DNJ18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1479
•10 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DNJ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1479
File number: MLG 1957 of 2018 Judgment of: JUDGE GOSTENCNIK Date of judgment: 10 September 2025 Catchwords: MIGRATION – temporary protection (class XD) (subclass 785) visa – review of decision of delegate of the respondent – judicial review – application for extension of time under s 477(2) of the Migration Act 1958 (Cth) (Act) – where delegate found applicant was excluded fast track review applicant under s 5(1) of the Act – where delegate found the applicant provided bogus documents – applicant failed to provide reasonable explanation for providing bogus documents – whether delegate’s decision was illogical, irrational or unreasonable – admissibility of evidence – where evidence directed to questions of fact – evidence not admissible – merits of proposed application weak – not in the interests of justice to extend time –
application for extension of time refusedLegislation: Migration Act 1958 (Cth) ss 5(1) (definition of ‘bogus document’), 5(1) (definition of ‘excluded fast track review applicant’ para (a)(vi)), 36(2)(a), 36(2)(aa), 65, 91WA, 476, 477, 477(1), 477(2), 477(2)(b), 477A(2), 477A(2)(b) Cases cited: Attorney-General (NSW) v Quin [1990] HCA 21, 170 CLR 1
BNGP v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 111, 298 FCR 609
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, 263 FCR 292
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, 258 FCR 175
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344
Insurance Australia Ltd (t/as NRMA) v Howard [2019] NSWSC 224
Manna v Minister for Immigration and Citizenship [2013] FCA 400
McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93, 251 FCR 23
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611
Minister for Immigration, Citizenship and Multicultural Affairs v CFV17 [2025] FCA 613
MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912
Parker v The Queen [2002] FCAFC 133
Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
SZMNO v Minister for Immigration and Citizenship [2009] FCA 797
SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, 135 ALD 17
SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 6 August 2025 Date of hearing: 7 August 2025 Place: Melbourne Counsel for the Applicant: Ms T Baw Solicitors for the Applicant: Alkafaji Lawyers Counsel for the Respondent: Mr K Sypott Solicitors for the Respondent: Australian Government Solicitor ORDERS
MLG 1957 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DNJ18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The applicant’s application under s 477(2) of the Migration Act 1958 (Cth) to extend the 35-day period within which an application for judicial review may be made is refused.
2.The applicant pay the respondent’s costs fixed in the sum of $4,189.38.
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 Gostencnik
INTRODUCTION
The applicant applies for an order under s 477(2) of the Migration Act 1958 (Cth) (Act)[1] extending the time within which an application for judicial review of a migration decision may be made. The proposed application concerns a decision of a delegate of the Minister for Home Affairs made on 23 March 2018 by which the delegate refused to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa (refusal decision) and determined that the applicant was an excluded fast track review applicant within the meaning of s 5(1) of the Act (EFTRA decision). The applicant was found to be an excluded fast track review applicant because the delegate concluded the applicant provided a “bogus document” to an officer of the Department without reasonable explanation. By reason of that finding, the applicant was prevented from the grant of a Temporary Protection visa. The applicant’s proposed challenge is to the EFTRA decision which is underpinned by the “bogus documents” conclusion.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
Section 477(1) of the Act requires that an application for review of a migration decision (under s 476) be lodged within 35 days of that decision. The applicant applied for judicial review of the delegate’s decision on 6 July 2018, and so the application was made about 70 days after the prescribed period expired.
The parties agreed, and I accepted, that I would determine both the extension of time application, and if time is extended, the substantive judicial review application.
For the reasons which follow I have decided to refuse the application for an order extending the time within which a judicial review application may be made.
BACKGROUND
The applicant is an Iraqi national who arrived in Australia on 14 March 2013 as an ‘unauthorised maritime arrival’. On 8 February 2016 the Department of Immigration and Border Protection wrote to the applicant, inviting him to apply for a visa. On 15 July 2016, the applicant applied for a Temporary Protection visa, receipt of which was acknowledged by the Department on 25 July 2016.
The applicant’s protection claims centred around a fear of harm from his girlfriend’s family, members of whom the applicant alleges threatened him with serious harm and death if he did not stop contact with his girlfriend. The applicant claimed he was attacked and pursued by her family members.
By letter on 21 September 2017, the Department of Home Affairs advised the applicant that it had adverse information which might form the reason or part of the reasons for the decision in his application and invited the applicant to comment on that information. The adverse information was to the effect that a document examiner had assessed the applicant’s Iraqi National Identification card (also referred to hereafter as ‘Personal Identification card’ or ‘Personal Identity card’) and determined:
The document's manufacturing or issuing security characteristics are fraudulently compromised or personal data is fraudulently altered. Therefore it is my opinion that this is a legitimately manufactured document that has been fraudulently altered.
The letter informed the applicant of the consequences of a determination that he had provided a bogus document, namely that s 91WA of the Act would preclude him from being granted a protection visa, unless a delegate was satisfied there was a reasonable explanation for the applicant providing the bogus document. The letter also informed the applicant that if his claims were refused and the delegate found he had provided a bogus document, he would be an ‘excluded fast track review applicant’ within the meaning of that term under s 5(1) (definition of ‘excluded fast track review applicant’ para (a)(vi)) of the Act.
On 10 October 2017, the applicant responded to the invitation to comment, submitting that his National Identification card was not bogus, and attaching a copy of an Iraqi Nationality Certificate bearing the name [redacted] and a date of birth of [redacted], together with copies of the Iraqi National Identification cards and Personal Identity cards of his mother and father.
On 13 October 2017, the Department wrote to the applicant advising him that:
After consideration of your comments in response to a letter inviting you to comment on 'relevant information' dated 21 September 2017, a delegate of the Minister reasonably suspects that the Iraqi National Identification card that you provided as evidence of your identity, nationality or citizenship has been altered by a person who does not have the authority to do so and therefore meets the definition of bogus document . . .
The 13 October 2017 correspondence invited the applicant to give a reasonable explanation for the provision of a bogus document, to provide documentary evidence of his identity, nationality or citizenship, or to take reasonable steps to provide such evidence. The applicant responded to that further invitation to comment on 1 November 2017, maintaining that the documents he had provided were genuine, and noting that he would obtain a letter from the Iraqi Embassy to support his claim. On 25 January 2018, the applicant provided a copy of a letter from the Iraqi Embassy dated 23 January 2018, which letter indicated the identity number for [redacted], born [redacted], had been verified by the issuing authority in Baghdad.
DELEGATE’S DECISION
On 23 March 2018, the delegate determined that the applicant was an ‘excluded fast track applicant’ within the meaning of s 5(1) of the Act and refused to grant the applicant a visa under s 65 of the Act. The delegate found that the Iraqi National Identification card (referred to in the delegate’s decision interchangeably as ‘Iraqi National Identification card’, ‘Iraqi Personal Identity card’, ‘Iraqi Personal Identification card’ and ‘Personal Identity card’) was a bogus document under s 5(1), noting the internal department assessment had found the document had been fraudulently altered. The delegate said that she had no reason to doubt that the additional documents provided by the applicant were genuine but was concerned that the applicant’s Iraqi Nationality Certificate had a different name to that which the applicant had consistently maintained. The delegate noted that the visa application contained a statement that the applicant had not been known by any other names, and that the applicant had confirmed that at the interview. The delegate pointed out that the applicant’s two identity documents bore different names, and that the surname [redacted] had been recorded for each of the applicant’s parents in his visa application, contrary to the names shown on their Iraqi Nationality Certificates and Iraqi Identity cards.
In making the decision, the delegate had regard to the Departmental Naming Conventions Guide (Guide) and the information it contained on Arabic naming conventions, noting that in accordance with the Nasab naming convention (the naming convention adhered to by the applicant and his family) – Arabic names reflect the father’s lineage. Relying on the Guide, the delegate found that the names on the applicant’s Iraqi Nationality Certificate and the identity documents of the applicant’s parents were consistent with the Nasab convention, but found that the [redacted] surname which appeared in the applicant’s Iraqi National Identification card did not appear in any of the subsequently produced documents. The delegate considered that even if the surname [redacted] was a tribal name, that did not explain why the name did not appear on the identification documents of the applicant’s father.
The delegate referred to the applicant’s claim in his visa application to have a brother with the surname [redacted] who was an Australian citizen, noting that during his interview with the department the applicant had denied that his brother was known by any other names. The delegate noted the applicant had, during that interview, denied knowing any man named [reacted] but he subsequently accepted that that person was his brother. The delegate cross-referenced the applicant’s brother’s names with the Nasab naming convention and determined that the name was consistent with the convention, and the name of the applicant’s father.
The delegate afforded little significance to the letter from the Iraqi Embassy and concluded the applicant had attempted to deliberately conceal his identity and had not provided any reasonable explanation for providing what was determined to be a bogus document. On that basis, the delegate found s 91WA of the Act was engaged, and the applicant was precluded from being granted the visa.
The delegate went on to consider whether the applicant nonetheless satisfied any of the criteria for the grant of a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act at length, ultimately determining that the applicant was not a person in respect of whom Australia had protection obligations.
The delegate also found the applicant was an excluded fast track review applicant. The delegate noted that the Iraqi National Identification card the applicant provided to an officer of the Department in support of his application for a protection visa on 20 March 2017 as evidence of his identity, nationality or citizenship was assessed by a document examiner, who found that the document’s manufacturing or issuing security characteristics were fraudulently compromised or personal data was fraudulently altered. The examiner opined that the impugned identity document was a legitimately manufactured document which had been fraudulently altered. After considering the applicant’s response to the concern that the Iraqi National Identification card was a bogus document, the delegate concluded the impugned document was bogus and that the applicant had not provided a reasonable explanation for presenting a bogus document to an officer of the Department.
CONSIDERATION
The applicant applied for judicial review of the delegate’s decision on 6 July 2018. As the application was made outside the time prescribed, the applicant also applied for an extension of the time within which his application for review of a migration decision may be made under s 477 of the Act. The applicant’s amended application lodged on 16 July 2025 sets out five paragraphs in support of his extension of time application, which appear directed to providing an explanation for the delay, as follows:
1.The Applicant due to his limited English language skills and lack of legal advice was unaware his appeal to Federal Circuit Court was required within a limited timeframe.
2.The Applicant moved from Queensland to Victoria and had failed to inform the Department of Home Affairs of his change of address. He was made aware of the decision some weeks after the notification by the department was sent.
3.The appeal is made outside of the prescribed timeframe by about 3 months and 13 days.
4.The applicant has sought to make the appeal as soon as he has been made aware.
5.The applicant relies on his affidavit sworn on 6-7-2018 in which he explains the delays.
Section 477(1) of the Act imposes a limitation period of 35-days within which an application may be brought. Section 477(2) allows the Court, by order, to extend the 35-day period as the Court considers appropriate, if the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ explained the exercise of the Court’s discretion under s 477(2) of the Act, by reference to the corresponding provision for applications made to the Federal Court of Australia in s 477A(2). In short compass, the focus of s 477A(2)(b) (and so also s 477(2)(b)) is not on the interests of the applicant, but the broader interests of the administration of justice. This allows the Court to consider “a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application”: Tu’uta Katoa at [12]. Their Honours noted that the level of satisfaction that must be reached is not low because the Court “must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice”: at [12]. In this regard, their Honours noted that it is appropriate to consider the well-established principles guiding decisions whether to extend time in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186, 3 FCR 344 at 348–349: Tu’uta Katoa at [13].
The non-exhaustive principles set out in Hunter Valley to which reference in Tu’uta Katoa is made, were cited with approval in Parker v The Queen [2002] FCAFC 133 at [6] as follows:
1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and
5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.
See also Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]–[36]; SZTRY v Minister for Immigration & Border Protection [2015] FCAFC 86 at [6]; BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33]; Porter v Ghasemi [2021] FCAFC 144, 286 FCR 556 at 566 [40].
In determining what is necessary in the interests of the administration of justice for the purposes of s 477(2)(b) of the Act, it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level” because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. But there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, where a delay in making an application is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. And in other cases, the proposed ground of review may be hopeless, but it may be necessary to examine the proposed application in some detail to reach that conclusion. In cases of that kind, a proper exercise of the power conferred by s 477(2) will not require the Court to confine its consideration of the merits to an assessment of that which is “reasonably arguable” or some similar standard. The broad power in s 477(2) does not prevent the Court from undertaking a detailed examination of the merits of the application: see discussion in Tu’uta Katoa at [17]–[18].
Extent and reason for the delay
The respondent says that the applicant’s delay in seeking judicial review – 70 days – is very significant. The applicant does not subscribe to that characterisation but accepts the delay is moderately lengthy. In relative terms the period of delay is lengthy since the delay is twice that of the 35-day period allowed for a regular application. In actual terms, a 70-day delay is not insignificant, and I consider the period of the delay is aptly described as significant in the sense that it is sufficiently great or important to be worthy of attention, and is a matter that weighs against the applicant.
By the applicant’s affidavit affirmed on 6 July 2018, the applicant deposes to some circumstances said to explain his delay in making the application. First, he says that he was moving from Brisbane to Melbourne at or around the time the delegate’s decision was posted to his Brisbane residence, and that his former housemate did not tell him that he had received mail for about two or three weeks. The applicant says that once he became aware he had received mail, he asked his former housemate to send the mail to his Melbourne address. Second, the applicant says that when he received the delegate’s decision he was not then represented by a lawyer, he did not understand the material sent to him because of his poor command of English and he was unaware of his rights to seek judicial review, or the time frame attached. Third, the applicant says that his limited financial resources contributed to a delay in making his application, because he took additional time to gather funds to afford legal assistance, to which he had been referred by a migration agent he had consulted in about mid-June 2018.
The applicant accepted that the need for the information to be translated, that he was an unrepresented litigant, and that he was ignorant of the 35-day time limit, without more, will not provide an acceptable explanation for the delay. But the applicant submits that once he was made aware of the delegate’s decision, he took steps to inform himself by seeking the assistance of a migration agent and ultimately a lawyer, at which time he became aware of the 35-day time limit, and that he did all that he could to ensure that the application was promptly filed – presumably by gathering the funds necessary to pay the lawyers he had consulted to undertake the work of preparing and filing the application and associated affidavits.
The explanation proffered by the applicant, even when coloured by the gloss added to the explanation by the applicant’s oral submissions, does not satisfactorily explain the delay. The delegate decided the visa application on 23 March 2018 and so the 35-day period elapsed at the end of 27 April 2018. The notification letter attaching the decision is dated 23 March 2018, and so the applicant was taken to have received it seven working days after the date of the letter – 1 April 2018. The applicant says he was advised by his former housemate about the letter approximately two to three weeks after it was sent. Assuming it was sent on the same day as the date the letter bears, the applicant knew it had been received by around 13 April 2018 and, allowing for postage to Melbourne, would likely have received the notification letter and delegate’s decision by around 22 April 2018. The applicant said that upon receipt of the letter, he understood that his visa application had been rejected. This ought to have been enough to prompt more urgency in enquiring about his rights. As at around 22 April 2018, the applicant still had time to make a regular application. The delay between 28 April 2018 and mid-June 2018 when he consulted a migration agent, is not satisfactorily explained. Vague reference in the affidavit to approaching an unspecified number of unidentified people with unarticulated queries prompting unarticulated responses which were different in ways that are not explained, and which confused the applicant also in ways not explained, simply does not cut it. Nor is there any detail provided about when the applicant consulted a lawyer, from whom he borrowed funds, and how much he borrowed.
The respondent is therefore correct to point out that the period in which the notification letter was in the custody of the applicant’s former housemate, or in the mail to the applicant’s new address, does not explain the delay, or at least not the entire period. And as the applicant properly conceded, neither his ignorance of the time limit in which to seek judicial review nor his lack of access to legal assistance provide an acceptable explanation for the delay: SZSDA v Minister for Immigration and Citizenship [2012] FCA 1319, 135 ALD 17 at [38]; Manna v Minister for Immigration and Citizenship [2013] FCA 400 at [17]. To similar effect, a lack of financial resources to pay lawyers to prepare an application for judicial review is also insufficient in explaining the delay: SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24]–[26]. As the entire period of the delay is not satisfactorily explained, this also weighs against the applicant.
Prejudice
The respondent accepts that there is little prejudice occasioned to him by the grant of an extension of time that cannot be remedied by a costs order, but notes that the absence of prejudice is insufficient to warrant the grant of an extension of time: SZTRY at [6]. In the circumstances the absence of prejudice is a matter that weighs neutrally.
Merits
The applicant contends that prejudice, and the extent of and his explanation for the delay, would not result in a refusal of the extension of time application when considered in the context of the merits of the proposed judicial review application. By the earlier mentioned amended judicial review application, the applicant advances two grounds on which he alleges the decision is attended by jurisdictional error:
Ground 1
The delegate of the Respondent (the Delegate) failed to comply with s 57(2) of the Migration Act 1958 (Cth)
Particulars
(a) The Naming Conventions Guide, Australia: Department of Immigration and Citizenship – Identity Branch, 01 November 2009 (the Guide), was relevant information pursuant to s 57(1).
(b) The Delegate failed to giving (sic) particulars of that relevant information and invite the Applicant to comment on it, in breach of s 57(2).
Ground 2
The Delegate erred by making unwarranted assumptions, unsupported by probative evidence, which led to material findings that were illogical, irrational or unreasonable.
Particulars
(a) The Delegate made the unwarranted assumption that that (sic) both an Iraqi Personal ID Card and an Iraqi Nationality Certificate would have fields that would record a person’s surname on that document.
(b) The personal assumption of the Delegate is contradicted by country information. Only an Iraqi Personal ID Card provides a field for a surname.
(c)The Delegate made the unwarranted assumption that a surname in the Arabic naming convention has the same significance as it does in the western naming convention. Country information indicated that in the relevant naming convention, the surname is optional.
(d)That personal assumption of the Delegate is inconsistent with the evidence, including the Guide.
(e)In the circumstances, the conclusion of the Delegate that the Applicant has provided a bogus document is unreasonable, irrational, or illogical and/or unsupported by probative evidence.
Ground 1
At the hearing, the applicant, through his counsel, told the Court that ground 1 was no longer pressed.
Ground 2
By ground 2, the applicant contends that the delegate erred by making unwarranted assumptions, unsupported by probative evidence, which led the delegate to make material findings that were illogical, irrational or unreasonable. The argument is underpinned in part by the material in three affidavits, the admissibility of which is contested. The parties were content for me to receive the affidavits provisionally, subject to relevance, and to rule on their admissibility in the judgment, after hearing the whole of the parties’ arguments. The three affidavits received on that basis were from: the applicant, affirmed on 16 July 2025 (applicant’s affidavit); Ali Alkafaji, the applicant’s solicitor, sworn on 16 July 2025 (Alkafaji affidavit); and Rita Nehme, a NAATI qualified translator, sworn on 16 July 2025 (Nehme affidavit).
The material in the affidavits is directed to two topics. The Nehme affidavit and the applicant’s affidavit address an alleged translation error in a previous translation, which was provided by the applicant to the delegate, of the applicant’s father’s Personal Identification card. The Alkafaji affidavit is directed to naming conventions, principally that ‘full name’ in Iraq does not necessarily include the surname, and that in Arabic language and culture the surname does not have the same significance as in western culture and the English language.
To recap, in support of his protection visa application, the applicant provided a copy of his Iraqi National Identification card accompanied with an English translation. The card identified the applicant as [redacted]. The card was assessed by a document examiner who opined that the impugned identity card was a legitimately manufactured document which had been fraudulently altered. The impugned identity card also bears a date of birth [redacted] which is different to either of the dates of birth the applicant provided at his entry interview [redacted] and [redacted]. The delegate invited the applicant to comment on the assessment, and in so doing, he maintained the identity card was not bogus and provided copies of the following documents together with their English translations: his father’s Iraqi Nationality Certificate and Iraqi Personal Identification card; his mother’s Iraqi Nationality Certificate and Iraqi Personal Identification card; and his own Iraqi Nationality Certificate. Having considered the applicant’s response, the delegate opined that she reasonably suspected the impugned card had been altered by a person who did not have the authority to do so, and it therefore met the definition of bogus document in 5(1) of the Act. The delegate then invited the applicant to provide a reasonable explanation for providing a bogus document, and to either provide documentary evidence of his identity, nationality or citizenship, or take reasonable steps to provide such evidence. In response the applicant reiterated that he had not provided a bogus document, that he attended the Embassy of Iraq in Canberra on 24 October 2017, contending that: ‘[t]he Embassy ha[d] agreed to complete a letter that w[ould] support [his] claim that [he] ha[d] provided the correct document and not a bogus document’; and that a copy of the letter would be provided within the next two weeks. The applicant subsequently supplied a copy of a letter said to be from the Embassy stating that the Embassy confirmed that: ‘Iraqi 's ID Number [redacted] for [redacted], has been verified by issuing authority Iraq Directorate of Civil status in Baghdad-Iraq’.
The delegate reasoned that she had no information to indicate that the documents provided by the applicant responsive to the invitation were not genuine, but she gave little weight to the Embassy letter because it provided no information to support the applicant’s claims about his identity, and merely confirmed that there was an Iraqi Identification card in the name of [redacted]. The delegate found the applicant had deliberately attempted to conceal his identity and had not provided a reasonable explanation for providing a ‘bogus document’ reinforcing the delegate’s earlier expressed view that she held a reasonable suspicion about the impugned document.
The impugned findings about which the applicant complains are as follows:
·‘it is concerning that the applicant’s Iraqi Nationality Certificate that was subsequently provided bears a different name to what the applicant has consistently maintained his name to be’;
·‘I find it concerning that the two documents that the applicant has provided to support his identity bear different names’;
·‘I note that the applicant also recorded the name [redacted] for his parents in his PV application as well . . . The name [redacted] that the applicant has provided does not appear in any of the subsequently provided identification documents.’
The applicant seeks to call in aid the Alkafaji affidavit for the purposes of making good his complaint about the first two findings noted above. He seeks to rely on his and the Nehme affidavit to make good his complaint about the third finding. The applicant contends that the delegate erred by making two unwarranted assumptions. First, that both an Iraqi Personal Identification card and an Iraqi Nationality Certificate would have fields that would record a person’s surname. Second, that a surname in the Arabic naming convention has the same significance as it does in the western naming convention. The applicant says that there is no evidence the delegate had personal experience with Iraqi identification documents, and no country information in relation to the fields that were expected to be shown on the two different identity documents from Iraq is cited. He says there is also no evidence that the delegate had any personal experience with Iraqi naming conventions, and the delegate only relied on the Guide.
The applicant contends that the Alkafaji affidavit would show that in Arabic language and culture the surname does not have the same significance as in western culture and the English language, and that in response to the field for “Full name”, a surname is not recorded in an Iraqi Nationality Certificate. He therefore contends that adhering to the Iraqi naming conventions as conveyed in the Alkafaj affidavit, in response to the field “Bearer’s Name”, no surname for the applicant, his father, nor his mother was included in their respective Iraqi Nationality Certificates.
Relying on the Nehme Affidavit and the ‘Landinfo Report on Iraq: Travel documents and other identity documents’ annexed thereto and dated 16 December 2015, the applicant contends that the correct English translation of the Iraqi Personal Identification card records a field for a surname, unlike the Iraqi Nationality Certificates. He says there was an error in the translation of the applicant’s father’s Personal Identification card which omitted the field for “Surname”. He says this error is verified by the Nehme affidavit, in which Ms Nehme deposes that for the applicant’s father, in the field ‘Surname’ is recorded [redacted], and for the applicant’s mother it is left blank. In his affidavit, the applicant deposes that he was unaware of the error at the time, because he does not read, understand or write English and no one translated the English translation of his father’s Personal Identification card to him.
The applicant also points out that he provided the subsequent documents in response to a letter inviting him to comment on information that his Personal Identification card was a bogus document and contends he would not have provided those subsequent documents if he thought they would contradict his Personal Identification card. The applicant says that if his father’s Personal Identification card had been correctly translated it would have shown that his surname was also [redacted]. The applicant says that the Guide on which the delegate relied indicates that a family name is optional under the Nasab format and shows that what is important under this format is the father’s name and the grandfather’s name – the father’s lineage, not the family name.
The applicant contends that in all the circumstances, including the Embassy letter which used the surname [redacted], it was legally unreasonable, irrational or illogical for the delegate to:
·make unwarranted assumptions that both the Iraqi Personal Identification card and the Iraqi Nationality Certificate would have fields that would record a person’s surname. He says that finding was unfounded by any probative basis, and contrary to country information; and
·assume that the surname in the Arabic naming convention has the same significance as it does in the western naming convention. He says the Guide indicated that a surname is optional, and so even without the translation error, the delegate was contradicting the Guide to assume that the surname would be recorded in the Iraqi Nationality Certificates.
The role of the Court in conducting judicial review and the circumstances in which new evidence may be admitted in such a review are not in dispute and may be briefly stated. The Court’s supervisory jurisdiction does not go beyond the declaration and enforcement of the law which determines the limits and governs the exercise of an administrative decision-maker’s power. The Court’s jurisdiction does not extend to curing all administrative injustice or error. The merit of any administrative action is for the person or bodies in whom relevant power is reposed, not the Court: Attorney-General (NSW) v Quin [1990] HCA 21, 170 CLR 1 at 35–36. It is because of the nature of the Court’s judicial review jurisdiction that, except in exceptional cases, fresh or new evidence which was not before the decision-maker whose decision is the subject of review is not relevant, and so not admissible, and there is danger in acceding to a request to admit further evidence on review as the court will necessarily need to revisit findings of fact. The admission of new evidence in exceptional cases may be permitted where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]–[11]. But fresh evidence should not be admitted for the purposes of making factual findings which contradict those made by an administrative decision-maker because this involves the Court engaging in impermissible merits review: Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93, 251 FCR 23 at [55]. And where the ground of review is that the decision-maker’s reasons were legally unreasonable or illogical, there will rarely (if ever) be a basis for receiving further evidence: Minister for Immigration, Citizenship and Multicultural Affairs v CFV17 [2025] FCA 613 at [22].
The three affidavits on which the applicant would seek to rely are not directed to establishing that the impugned findings were illogical or irrational and so legally unreasonable. Instead, they are directed to findings of fact made, or concerns expressed about materials the applicant presents by seeking to undermine those findings or concerns by reference to the new affidavit material, and so urges that a different finding should have been made based on the material in the three affidavits. I therefore agree with the respondent that the three affidavits plainly fall foul of the limitation on the role of the Court. They seek not to make good a contention that raises a question of law, rather the material is directed to one or more questions of fact. Indeed, the Nehme affidavit is not directed to correcting an alleged error in the translation the applicant provided to the delegate, because that translation is not a direct translation but rather, as the translation document makes clear it is an ‘Extract Translation of Personal Identity Card’. The Nehme affidavit therefore seeks to supplement the evidence, not correct it. The material in the three affidavits is therefore irrelevant to the judicial review application’s sole remaining ground pressed by the applicant and would not be admissible at the final hearing of a substantive application, and so does not inform any assessment of the merits for the purposes of assessing whether an extension of time should be granted. Leave to adduce the affidavit material as evidence is therefore refused.
That which remains of the applicant’s argument as concerns ground 2 are the following contentions. First, that the delegate is said to have made the following unwarranted assumptions:
·that an Iraqi National Identification card and Iraqi Nationality Certificate would have fields that would record a surname;
·that a surname in Arabic naming conventions has the same significance as it does in the western English naming conventions; and
·the Guide on which the delegate relied indicates that a family name is optional under the Nasab Format and so it was irrational for the delegate to assume that the surname [redacted] would appear in the ‘bearer’s name’ segment of the applicant’s Iraqi Nationality Certificate and those of his parents.
Second, irrationality, illogicality or unreasonableness is also evident because the delegate made the impugned bogus document finding despite the letter from the Iraqi Embassy stating that his surname is [redacted].
In considering whether the delegate’s decision or reasoning is illogical, irrational or unreasonable, it must be borne in mind that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality, irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [131], per Crennan and Bell JJ. The threshold for a finding of legal unreasonableness is high: BNGP v Minister for Immigration Citizenship and Multicultural Affairs [2023] FCAFC 111, 298 FCR 609 at 624 [47], [138]. It may also be accepted that in assessing whether the delegate’s arrival at a state of satisfaction about the document is illogical or irrational, the correct approach is to ask whether it was open to the delegate to engage in the process of reasoning in which she engaged and to make the findings made on the material before her: SZMDS at [133]. Sometimes the use of the epithets ‘illogical’ or ‘unreasonable’ are merely emphatic ways of disagreeing with a set of reasons, and so may have no particular legal consequence: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 at 626 [40], and so cautions about conducting merits review under the guise of judicial review must be borne in mind: AG v Quin at 35–6. Furthermore, the delegate’s reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259 at 271–272; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609 at 616. Mere infelicity in the expression of reasons will not have the effect of rendering an administrative decision unreasonable: Insurance Australia Ltd (t/as NRMA) v Howard [2019] NSWSC 224 at [58]–[59].
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J summarised the principles relevant to determining whether a decision is vitiated for jurisdictional error because of illogical or irrational findings of fact or reasoning as follows:
52.As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
. . .
54. . . The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]- [62].
55.Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598-599 [83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]- [15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
Here, as already observed, the applicant complains about irrational or unreasonable reasoning the delegate adopted in arriving at her conclusion that the Iraqi National Identification card the applicant provided to an officer of the Department in support of his application for a protection visa as evidence of his identity, nationality or citizenship was a bogus document. If an administrative decision-maker makes important findings based on unexpressed or unwarranted assumptions – that is, findings not open on the evidence before the decision maker, those findings may be irrational, illogical or unreasonable: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, 258 FCR 175 at [45]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, 263 FCR 292 at [36]; SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [46]–[55]. But a criticism that a decision-maker made unexpressed or unwarranted assumptions is not a freestanding ground of jurisdictional error, rather it is an example or species of irrationality, illogicality or unreasonableness: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [7].
I agree with the respondent’s contention that the delegate’s concern about the absence of the [redacted] surname from the applicant’s Iraqi Nationality Certificate and from the identity documents of his parents did not involve making an assumption without a basis in evidence or reasoning. Relevantly, the delegate reasoned:
I have examined the above subsequent documents that the applicant has provided. I have no information before me to indicate that these documents are not genuine considering that the applicant has also provided identification documents for both of his Iraqi parents as well. Notwithstanding this, it is concerning that the applicant’s Iraqi Nationality Certificate that was subsequently provided bears a different name to what the applicant has consistently maintained his name to be. In all interactions with the Department the applicant has maintained that his name is [redacted], accordingly, he has produced the document in question, namely his Iraqi personal identification card to support this. In addition, the applicant stated in his PV application that he has never been known by any other names, this was confirmed in the PV interview when he was again asked if he was known by any other name to which he stated that he was not.
I find it concerning that the two documents that the applicant has provided to support his identity bear different names. I note that the applicant also recorded the name [redacted] for his parents in his PV application as well. I am concerned that the applicant would neglect to record their names correctly according to their Iraqi identification documents.
Further as per Arabic naming conventions and according to the Nasab Format, the traditional name format for Arabic names reflect the father’s lineage. A given name is usually followed by the father’s name. When I cross referenced this convention with the subsequent identity documents that the applicant provided for himself and his family it supports this format. For example, the applicant’s Iraqi nationality card records his name as [redacted] with the applicant’s father’s name recorded as [redacted]. This consistency is also seen in both the applicant’s fathers and mother’s identity cards. The applicant’s father’s name is recorded as [redacted] with his father’s name recorded as [redacted]. Similarly the applicant’s mother’s identification records her name as [redacted] with her father’s name recorded as [redacted].
The name [redacted] that the applicant has provided does not appear in any of the subsequently provided identification documents. The applicant has not provided any reason as to why these names differ. The applicant was asked during the PV interview where the name [redacted] originated from and he stated that it was his tribal name, however even if I were to accept this, it does not explain why [redacted] was not used in any of his father’s identification documents.
The Nasab naming convention discussed in the Guide provides as follows:
3.2.1 Examples of typical name order
1.The Nasab Format (Patronymic Lineage)—the traditional name format for Arabic names. It reflects the patronymic (father's) lineage and includes one to six lineage names and an optional family name.
Nasab (Patronymic Lineage) format Given name Father's GN (Grandfather's GN) (Great grandfather's GN) (Lineage name) (Lineage name) (Lineage name) (Family name) Ahmad Mohammad Yousif ~ ~ ~ ~ El Abiad Salim Samar Farah Muhsin Amin Abu Qadir ~ ~ 2.The family name format— a modified version of the Nasab format. It reflects the patronymic (father's) lineage but also includes a family name in the final position.
Family name format Given name Father's given name (Grandfather's given name) Family name Faisal (Bin) Abdulaziz (Bin) Abdulrahman El Saudi Mohammad Hussein Mohammad Binali 3.The western format—shows the influence of European naming conventions.
Western format Given Name Middle Name Family Name Omar Jaouad Drissi Antoine ~ Belqasim
It is clear the delegate relied on the Guide and the information it contained about Arabic naming conventions. She observed that in accordance with the Nasab naming convention (the naming convention adhered to by the applicant and his family) – Arabic names reflect the father’s lineage. And relying on the Guide, the delegate found that the names on the applicant’s Iraqi Nationality Certificate and the identity documents of the applicant’s parents were consistent with the Nasab convention, but the delegate found that the [redacted] surname which appeared in the applicant’s Iraqi National Identification card did not appear in any of the subsequently produced documents. The delegate also considered that even if the surname [redacted] was a tribal name, that did not explain why the name did not appear on the identification documents of the applicant’s father. I accept that given all of this, and the applicant’s name [redacted], and in the context of the earlier document examiner’s technical assessment of the veracity of the Iraqi National Identification card the applicant had provided as evidence of his identity, nationality or citizenship as having been altered by a person who does not have the authority to do so and so was a bogus document – an assessment the Delegate accepted – it was plainly open on the evidence for the delegate to be concerned by the absence of the name [redacted] from any of the other identity documents which the applicant provided. There was thus a basis for the delegate’s finding, and the evidence before her provided a logical, rational and evidential basis for the view taken that the absence of the surname or family name [redacted] from the subsequent documents provided was a matter of concern.
That the Nasab format for Arabic names as explained in the Guide provides that the format of one to six lineage names may include an ‘optional family name’ takes the matter no further. The Guide, on which the delegate relied, alerted the delegate that some names written in the Nasab format for Arabic names might include a family name. In other words, the Guide did not say that a family name will appear in every case, but there was some use of family names in Arabic cultures using the Nasab format. What weight was given to the Guide was a matter for the delegate, but there remained a sufficiently logical and rational basis, having regard to the Guide and the other matters discussed above, for the delegate to find as she did.
I also accept the respondent’s contention that there is no basis for the applicant’s contention that the delegate assumed surnames in the Arabic naming convention have the same significance as they do in western or English cultures. No such finding nor any comment nor observation to that effect was made. And it does not emerge implicitly from any of the findings the delegate made.
The applicant’s contention that irrationality, illogicality or unreasonableness is also evident because the delegate made the impugned bogus document finding despite the letter from the Iraqi Embassy stating that his surname is [redacted] also cannot be accepted. The letter from the Iraqi Embassy did not confirm the applicant’s name was [redacted], nor did the writer suggest that the impugned document had been examined by the Embassy and verified as legitimate. The letter did no more than to confirm that someone named [redacted] had a relevant ID number. It was therefore open to the delegate to give the letter little weight as it did not speak to the veracity of the impugned document, nor to whether the applicant could give a reasonable explanation for presenting the impugned document to a Departmental official.
For these reasons, ground 2 does not disclose an arguable case of jurisdictional error.
DISPOSITION
Given the extent of the delay, the absence of an acceptable explanation for the delay and that the sole ground of review pressed by the applicant does not disclose an arguable case of jurisdictional error, I do not consider that it is necessary in the interests of the administration of justice that an order extending time be made. The application for an extension of time will be dismissed with costs.
The respondent sought an order for costs in the amount of $4,189.38 if an extension of time were refused. That has been the result. The amount sought is reasonable in the circumstances and there is no reason why costs in this matter should not follow the event. The applicant will be ordered to pay the respondent’s costs fixed in the sum of $4,189.38.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 10 September 2025
0
33
1