity to do so[51], the applicant did not provide a submission to the Authority on why he disagreed with the delegate's decision or any claim or matter he presented to the delegate that was not considered. At no stage prior to the Authority's decision did the applicant ever claim (expressly or otherwise) that the manner of his departure from Iran or the manner of his return to Iran on a temporary travel document of themselves would subject him to a well-founded fear.
12. In its review of the applicant's claims, the Authority obtained and considered the recently published 2018 DFAT report.
13. The questions to be determined in the judicial review application are, first, whether the 2018 DFAT Report (in particular [5.34]) gave rise to a further claim that the applicant might come to the attention of the authorities or be questioned due to suspicions of illegal departure and, secondly, if so, whether the Authority failed to consider that claim.
14. Having regard to the history of the applicant's claims and the manner in which he had presented them over time, I am not persuaded that a new claim emerged from the materials before the Authority. The applicant's express claims about returning to Iran never rose above his concerns about having been absent from the country for a long time or having been a failed asylum seeker. Given his own evidence it was always implicit in the applicant's claims that if returned to Iran he would not do so on the documentation he used to depart the country. The applicant could have but never expressed concern that he might be suspected as an illegal departee based on the manner of his return.
15. I accept that a new claim does not have to come from the applicant himself, but the new claim must clearly "emerge" from the materials. In my view, it is a long stretch to argue that the Authority should have become aware from [5.34] of the 2018 DFAT Report that the applicant had another unarticulated claim which required separate consideration. It is a claim which, in the Minister's submission, requires a lot of imagination.
16. The following matters weigh against a finding that a new claim emerged from the materials:

(a) the delegate and the Authority found on the applicant's own evidence that he departed Iran lawfully from a major international airport and with regular documentation, as he had done on at least two previous occasions;

(b) there is no evidence and no claim by the applicant that the documentation he used to depart Iran was deficient in any way or that he might be regarded as having departed illegally for that reason;

(c) having disposed of his lawful documentation in the sea, it has always been implicit in the applicant's claims that any return to Iran would involve travel on temporary documentation;

(d) the delegate and the Authority both considered and rejected the possibility that the applicant was of any interest to the Iranian authorities. Further the applicant never claimed that the manner of his departure would be of interest to authorities if he returned; and

(e) the manner of the applicant's return had already been assessed by the delegate as part of consideration of his claims, namely that he would not return on a valid passport, he had been out of the country for a long period and he would be suspected as having been a failed asylum seeker.

1. Paragraph [5.34] of the 2018 DFAT Report does not give rise to a new claim which requires separate consideration.
2. In my view, the asserted claim of does not meet the principles described in AYY17 - it is not enough that the claim "might" arise from the materials. Here the applicant was represented by experienced migration agents and, given the way the claims were prosecuted consistently over time, the additional claim now pressed was not one which can be said to have emerged from the materials before the Authority.
3. If I am shown to be wrong about that conclusion, I am nevertheless satisfied that the unarticulated claim was subsumed[52] within the Authority's findings on the applicant's claim to fear harm as a returning failed asylum seeker. Properly read, [5.34] of the 2018 DFAT Report suggests the possibility of questioning by authorities on return, but that possibility had already been countenanced by the delegate in its consideration of the applicant's claims of fear as an illegal departee or as a failed asylum seeker. The Authority also considered that possibility. At best clause [5.34] suggests that the applicant might be questioned about another matter on return (his manner of departure) but given the Authority's finding that he had departed legally, that questioning would not be expected to change the degree of risk already found.
4. Furthermore, it cannot be presumed that the Authority did not consider the applicant's fear of returning without a passport as a distinct claim. The Authority was conscious and alert to its statutory task. It can readily be inferred from its reasons, that the Authority was aware of the requirement to turn its mind to the circumstances of the applicant's return in assessing his claims for protection. That is, it can be inferred that the Authority was fully cognisant of the applicant's fear that he might encounter "problems" on return.
5. Given the identification of the 2018 DFAT Report as new information and its extensive footnoting throughout the reasons, it should be inferred that the Authority took the whole of the more recent report (including [5.33]-[5.34]) into consideration as part of its assessment. The finding that the applicant had departed legally and in possession of a valid passport and would likely to return on a temporary document was considered and assessed as not giving rise to a well-founded risk of harm. The more likely scenario is that the emergent claim was considered but taken no further having regard to the way the applicant advanced his claims.
6. I am not persuaded that the applicant's substantive claim has arguable merit or any realistic prospect of success.

1. For the reasons set out above, I have decided not to exercise my discretion to grant an extension of time under s 477(2)(b) of the Act.
2. The length of the delay in lodging the application for judicial review was not objectively lengthy as claimed by the Minister. The applicant's explanation for the delay is not overly convincing. Granting the extension of time would not cause undue prejudice to the Minister. In combination these factors are not dispositive against the application for leave.
3. However, I am not satisfied that the applicant has established an arguable case of error. In my view, the underlying substantive claim is so weak that it is not necessary in the administration of justice to extend time.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[1] Including relevant Court Book (CB) references.

[14] The applicant was assisted by an interpreter, who answered this question on his behalf

[19] DFAT,"DFAT Country Information Report Iran", 7 June 2018, CIS7B839411226.

[20] Danish Refugee Council and Danish Immigration Service, 'Iranian Kurds: On Conditions for Iranian Kurdish Parties in Iran and KRI, Activities in the Kurdish Area of Iran, Conditions in Border Area and Situation of Returnees from KRI to Iran', September 2013, CIS26587.

[21] DFAT,"DFAT Country Information Report Iran", 7 June 2018, CIS7B839411226.

[22] DFAT, "DFAT Country Information Report Iran", 21 April 2016, CIS38A8012677.

[23] Affidavit of Cait Gibbs affirmed 3 April 2025.

[25]Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 at [13].

[26] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]- [63].

[27] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442; [2013] FCA 1284 at [46]- [48].

[28] MZZNU v Minister for Immigration and Border Protection [2017] FCA 496 at [3].

[29] Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [16] (McHugh J); MZZHZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1273 at [121(c)] (Judge Lucev).

[30] Minister's written outline of submissions at [25].

[31] Exhibit A1 (transcript), Q131 & answer.

[32] Applicant's written outline at [6].

[33] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1].

[34] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67].

[35] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[36] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [31], Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [51].

[37] See Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 (Guclukol) at [41]-[53] and [55] (Katzmann, O'Callaghan and Derrington JJ).

[38] Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; (2018) 261 FCR 461, at [49] (the Court).

[39]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [5] (Gleeson CJ).

[40] See SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [27] (Heerey, Branson and Emmett JJ), SZGUR at [73] (Gummow J, with whom Heydon and Crennan JJ agreed at [91] and [92]), BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 at [47] (Moshinsky J).

[41] Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389 at [60] (Sackville J); SZGUR at [67], [91]-[92] (Gummow, Heydon and Crennan JJ); BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 (BVD17) at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[42] NABE at [55], [68]; AYY17 at [18].

[44] ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32]; SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]- [81].

[46] Exhibit A1 (transcript) Q131 and answer.

[47] Exhibit A1 (transcript) Q132 and Q208.

[48] Exhibit A1 (transcript) answers to Q132 and 208.

[49] Exhibit A1 (transcript) Q209 and answer.

[50] Exhibit A1 (transcript) Q210 and answer.

[52] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47].