BJW19 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1534

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BJW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1534   

File number(s): ADG 118 of 2019
Judgment of: JUDGE GERRARD
Date of judgment: 19 September 2025
Catchwords:  MIGRATION – temporary protection visa – decision of the Immigration Assessment Authority – whether IAA made irrational finding – whether IAA understood and engaged with applicant’s claim – whether IAA should have invited applicant to interview – unreasonable exercise of s 473DC – jurisdictional error established – writs issued
Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473CB, 473DC, 473DD, 476
Cases cited:

ABT17 v Minister for Immigration and Border Protection  (2020) 269 CLR 439

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[2003] HCA 30; 198 ALR 59  
Division: Division 2 General Federal Law
Number of paragraphs: 56
Date of last submission/s: 22 May 2025
Date of hearing: 27 May 2025
Place: Adelaide
Counsel for the Applicant: Mitchell Simmons
Solicitor for the Applicant: Estrin Saul Lawyers
Counsel for the First Respondent: Alex Chan
Solicitor for the First Respondent: Sparke Helmore
Second Respondent: Submitting appearance, save as to costs

ORDERS

ADG 118 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BJW19

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE GERRARD

DATE OF ORDER:

19 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the then Immigration Assessment Authority made on 11 March 2019.

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the applicant’s review application according to law.

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).

REASONS FOR JUDGMENT

JUDGE GERRARD:

INTRODUCTION

  1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Temporary Protection Visa (TPV). For the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). This Court cannot undertake a review…

Continue reading BJW19 v Minister for Immigration and Citizenship

Sign in free to access the full text

Details
AGLC
BJW19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1534
Case
[2025] FedCFamC2G 1534
Decision Date

CaseChat Overview and Summary

The applicant, an Iranian citizen, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse to grant him a temporary protection visa. The applicant had arrived in Australia as an unauthorised maritime arrival and applied for a temporary protection visa. The IAA found that the applicant was not a member of the same family unit as his parents and assessed his claims independently. The IAA declined to invite the applicant for an interview and found that the applicant's claims were not credible. The applicant argued that the IAA made an irrational finding and failed to properly understand and engage with his claims. The applicant also contended that the IAA should have invited him to an interview.

The court considered whether the IAA made an irrational finding or failed to properly understand and engage with the applicant's claims. The court found that the IAA's decision not to invite the applicant for an interview was a jurisdictional error. The IAA had not properly considered whether to invite the applicant for an interview and had failed to take into account the exceptional circumstances presented by the applicant's former migration agent's conduct. The court found that the IAA's failure to invite the applicant for an interview was a jurisdictional error that rendered the IAA's decision invalid. The court also found that the IAA's findings in respect of the applicant's protest activity and religious beliefs were not irrational or unreasonable. The IAA had properly considered the evidence before it and had provided reasons for its findings.

The court found that the IAA had made a jurisdictional error in declining to invite the applicant for an interview. The court issued writs in favour of the applicant and against the Minister for Immigration and Citizenship.

The court ordered that the decision of the IAA be set aside and that the matter be remitted to the IAA for reconsideration in accordance with the court's reasons. The court also ordered that the applicant's costs of the application be paid by the Minister.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out below, the Court has found jurisdictional error in the Tribunal’s decision. On that basis, the application has succeeded.BACKGROUND On 4 July 2013, the applicant arrived at Christmas Island along with his parents and other family members as an unauthorised maritime arrival (Court Book (CB) 5-6, 8-11, 102). He is an Iranian citizen of mixed Arab and Persian ethnicity (CB 95, 97). On 30 July 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1-26). In that interview, he claimed that he left Iran because he had been threatened by the family of his then-girlfriend on the basis of his ethnicity (CB 14-15). On 19 July 2016, the applicant’s parents were invited to apply for a TPV or a Safe Haven Enterprise (subclass 790) visa (CB 80-81). On 12 September 2016, the applicant and his mother were included in his father’s TPV application on the basis that they are members of the same family unit (CB 82-173). They were assisted by a registered migration agent and the application annexed supporting documents including character reference letters, a statement of claims, identity documents and statutory declarations (CB 174-199). On 21 March 2018, the applicant was invited to attend an interview scheduled for 6 April 2018 (CB 211-212). Following the interview, on 8 April 2018, the applicant’s migration agent provided the Department with further written submissions and supporting photographic evidence, and on 14 April 2018, with another reference letter (CB 215-228). On 15 November 2018, a delegate of the Minister refused to grant the applicant a TPV (the visa) (CB 229-255). The delegate ultimately determined that the applicant was not a member of the same family unit and therefore considered his protection claims independently. On 21 November 2018, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 256-257). On 26 November 2018, the applicant appointed a new legal representative (CB 264). On 12 December 2018, the applicant’s representative requested an extension of time to provide further supporting material on the basis that the applicant’s former migration agent had acted negligently and fraudulently (CB 272-273). On 18 December 2018, the applicant’s representative provided written submissions addressing new information and exceptional circumstances for the purpose of s 473DD of the Migration Act 1958 (Cth) (the Act) including, inter alia, the former migration agent’s conduct and the impact this had on the applicant’s claims (CB 276-280). The applicant’s representative contended the circumstances were such that the applicant should be invited to a new interview pursuant to s 473DC. The submissions were accompanied by several supporting documents including a statutory declaration by the applicant, letters of support, a copy of the complaint to Office of the Migration Agents Registration Authority about the former migration agent, and photographs and evidence in support of the applicant’s claims, including accredited translations (CB 281-370).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 3 April 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Act.THE IAA’S DECISION The applicant’s grounds are narrow and challenge two specific aspects of the IAA’s reasons: its decision to not invite the applicant for an interview and its findings in respect of the applicant’s protest activity and religious beliefs.The IAA’s reasons for declining to invite the applicant to an interview The IAA set out that it had listened to the recording of the applicant’s interview before the delegate. The IAA noted that the applicant, and his former agent, were clearly ill-prepared for the interview having mistakenly believed that the applicant was there in his capacity as the member of his father’s family unit. The IAA noted that neither the applicant nor his former agent had expected to say anything in support of the applicant’s own claims. The IAA also noted that certain matters had not been translated for the applicant at the interview. The IAA found that the applicant was ill-prepared at the interview and unaware of some of the representations which were made on his behalf. On this basis it was prepared to accept new information provided by the applicant’s new agent including a statutory declaration from the applicant. The IAA considered whether to obtain further information from the applicant but determined this was not necessary as it found that the information before it provided a sufficient basis to assess the applicant’s claims.The IAA’s findings in respect of the applicant’s religious beliefs and protest claims The IAA observed that the applicant has a brother and two sisters who have been granted asylum in Australia. His two sisters are Christians who evangelised to the applicant’s father, who is now also Christian. The IAA set out the applicant claim that he would be subject to adverse treatment in Iran because his family is Christian. The IAA noted he claims he believes in God but objects to engaging in religious practices like praying, and says he does not follow any particular religion. The IAA set out that the applicant claimed that he used to practice Islam in Iran to avoid trouble, but now refuses to follow Islamic practices and claims he will share his views openly in Iran. The IAA set out that the applicant claimed, that if questioned about religion, he will say he is not Muslim and he would be imprisoned for being an apostate. The applicant also claimed that he participated in two protests against the Iranian government in Adelaide in 2017. The applicant claimed the Iranian government will be aware of this and that he would be harmed in Iran on the basis that he is a political activist. The IAA accepted that the applicant’s sisters and father practice Christianity, attending church weekly and evangelising, noting that one of the sisters is an MC at the church and has requested that nobody takes photos of the services so as to ensure that no photos of attendees make their way back to Iran (at [19]).

Ratio Decidendi

Legal Principle Established

The materials before the Court include:·The amended application for judicial review filed by the applicant on 9 May 2025;·The affidavit of the applicant sworn and filed on 3 April 2019 (taken as read and in evidence at the hearing on 27 May 2025);·A Court Book numbering 391 pages (marked as Exhibit 1);·Written submissions filed on behalf of the applicant on 9 May 2025; and·Written submissions filed on behalf of the Minister on 22 May 2025.CONSIDERATIONGround 1 – Did the IAA make a finding that was irrational, unreasonable or lacking in intelligible justification? This Court has previously considered the principles relating to illogicality and legal unreasonableness in Leka v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 123 as follows (at [80]-[83]):[80] It is well established that the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made (see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33] (Djokovic) and the cases cited therein). [81] In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] (SZMDS), Crennan and Bell JJ set out the test for irrationality or illogicality as follows:...[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[82] The correct approach, according to the High Court in SZMDS, is to enquire “whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it” (at [133]). At [135], the High Court stated:On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality , a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn...[83] In Djokovic at [35], it was observed:Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002[2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.