BAB19 v Minister for Immigration

The applicant, BAB19, sought judicial review of a decision by the Minister for Immigration to affirm a delegate's refusal to grant a visa. The application was filed approximately 88 days outside the prescribed 35-day time limit. The applicant's legal representative filed an affidavit explaining the delay, citing the applicant's incarceration at the time of the decision and his self-medication, which impaired his understanding of legal advice. The Minister did not oppose the application to extend time.

The court was required to determine whether to grant the applicant an extension of time to file the application for judicial review and, if so, to consider the grounds of review. The applicant elected to press only grounds 3 and 4 of the six grounds initially raised. Ground 3 alleged that the decision of the Immigration Assessment Authority (IAA) was affected by legal unreasonableness, specifically that it failed to adequately address the possibility of the applicant participating in future political protests in Iran, facing arrest and detention, or alternatively, failed to consider this claim according to law.

Judge Blake granted the extension of time, accepting the explanation for the delay and noting the relatively short period of lateness and the lack of prejudice to the Minister. The court then considered ground 3, which concerned paragraphs [38] and [39] of the IAA's decision. The IAA had accepted the applicant participated in the 2009 Green Movement protests, was arrested and warned, but had not engaged in further political activity in Iran or Australia. The IAA concluded that, given the applicant's limited past participation and lack of further engagement, his intention to participate in future protests was not established, and the chances of him suffering harm for such participation were remote. The applicant's argument was that the IAA failed to deal with the accepted possibility of future protests and potential arrest.

The court permitted the applicant to file the application out of time. The applicant's grounds of review were then considered, with the applicant abandoning grounds other than 3 and 4. Ground 3 alleged legal unreasonableness in the IAA's assessment of the risk of future political protest and subsequent detention.