CRR15 v Minister for Immigration

[2016] FCCA 3346

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3346

Catchwords:
MIGRATION – Judicial review – former refugee review tribunal decision – refusal to grant Protection (Class XA) visa – Faili Kurd – whether failure to consider complimentary protection provisions – whether jurisdictional error.

PRACTICE AND PROCEDURE – Application for extension of time in which to file substantive application – consideration of factors on an extension of time application – consideration of extension of time application in context of whether a serious issue to be tried.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 362(2A), 477(1)

Cases cited:

Minister for Immigration v SZIAI (2009) 259 ALR 429

Prassad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

WZATH v Minister for Immigration & Anor [2014] FCCA 612

WZATH v Minister for Immigration and Border Protection [2014) FCA 969

Applicant: CRR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1158 of 2015

Judgment of: Judge Jarrett

Hearing date: 5 May 2016

Date of Last Submission: 5 May 2016

Delivered at: Brisbane

Delivered on: 21 December 2016

REPRESENTATION

Solicitors for the Applicant: Stolar Law

Counsel for the First Respondent: Ms Stoker

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent enters a submitting appearance

ORDERS

1. The amended application filed on 30 March, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1158 of 2015

CRR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to commence an application for judicial review of a decision of the Administrative Appeals Tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.

2. The application is opposed by the first respondent.  The second respondent enters a submitting appearance.

3. The parties agreed that the application was to proceed to a hearing of the application for the extension of time and if I was minded to grant the extension of time, I should consider the merits of the proposed application for review and determine them.  The parties’ submissions addressed both the application for the extension of time and the proposed application for review.

4. To succeed in the application for review, the applicant must show that it is in the interests of the administration of justice to make an order extending the time within which to commence his application for judicial review.  To succeed on the application for review, the applicant must establish that the tribunal’s decision under review is affected by jurisdictional error.

5. Whether the making of an order extending the time is in the interests of the administration of justice depends upon a consideration of a number of matters including the length and explanation for the delay in commencing the proceedings; the prejudice, if any, that might be suffered by the respondent to the application; and whether the applicant has any reasonably arguable grounds of review in respect of the

   
   

   tribunal’s decision.  It is also relevant to take into account more generally that time limits are usually to be observed.  They are not without a purpose.  Further, it is necessary to take account of the impact on other litigants who have abided by time limits and who are waiting for their appeals to be heard as well as the impact upon the court system and its ability to deal with these applications in a timely way.

6. Perhaps the most significant factor to be taken into account and one to which attention is generally drawn is whether the proposed grounds of review are reasonably arguable. 

7. The applicant’s initial application for judicial review was filed on 15 December, 2015 and the amended application was filed on 30 March, 2016. The extension of time was not sought in the initial application, only the amended version. The tribunal’s decision was made on 5 November, 2015. In order for the application to have been lodged within the 35 days prescribed by s.477(1) of the Migration Act 1958 (Cth), it was required to be lodged by 10 December, 2015. It was five days late. The delay is relatively modest and there is an explanation for it.

8. The first respondent does not seriously contend that the applicant has not provided an explanation for the delay in commencing this present application.  Nor does the first respondent contend that any prejudice will be suffered by him if the proposed extension is granted.  The parties’ submissions focussed upon the merits of the proposed application for review.

9. It is necessary to consider the merits of the proposed application for review.  This is to be undertaken at a “reasonably impressionistic” level.

Background

1. The applicant arrived in Darwin by boat on 23 March, 2013.  He claimed to be a stateless Faili Kurd who had departed Iran on a false passport.

2. He applied for a protection visa on 14 June, 2013.  The applicant claimed that if he returned to Iran he would be jailed by the Iranian police and that he knew this because he had departed Iran illegally using a false passport.  The applicant also claimed that he was stateless, never had citizenship of any country and he was a Faili Kurd and a Shia Muslim. He claimed that he ‘will be at risk by the hands of Sepah and the Basij – the Authorities in the Airport’ and that the ‘Government of Iran will not give me protection or justice’.

3. He also claimed that he had fled Iran because he feared his life was in danger and he had no future in Iran.  He was stateless and was afraid that he would be targeted by the Basij and disappear like many other Faili Kurd people.  He claimed that commencing about eight years earlier his brother started to disappear and would come back very scared and used to swear at the government when this happened.  He claimed that his brother would disappear and would be gone for a few days.  About two years earlier his brother returned one day with stitches on his forehead from being bashed by the Basij and Sepah.

4. The applicant claimed to be intimidated by the Iranian government and that as a Faili Kurd he would be treated like an animal at government offices.  As a stateless Kurd, he said that he had no rights in Iran.  He claimed that he would be accused of being politically against the government given that he left Iran illegally.  They would want to know why he ran away with the help of a smuggler and as a Faili Kurd he ‘will have no defence should this happen to me’.

5. The applicant said he feared for his life should he be returned to Iran as he had no legal right to be in the country and would arrive at the airport without a passport.  He said that he had applied for Iranian citizenship twice but he was refused because he was Kurdish.  He also claimed that he was abused by the Basij who swore at him and prevented him from moving freely.

6. On 2 October, 2014 a delegate of the first respondent refused to grant the applicant the visa. The applicant applied for a review of that decision by a refugee review tribunal (the role of which has now been usurped by the Administrative Appeals Tribunal).  The tribunal determined that it could not decide the application in the applicant’s favour on the material before it and so invited the applicant to attend a hearing to present evidence and make submissions in support of his application.  That hearing occurred on 29 October, 2015.  Before the hearing, the applicant provided an additional statutory declaration expanding on his claims.  His representatives made written submissions in support of his review.  At the review hearing, the applicant was represented by an agent and had the assistance of an interpreter.

The Tribunal’s decision

1. On 5 November, 2015 the tribunal decided to affirm the decision not to grant the applicant a protection visa.  The tribunal correctly and accurately identified the applicant’s claims.  The applicant does not contend to the contrary.

2. The tribunal found that the applicant was recognised as a citizen of Iran.  It did not accept that the applicant was a stateless Faili Kurd, although it accepted that he was a Faili Kurd.  To reach this conclusion, the tribunal reasoned that the applicant’s claim about how he travelled through Tehran Airport when he left Iran was implausible.  The tribunal said:

   67.    The Tribunal did not find the applicant’s account of travelling through Tehran airport to be plausible. The applicant’s claims at the hearing were squarely that he had obtained a forged passport. In his initial account to the Tribunal about obtaining a forged passport, he stated that he gave his name and photograph to the passport forger. The clear implication is that the passport he was provided with contained his name and photograph, as it would be otherwise unnecessary to provide his name and photograph.

   68.    However, the independent information indicates that it is not possible to exit Tehran airport on a forged or false passport without bribery. This is because the security checks include checking the passport details against records on the computer system, which includes a photograph of the passport holder. The DFAT report at paragraph 53 states that “[t]he data of the passport holder appears on the screen, together with a photograph of the traveller”. A forged passport would either not appear on the computer system at all, or would not correspond with the details contained on the computer system. In particular, a false passport containing the applicant’s name and photograph would not correspond with details on the computer system, as the computer system would not contain either the applicant’s name or his photograph.

   69.    The Tribunal did not find the applicant’s explanation that his photograph looks like thousands of others to be plausible, or his later suggestion that the passport contained someone else’s details. Even if his photograph did look like thousands of others, there would still be the issue of his name not appearing on the computer system. The Tribunal does not accept that the passport used someone else’s details, as this is inconsistent with his initial claims to have given the forger his name and photograph.

   70.    The Tribunal does not consider the applicant’s claim that the false passport contained an incorrect date of birth to assist his case. This presupposes that the other details contained on the computer system were correct other than his date of birth. The Tribunal has found that it was implausible for the applicant’s name and photograph to have appeared on the computer system unless his passport was legitimately issued. The Tribunal also does not accept the applicant’s claims that he was unable to read the date of birth on the passport due to his illiteracy, noting that he was educated to grade 5 in primary school and that a date     of birth requires only basic reading skills. The applicant also claimed to be able to read a translation of the refugee and complementary protection definitions prior to the hearing.

   71.    The Tribunal does not accept that a bribe was paid to airport officials. Despite being asked many times, the applicant did not claim to have paid a bribe himself. He alluded to the people smuggler or the passport forger as having possibly paid a bribe. However, when asked, he did not claim to have been provided with specific instructions as to how to pass through Tehran airport. If a bribe had been paid on the applicant’s behalf to one or more airport officials, the applicant would need to have been provided with instructions to ensure that he was dealt with by that official and not another official. The Tribunal does not consider it plausible that bribes on the applicant’s behalf would have been paid to every immigration official at Tehran airport.

   72.    In these circumstances, the Tribunal finds that the applicant left Iran on a legitimately issued passport in his name. The necessary corollary of having a legitimately issued Iranian passport in his name is that the applicant is recognised by the Iranian authorities as being an Iranian citizen.

   73.    The Tribunal therefore does not accept the applicant’s claims that he is a stateless Faili Kurd…

3. Because the tribunal did not accept that the applicant was a stateless Kurd the tribunal did not accept the applicant’s claims to have experienced difficulties as a stateless Faili Kurd.  It rejected the applicant’s claims that his parents and brother experienced persecution as stateless Faili Kurds as well.  The tribunal went on to record:

   75. The Tribunal accepts that the applicant is a Faili Kurd. The independent information indicates that undocumented Faili Kurds may experience some difficulties, but the Tribunal has found that the applicant is recognised as an Iranian citizen. While the independent information does not in terms rule out harm to documented Faili Kurds on the basis of their Kurdish identity, the information is that there is considerable sympathy for Faili Kurds in Ilam (where the applicant lived prior to coming to Australia) and that racially motivated violence in Iran generally is rare. Based on this information, the Tribunal finds that the risk of harm to the applicant in Iran simply on the basis of his being a Faili Kurd in the reasonably foreseeable future is remote.

4. The tribunal determined that, having regard to country information before the tribunal, it did not accept there to be a real chance that the applicant would be imputed with an anti-regime political opinion and subjected to serious harm by the Iranian authorities on the basis of his profile as a person who has unsuccessfully sought asylum in Australia or as a person who is returning from a western country if he returns to Iran, now or in the reasonably foreseeable future.  The tribunal did not accept that the applicant has a well-founded fear of persecution on the basis that he is a member of the particular social groups, “failed asylum seekers” or “returnees from a western country” if he returns to Iran, now or in the reasonably foreseeable future.

5. The tribunal also considered the fact that the applicant no longer believed in Islam, but noted that he did not claim to be an apostate or to have converted to any other religion.  It did not accept that the applicant’s religious views would come to the attention of the Iranian authorities in the future and did not accept that there was a real chance or real risk that the applicant would be harmed for reasons connected with his religious beliefs.

6. The tribunal did not accept that the applicant will be imputed with political opinions that are anti-Islamic or opposed to the Iranian regime on the basis of his religious beliefs.

7. The tribunal considered the applicant’s claims to complementary protection and determined that he did not engage s.36(2)(aa) of the Act. In particular, because it has not accepted that the applicant was a stateless or undocumented individual, the tribunal was not satisfied that the applicant would be denied access to services or employment.

8. Ultimately, the tribunal found that the applicant did not satisfy the criterion set out in s.36(2)(a) or s.36(2)(aa) of the Act.

The grounds of review

1. The initial application filed by the applicant proposed eight grounds of review.  In the amended application filed on 30 March, 2016 three grounds were abandoned and five remained.  The applicant’s submissions addressed grounds one, three and five.  Grounds two and four appeared to have been abandoned.  The way in which the applicant’s solicitor conducted the argument in support of the applicant’s case confirmed that was so. 

2. I note the first respondent’s submission that the proposed grounds are not particularised and are formulaic in nature.  The failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60]; upheld on appeal in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 at [17] per Siopis J. At a reasonably impressionistic level then, it is difficult to see that the grounds of review have any reasonable prospects of success without particularisation. Nonetheless, I will deal with each ground of review separately.

Ground 1

1. This ground is in the following terms:

   1. The decision by the Second Respondent involved an error of law, whether or not the error appears on the record of the decision.

2. This ground purports to attack the findings made by the tribunal about the applicant’s claim that he used a false passport to exit Iran.  He had claimed that:

   a)he had paid a passport forger 5.5 million tomans to obtain a false passport;

   b)he had paid another person referred to as a “people smuggler” 20.5 million tomans to arrange his travel all the way to Australia.

3. The tribunal questioned the applicant about these claims.  He said that his passport had been checked at the airport but he did not know how many times.  They were suspicious of his date of birth on the passport but they let him through anyway.  The tribunal asked the applicant if he had paid a bribe to any official at the airport and he said that he had made the payments I have set out above.  Those people may have paid a bribe to the airport officials.

4. He told the tribunal that he had not received any particular instructions from either person he had paid about what he should do at the airport when he left Iran.  He was given no specific instructions about who to contact or who to approach at the airport.

5. The tribunal reasoned that:

   a)in the absence of specific instructions from the people smuggler, it was implausible that the people smuggler would have paid a bribe on his behalf. The people smuggler would have had to provide him with instructions as to which official to approach, and what time that person would be working at a particular station;

   b)in the absence of a bribe to a particular official to assist him to pass through the airport, it was likely that the applicant left Iran on a legitimately issued passport.  It was implausible that the applicant or the people smuggler would have paid bribes to all officials working at the airport;

   c)if he left on a legitimately issued passport, it was likely that the applicant was an Iranian citizen and not a stateless Faili Kurd.

6. The applicant argues that it is apparent from the tribunal’s reasons that it dealt “extensively with its reasons with the question of a forged or false passport”.  However, the applicant submits that the tribunal “artificially” limited its enquiry to bribes being paid at the airport but not to public border officials, or “government officials” in Tehran who could issue a “non-genuine” passport that would attract no enquiry at the airport and hence the tribunal did not carry out its task.

7. The applicant points out that there was information before the tribunal to suggest that public officials in Iran are corrupt and in particular a report from the Immigration and Refugee Board of Canada made in 2006.  In that report appears comments to the effect: “Based on consultations with UNHCR’s office in Tehran, a UNHCR official provided the following information in 31 March 2006 correspondence:

   It may happen in practice that individuals who have fraudulent travel documents, or outstanding financial, military or legal obligations, or who are sought or under suspicion by the government for political reasons resort to pay[ing] bribes to Iranian border officials to pass through the control system unharmed. The higher the risk, the more they pay.

1. However, the tribunal expressly referred to this information and other information available to the tribunal (footnotes omitted):

   56.    In May 2005, DFAT advised that airport authorities had “no discretion to allow a person with a false passport or on a blacklist to leave Iran. Bribery is common in Iran and it is possible bribes may be paid to avoid arrest at the airport. However, it is unlikely that a bribe could convince and [sic] airport official to allow a person on a blacklist or without a valid passport to board an international flight.”

   57.    A report from April 2006 indicates that a UNHCR official in Tehran had “stated that while counterfeit Iranian passports can be purchased rather easily on the black market with prices fluctuating ‘according to the quality of the counterfeit work,’ authorities are generally adept at identifying these documents via a ‘double check’ mechanism in the law enforcement database which tracks passport issuance”. A new passport application system was created in March 2005, and the director general of the Iranian Police Passport Department noted in August 2005 that there had been no reports of forged passports since the commencement of the new system. An earlier 2003 Citizenship and Immigration Canada Passports and Travel Documents training manual indicated that “[i]n the past, forged or fraudulent Iranian passports have been abundantly encountered”.

   58.    In March 2006, a UNHCR official, based on consultations with UNHCR personnel in Tehran, indicated that passport and documentation verification at departure points at airports and land borders was carried out in the last phase of exit procedure. At airports, after the checking of tickets and delivery of luggage to the airline and prior to entry to the departure waiting area, passports were checked by a Disciplinary Forces officer who verified in the NAJA [law enforcement] database whether the passport was fake and whether the person before the officer was the same person as in the passport. Passport verification was carried out in the same way at land borders. A UNHCR official also indicated that individuals with fraudulent travel documents, or outstanding financial, legal or military obligations, or who were sought by the government for political reasons might “resort to pay[ing] bribes to the Iranian border officials to pass through the control system unharmed. The higher the risk, the more they pay.” The UNHCR official noted that bribery was more common in the south- eastern provinces of Baluchistan and Sistan. An earlier June 2001 report, which claimed that bribery of airport officials to facilitate exit might have been possible in individual cases, also stated that departure procedures were “still such that it would be highly improbable that anyone with a forged passport in which name and number do not tally would be able to leave the country.”

2. The applicant also argues that the tribunal did not give proper consideration to whether “genuine” passports could be purchased for a fee from public border officials or “government officials”.  He refers to an immigration appeal in the New Zealand Refugee Status Appeals Authority (given in 2008) which involved, apparently, the continuing recognition of the appellant in that case as a refugee based upon the acceptance of the claim that the appellant’s father paid a bribe to a “friend” in the appropriate government office to clear any entry on a “black list’’ and to create a false date of lawful departure.  As I pointed out in argument and as was conceded by the solicitor for the applicant, that case was different to the present in that there was evidence of the payment of the bribe to the friend in the appropriate government office.  Here there is no such evidence.

3. The applicant argues that the tribunal appears to have given no consideration to the proposition that the payment to the forger, or part of it, might have been paid as a bribe to a “public border official” (as he had the name and a photograph of the applicant) or a “government official” as was put in oral submissions, which resulted in the applicant receiving a government issued, but nonetheless fake, passport which gave him trouble-free passage through the airport.

4. It is clear that the tribunal considered the proposition that the forger may have bribed an official so as to assist the applicant’s passage through the airport.  That was the point of the tribunal’s questions about whether the applicant had been given any specific instructions about how to pass through the airport on his departure and whether any particular official was identified for the applicant to contact.

5. But the applicant’s point now is broader than that.  The argument now is that a government official was probably bribed to issue the applicant a government issued, but fake passport, which would not have necessitated the applicant making contact with any particular person at the airport.  The seemingly genuine passport would have been enough on its own to achieve the desired purpose.

6. However, there are two difficulties with this argument.  The first is that it was never made to the tribunal by the applicant or his representative.  It is not an argument which immediately arises on the material that was before the tribunal.  It seems to me that the tribunal also considered the argument when it considered the information before it about exit procedures and the detection mechanisms employed at points of departure from Iran.

7. The applicant drew my attention to Prassad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and the proposition that a decision maker in that case had acted unreasonably when it was or should have been obvious that material that was at the crux of the decision was readily available and the decision maker had made no attempt to obtain that information. The relevance of that proposition here, however, is not clear. Save for narrowly confined circumstances, the tribunal does not have a duty to inquire, but rather it has a duty to review: Minister for Immigration v SZIAI (2009) 259 ALR 429 at [24].

8. Moreover, it is insufficient to simply identify what is said to be an “obvious enquiry” about what is alleged to be a “critical fact, the existence of which is easily ascertained” unless it is also demonstrated that there is a sufficient link between that failure and the outcome of the decision under review so as to constitute a failure to review.  In SZIAI (above) the plurality said (my emphasis):

   25. … It is not necessary to explore these questions of principle in this case.

   26. The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

9. To succeed on the argument that the tribunal had failed to conduct a review as it was required to do because it did not make any attempt to obtain information said to have been obviously at the crux of the decision and which was readily available, it is necessary for the applicant to demonstrate a factual basis for the conclusion that the failure to obtain that information constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable to support a finding that the tribunal’s decision was infected by jurisdictional error. 

10. No particular enquiry that should have been made by the tribunal is obvious from the applicant’s submissions.  The tribunal did not have a duty to make further enquiries merely because it could not be satisfied on the basis of material presented by the applicant that his claims ought to be accepted.

11. In my view, ground one of the amended application for review does not reveal a reasonably arguable case of jurisdictional error.

Grounds 3 and 5

1. These grounds (five is numbered as eight) are as follows:

   3. There was no evidence or other material to justify the making of the decision by the Second Respondent or the Second Respondent relied on evidence which did not exist.

   8. The Second Respondent exercised power in such a way that the result of the exercise of power is uncertain.

2. Despite the grounds of review to be advanced by the applicant set out above, the applicant’s submissions did not appear to address those matters.  Rather, the applicant’s submissions suggested that the tribunal had made an error in the way in which it dealt with the applicant’s claim to complementary protection.

3. The applicant points out that the complementary protection claim is dealt with by the tribunal as follows:

   a)the applicant is an Iranian citizen and there is no risk of persecution as he is not stateless;

   b)the risk of harm to the applicant in Iran simply on the basis of being a Faili Kurd in the reasonably foreseeable future is remote; and

   c)the applicant has no well-founded fear of persecution on the basis that he is a member of a particular social group if he returns to Iran now or in the reasonably foreseeable future.

4. The applicant contends that the tribunal “had not considered whether any risks not held to amount to persecution might amount to “significant harm” for the purposes of Complementary Protection under s.36(2)(aa)” and the tribunal did not “engage with the language of s.36(2)(2A) of the Act regarding “significant harm”. It was submitted that the tribunal “has merged the tests for refugee status with the tests for Complementary Protection”.

5. The applicant argues that the tribunal did not take account of the evidence that an unregistered Faili Kurd has no right to work, that pay and working conditions are often significantly less than for Iranians doing the same work and that accommodation and government services such as medical care and education are likely to be restricted.

6. However, the central plank of the tribunal’s decision was its findings that the applicant was a citizen of Iran and not stateless.  It was satisfied that he was a Faili Kurd, but not an “undocumented” or “stateless” Faili Kurd.  Consequently, the tribunal rejected, as it was entitled to do, that there was a real chance of the applicant suffering the types of serious harm identified by the applicant that would befall a stateless Faili Kurd in Iran.  It considered the applicant’s claims which were made on the basis that he was a stateless Faili Kurd.  However, having rejected the proposition that the applicant was indeed a stateless Faili Kurd, the substance of the applicant’s claims fell away.

7. The tribunal’s consideration of the applicant’s claim to complementary protection was limited to a few paragraphs of its reasons for judgment.  In paragraphs 16 – 18 of its reasons, the tribunal set out the relevant law relating to complementary protection.  Then, in paragraph 79 the tribunal said:

   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). In particular, because it has not accepted that the applicant is a stateless or undocumented individual, the Tribunal is not satisfied that the applicant would be denied access to services or employment.

8. The applicant identified no particular harm to which he would be subjected if he returned to Iran, which would be inflicted upon him irrespective of his status as a stateless Faili Kurd.  That is to say, it was the applicant’s case that the harm that he feared would be inflicted upon him would be inflicted because he was a stateless Faili Kurd and because he had left the country illegally.

9. I accept the first respondent’s submissions that there was no need, given the tribunal’s earlier findings that the risk of harm to the applicant in Iran simply on the basis of his being a Faili Kurd in the reasonably foreseeable future is remote, for it to consider whether or not the claimed harm might amount to “significant harm” for the purposes of the complementary protection claim.

10. In my view, these proposed grounds of review do not reveal any reasonably arguable claim of jurisdictional error.

Conclusion

1. The applicant does not establish that the grounds of review he wishes to pursue are reasonably arguable, even at an impressionistic level.  In my view the proposed grounds of review are so devoid of merit that it is not in the interests of the administration of justice to make an order extending the time within which the applicant might commence his proposed judicial review application.

2. The amended application filed on 30 March, 3015 must be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  21 December 2016