EFI21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1132
•21 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFI21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1132
File number(s): SYG 2163 of 2021 Judgment of: JUDGE D HUMPHREYS Date of judgment: 21 July 2025 Catchwords: MIGRATION – (Subclass 790) Safe Haven Enterprise Visa (SHEV) – Application for an extension of time – judicial review application filed 171 days out of time – no requirement for the Tribunal to make findings as to the consequences of visa cancellation – where there is no merit in the proposed grounds of review – application refused Legislation: Migration Act 1958 (Cth) ss 46A,48A116, 140,197C,46A, 197C, 501CA (4)
Migration Regulations 1994 (Cth), reg 2.43(1)(oa)
Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DZAAD v Department of Immigration and Citizenship [2013] FCA 204
Hillis v Minister for Home Affairs [2021] FCA 892
Jabari v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 298 FCR 431
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
SZTMD v Minister for Immigration & Border Protection [2015] FCA 150
Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of hearing: 2 July 2025 Place: Parramatta Counsel for the Applicant: Ms Kneebone Solicitor for the Applicant: Mr McCarthy, Legal Aid Commission of NSW Counsel for the First Respondent: Ms Hooper Solicitor for the First Respondent: Ms Wilford, Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2163 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFI21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
21 JULY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to read ‘Minister for Immigration and Citizenship’.
2.The application for an extension of time is refused.
3.The application is dismissed.
4.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review filed on 19 November 2021, seeking review of a decision of the Administrative Appeals Tribunal (Tribunal), as it was then, dated 27 April 2021, affirming a decision of a delegate of the Minister for Home Affairs (the delegate) to cancel the applicant’s Subclass 790 Safe Haven Enterprise Visa (SHEV).
The Applicant requires an extension of time to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth)(the Act).
The Court had regard to both Applications on the date of hearing.
For the reasons set out below, the Application for an Extension of Time is refused. Accordingly, the judicial review application is dismissed.
BACKGROUND
The applicant is a citizen of Iran. He arrived in Australia in 2012.
On 8 February 2017, the applicant was granted the visa on the basis that he had converted to Christianity and feared that if he were returned to Iran, he would be killed by way of hanging in accordance with Sharia Law, as an apostate.
On 18 February 2020, the applicant was convicted of driving with middle range Prescribed Concentration of Alcohol, Common Assault (Domestic Violence) (two counts), and Destroy or Damage Property less than or equal to $2000.00.
The applicant was sentenced to a 15-month Community Correction Order.
On 4 September 2020, the delegate issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of the visa. The NOICC informed the applicant that there appeared to be grounds to cancel his visa under s 116(1)(g) of the Migration Act 1958 (Cth) (the Act) and reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth)(the Regulations).
On 6 October 2020, a delegate cancelled the applicant’s visa pursuant to s 116(1)(g) of the Act.
The applicant sought review of the delegate’s decision by application to the Tribunal lodged on 14 October 2020.
On 27 April 2021, the Tribunal affirmed the decision to cancel the applicant’s visa. The Tribunal found that the prescribed ground to cancel the visa in reg 2.43(1)(oa) existed and the power to cancel in s 116(1)(g) was enlivened.
The applicant now seeks judicial review of the Tribunal’s decision of 27 April 2021. The Application however was lodged on 19 November 2021, well outside of the specified 35-day time frame. Accordingly, the first issue is whether an extension of time should be granted.
THE LAW IN RELATION TO AN EXTENSION OF TIME
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:
(a) the extent of the delay;
(b) the explanation for the delay;
(c) prejudice to the respondent due to the delay; and
(d) the merits of the proposed application.
The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an Order extending time for filing of the Application.
The decision to grant an extension of time is a discretionary one: (DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]):
The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]-[27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (per Cowdroy J)).
To the above, the Court would add that the greater the delay the more persuasive the explanation for the delay has to be. In considering whether to grant an extension of time, there are no mandatory relevant considerations; (Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu'uta Katoa) at [12]):
On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at 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. The level of satisfaction for the Court to reach is not low: 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.
APPLICATION FOR AN EXTENSION OF TIME
The Application for judicial review and an Extension of Time was filed on 19 November 2021, some 171 days outside of the 35-day time frame prescribed by s 477(1) of the Act. This is a lengthy period of time which, in and of itself, mitigates against an extension being granted. As such, the reasons for the delay will need to be persuasive.
The applicant relies upon the following four grounds:
1.The length of delay does not preclude an extension being granted.
2.The applicant through his solicitor in the affidavit filed on 19 November 2021 has provided an explanation for the delay.
3.There is no prejudice to either the first or second respondent in an extension being granted.
4.The grounds of the application for review have reasonable prospects of success and it is in the interests of justice that the application for review be heard.
The applicant claimed that the delay was occasioned by a number of factors, including:
(a)The applicant became depressed after the Tribunal’s decision;
(b)It took over two months for Legal Aid to obtain a copy of the applicant’s documents from the Tribunal;
(c)The solicitor, an employee of Legal Aid NSW, with conduct of the matter became ill and took long-term sick leave.
The applicant claimed that there was little prejudice to the respondents by virtue of the delay, and that given the grounds of appeal give rise to an arguable case with sufficient prospects of success, in the circumstances, the extension of time should be granted.
The first respondent's position is that the Application ought to be dismissed due to the length of delay, together with the inadequate and incomplete explanation, where public interest considerations weigh against the grant of an extension of time, and where the Application does not demonstrate jurisdictional error.
It is submitted that the delay in this case is very substantial. Whilst the affidavit of Muhammad Jarri Haider Syed explains some parts of the delay, it does not account for significant periods. The apparent inability on the part of the applicant to obtain legal advice or representation in a timely way would not generally provide a sufficient explanation for delay: WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 (WQRJ) at [37]. Generally, “the longer the delay the more persuasive the explanation needs to be”: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38].
Further, the Minister has a legitimate interest in the timely disposal of applications for visas: WQRJ at [42]-[44]. There is also a public interest in the prompt disposition of administrative law matters and, in particular, of allegations that officers of the Commonwealth have acted in excess of their jurisdiction: WQRJ at [41].
The delay is extensive, being some 171 days outside the mandated 35-day time period. This mitigates against leave being granted.
I do not consider the explanation for the delay as being as being adequate. Legal Aid NSW is an organisation with considerable staff resources. It has sufficient resources to ensure matters are properly monitored and reviewed, to ensure time frames are met. It should have been obvious that an application for judicial review needed to be lodged, even if that application needed amendment once a proper merits investigation had been completed. There appears to have been a seven-week delay between the receipt of the referral of the applicant in early June 2021 to an investigation commencing as to the merit of the claim on 20 July 2021. There was a further six-week delay in anything being done after the Solicitor with carriage of the matter became unwell. These delays should not have occurred. I note that the solicitor who had carriage of the matter is no longer employed by Legal Aid.
The explanation is inadequate. Legal Aid should have followed up in respect of the matter in a timely fashion, so that even if the application was lodged late, the delay would have been such that it would not have counted significantly against the applicant. This factor mitigates against an extension of time being granted.
I accept there is no real prejudice to the first respondent other than the need for these types of matters to be finalised. I consider this factor to be neutral.
The final consideration for the grant of an extension of time is the merits of the proposed application. This is considered below.
THE TRIBUNAL’S DECISION
At [7], the Tribunal set out the grounds for cancellation of a visa under s 116 of the Act.
Relevantly, at [9], the Tribunal outlined that a visa may be cancelled under reg 2.43(1)(oa) of the Regulations if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory, regardless of whether or not the holder held the visa at the time of conviction or the penalty imposed.
At [11], the Tribunal noted that the applicant had been convicted of three offences, and was sentenced to a 15-month Community Correction Order commencing 18 February 2020.
At [13], the Tribunal noted that the applicant’s explanation for the background and cause of his criminal convictions was as follows:
The incident of 26 January 2020 was out of character and it only occurred while he was intoxicated and taking anti-depression medication. He conducted himself in a shameful manner and he has been told that he pushed Ariene away from him while she was trying to help him and calm him down. He cannot explain what happened but he is ashamed of his conduct. He cannot change what happened but he is promising that he would not drink again and would not conduct himself in this manner.
At [17], the Tribunal advised the applicant that it considered a Court Order Notice document setting out the full sentence the applicant received to be serious. This was accepted by the applicant.
As there was no dispute that the applicant had been convicted of offences against NSW laws, the Tribunal noted that s 116(1)(g) was enlivened. The Tribunal then proceeded to consider whether the applicant’s visa should be cancelled.
At [20], the Tribunal noted that there are no matters specified in the Act or the Regulations that must be considered in the exercise of the discretion to cancel a visa. The Tribunal had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
At [21] – [22], the Tribunal accepted that the applicant continued to have protection claims and that the applicant had a compelling need to remain in Australia. Subsequently, at [23], the Tribunal gave weight to the extent of compliance with visa conditions in the applicant’s favour.
At [28], the Tribunal accepted that the applicant had experienced issues with the misuse of alcohol and drugs, and that the applicant was making genuine attempts to address this. The Tribunal also accepted that the applicant had been assessed as having mental health issues due to his family situation, following his separation from his wife and children in Iran.
At [30], the Tribunal acknowledged that cancellation of the applicant’s visa could cause further mental health issues for the applicant and have adverse effects on both the applicant and his partner. However, the Tribunal considered that cancellation of the applicant’s visa could lead to the applicant potentially reuniting with his children in Iran, which would have a positive impact on the applicant. The Tribunal did consider that the applicant had not seen his children since he arrived in Australia, and that if the visa were to be cancelled, due to the applicant’s protections claims, the applicant may not return to Iran to reunite with his children.
At [31], the Tribunal accepted that the cancellation of the applicant’s visa could result in psychological, financial, emotional and relationship hardship, however the Tribunal noted that the hardship needed to be considered in the context of the applicant’s offending behaviour against his partner and her daughter, who at the time of the offence had been a minor. Whilst the Tribunal noted that the offences were on the lower end of seriousness and the lower end of criminality, the Tribunal expressed that it was of the view that physical violence is serious.
At [32], the Tribunal noted concern with the applicant’s assertion that rough play was culturally acceptable. The Tribunal also noted that the relationship between the applicant and the partner’s child was not healthy and marked by violence.
At [33], the Tribunal gave limited weight to the degree of hardship that cancellation of the applicant’s visa would cause, noting at [34] that the cancellation arose because of serious offences.
At [35]-[37], the Tribunal considered the evidence raised by the applicant that he had been experiencing depression since arriving in Australia and had taken up drinking as a result. The Tribunal considered the applicant’s evidence that he was a good person, that he did not intend for the incident to occur and that he expressed remorse for the behaviour and incident. The applicant also outlined that he had taken steps to ensure that he would not engage in the offending behaviour again.
At [38], the Tribunal advised the applicant that a Police Facts Sheet outlined that the victims were scared during the incident and that the applicant had been violent. The applicant outlined that an Apprehended Violence Order (AVO) made against the applicant did not prevent him from engaging with his partner or her child, which was noted as correct by the Tribunal. The AVO was noted to stipulate that the applicant must not intimidate, intentionally or recklessly destroy or damage any property, approach or be in the company of the applicant’s partner or child for at least 12 hours after drinking alcohol or taking illicit drugs.
While the applicant provided evidence before the Tribunal as to the explanation for his behaviour, at [42] – [43], the Tribunal noted that as an administrative body, it was not open to it to critically evaluate or question the findings of the Court: Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. As such the Tribunal was satisfied that the applicant’s behaviour was not beyond his control.
Subsequently, at [44], the Tribunal weighed this factor in significant favour for the cancellation of the applicant’s visa.
At [46], the Tribunal considered whether there would be consequential cancelations under s 140 of the Act if the visa were to be cancelled. The Tribunal weighed this factor in favour of the applicant, noting at [47] there was no evidence of any consequential cancellations under s 140.
At [49] – [51], the Tribunal considered any mandatory legal consequences or whether cancellation may result in detention if the applicant’s visa was cancelled. The Tribunal gave neutral weight to this consideration.
At [52] – [59], the Tribunal considered whether there were any international obligations, including non-refoulment, that would be breached if the applicant’s visa was cancelled. The Tribunal weighed this factor in favour of the applicant. The Tribunal took into account the applicant’s evidence of his conversion to Christianity and the timeframe of his conversion. The applicant was noted to answer the Tribunal’s questions in a manner which was consistent with answers of a practising Christian. The applicant gave evidence that he converted to Christianity between 2008-2012, however could not provide the exact date. The applicant was noted however to provide a copy of his baptism certificate from his baptism within Australia and also provided documents demonstrating his involvement with Christian-related activities. The Tribunal noted it was satisfied that Australia’s international obligations against non-refoulment would be breached in the case of the cancellation of the applicant’s visa.
At [60], the Tribunal considered whether, in the case of a permanent visa, the applicant had strong family, business or other ties in Australia. The Tribunal noted that the SHEV was not a permanent visa, however, gave weight to this consideration in the applicant’s favour, noting the applicant’s contribution to the Church and the applicant’s volunteering with the Salvation Army.
In light of the reasoning above and considering the circumstances as a whole, the Tribunal concluded at [64], that the applicant’s visa should be cancelled.
As such, at [65], the Tribunal affirmed the decision to cancel the applicant’s visa.
GROUNDS OF JUDICIAL REVIEW
The applicant’s two grounds of judicial review are contained in an Amended Application filed on 20 June 2025. They are as follows:
1.The Second Respondent’s decision is affected by jurisdictional error in that the Second Respondent failed to lawfully consider the applicant’s claimed risk of harm if returned to Iran. Alternatively, the Second Respondent’s reasoning in relation to the applicant's claimed risk of harm if returned to Iran was illogical and/ or unreasonable.
2.The Second Respondent’s decision is affected by jurisdictional error in that the Second Respondent failed to lawfully consider the legal consequences of its decision (namely, detention and removal to a destination where the applicant faced harm). Alternatively, the Tribunal’s reasoning in this regard was illogical and/or unreasonable.
a)At [30] of its decision, the Tribunal expressed that it was “mindful” that “due to the protection claims, [the applicant] might not be returned to Iran”.
b)At [49]-[50], the Tribunal accepted that the applicant “could” be detained and removed from Australia. The Tribunal did not consider the potential length of detention, despite (a) identifying this as a relevant matter.
c)At [58], the Tribunal stated that “in case of cancellation, there would be breach of Australia’s international obligations, including non-refoulement” (emphasis added). The basis of this finding was left unarticulated, as was its ability to be reconciled with the Tribunal’s findings at [30] and [49]-[50].
d)Based on the above, it is impossible to determine from the Tribunal’s reasoning whether the Tribunal considered that the applicant “would” be removed from Australia in breach of Australia’s non-refoulement obligations, or whether he “might not be returned to Iran”. The basis for either finding was left unstated, as were the potential consequences for the applicant in either event.
e)In the premises, the Tribunal failed to specifically identify and grapple properly with the potential legal consequences of its decision. Further or in the alternative, the Tribunal’s reasoning was illogical or unreasonable.
THE APPLICANT’S SUBMISSIONS: PROPOSED GROUNDS OF JUDICIAL REVIEW
Ground One
In ground one, the applicant submits that the Tribunal failed to understand and evaluate the representation made by the applicant that he would be killed if returned to Iran, and that failure constituted jurisdictional error.
The requisite degree of consideration that a decision-maker must give to a representation is affected by the importance and centrality of the material to the exercise of the Tribunal’s function: Jabari v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2023) 298 FCR 431 (Jabari) at [55].
The applicant’s representation that he would be killed if he returned to Iran was a significant and clearly articulated submission, central to the exercise of the Tribunal’s discretion. The nature of the representation required that the Tribunal not only refer to the representation when reciting the evidence that was before the Tribunal, but also consider the representations in the Tribunal’s reasoning: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [39]-[40].
Whether or not a matter has been considered can be a matter of inference drawn from the Tribunal’s reasons as a whole: Jabari at [55]. The Tribunal’s reasons suggest the applicant’s evidence that he would be killed was overlooked, in particular:
a)The Tribunal found that the applicant’s potential return to Iran could result in a “positive impact” as he might be reunited with his children: [30]. This finding was inconsistent with the applicant’s evidence that he would be killed if returned to Iran, and illogical in the face of the applicant’s evidence;
b)In determining the degree of hardship that might be caused by the cancellation of the visa, the Tribunal stated that “cancelling the visa could result in hardship including psychological, financial, emotional and relationship hardship”: [31]. The Tribunal did not make a finding of physical hardship, including possible execution, even though the Tribunal explicitly found that removal to Iran was a possible consequence of the applicant’s visa cancellation: [30], [49];
c)The applicant’s evidence that he would be killed if returned to Iran was “so obviously relevant [to the Tribunal’s decision] that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it”: Jabari at [55], citing SZTMD v Minister for Immigration & Border Protection [2015] FCA 150 at [19].
The Tribunal’s failure to consider a clearly articulated and important representation gave rise to jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) at [27]. The decision of the Tribunal could realistically have been different if the Tribunal considered the applicant’s risk of harm if returned to Iran, and therefore the error was therefore material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT).
In the alternative, it was submitted that the Tribunal’s failure to give weight to the applicant’s risk of harm if he returned to Iran was not “within the bounds of rationality and reasonableness”: Plaintiff M1 at [25], and accordingly the Tribunal’s decision was legally unreasonable. Further, the Tribunal’s reasoning in relation to the applicant’s risk of harm if returned to Iran was illogical, particularly at [30], where it concluded that the applicant’s potential removal to Iran might lead to a “positive impact” as he could be reunited with his children, , without engaging in a meaningful consideration of the applicant’s evidence that he would be killed if he returned to Iran: Hillis v Minister for Home Affairs [2021] FCA 892 at [83].
Ground Two
In ground two, the applicant submits that the Tribunal failed to lawfully consider the legal consequences of the visa cancellation.
The Tribunal was required to consider the legal consequences of the cancellation of the applicant’s visa: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38.
A decision-maker is required to take into account the legal consequences of a decision because those consequences are part of the legal framework and includes the direct and immediate statutorily prescribed consequences of the decision in contemplation: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177 (Taulahi) at [84].
It is unclear from the Tribunal’s reasoning whether the Tribunal considered the applicant “would” be removed from Australia in breach of Australia’s non-refoulement obligations, or whether he “might not be returned to Iran”. The Tribunal’s statement that the applicant “could” be detained and “potentially” removed fails to engage with the statutory framework in effect at the time of the Tribunal’s decision, which was that he would be required to be removed from the country unless he was applying for, or granted, a different visa.
The Tribunal’s failure to consider the statutory context was material, in that the decision made by the Tribunal could realistically have been different if there had been no error: LPDT.
In the alternative, it was submitted the Tribunal’s findings that there “would” be a breach of Australia’s non-refoulement obligations if the applicant’s visa was cancelled and that he “might not be returned to Iran” were illogical and/or legally unreasonable, as these findings were inconsistent.
THE FIRST RESPONDENT’S SUBMISSIONS: PROPOSED GROUNDS OF JUDICIAL REVIEW
The applicant’s particulars proceed on the erroneous basis, and contrary to authority, that the Tribunal was obliged to reach definitive findings of fact on various topics or matters advanced by the applicant. More specifically, contrary to particular (b), the Tribunal was not obliged to speculate about the “potential length of detention”; it lacked any probative evidence which might have permitted it to make findings of fact about the length of detention.
With regard to particular (c), the basis of the Tribunal’s finding at [58] is an acceptance that the applicant “continues to engage Australia’s obligation based on his protection claims”, which is an acceptance that the applicant is owed protection obligations and hence any removal would contravene Australia’s non-refoulement obligations. Whilst this paragraph is not particularly well-expressed, it is sufficiently clear, and this consideration was given weight in the applicant’s favour.
Ground one as developed by the applicant, is that “the Tribunal failed to understand and evaluate the representation made by the applicant that he would be killed if returned to Iran, and that such a failure constituted jurisdictional error.” However, even in the s 501CA(4) context, the whole of the representations is a mandatory consideration, not the statutory context: Omar at [34](e); Plaintiff M1 at [23].
The Tribunal accepted that the applicant was owed non-refoulement obligations and weighed this favourably to the applicant. It did not have to consider and make findings on the integers of his claims as if it were determining a Protection visa application, let alone each asserted type of harm he claimed to fear. The Tribunal acknowledged and understood the feared harm at [13], [14], and [16] and consideration of that harm is subsumed by the Tribunal’s consideration of and acceptance of the proposition that the applicant is owed protection obligations at [58]: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47]. There is no basis to infer that this part of the applicant’s claims was overlooked.
The applicant at AS[16] made reference to Jabari at [55], however this reference does not advance the argument noting, Jabari at [55] indicates that particular representations were made that went to a consideration made mandatory by force of a binding Ministerial Direction. Further, at AS [17], the applicant made reference to Omar. The Assistant Minster in Omar made findings including a finding to the effect that it was unnecessary for the Assistant Minster to determine whether non-refoulement obligations were owed because Mr Omar could make a Protection visa application (at [21] and note [44]).
The Tribunal considered the mandatory legal consequences of its decision at [49]. Those included detention and potentially removal, with the Tribunal appreciating at [50] that as the applicant had been granted a SHEV those legal consequences were “important”. It is hard to see how the Tribunal could have gone any further than it did in evaluating the mandatory legal consequences of its decision. The Tribunal did not have to definitively determine whether or not the applicant would be removed to Iran: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [14]. The legal consequences of the decision could hardly be predicted with certainty: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 at [81].
The Tribunal did not fail to consider, nor did it misunderstand the “direct and immediate statutorily prescribed consequences of” the decision: Taulahi at [79], [84]. There is no inconsistency in saying that removal to Iran would breach non-refoulement obligations and that the applicant might not be returned to Iran. At the time of the Tribunal’s decision in April 2021, s 197C of the Act provided that the duty to remove arose regardless of non-refoulement obligations in respect of an unlawful non-citizen and irrespective of whether those obligations had been assessed. Indefinite detention was not a potential legal consequence: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
The Tribunal’s evaluative task involved it considering and weighing factors that pointed in different directions and arriving at an ultimately subjective decision. It did not have to make findings of fact adjudicating all contentions made by the applicant. Whether characterised as a failure to “lawfully consider” matters, or illogicality, or unreasonableness, the application reasons does not reveal jurisdictional error. The Tribunal’s disclose an evident and intelligible justification for its decision, especially when the nature of its task is borne in mind: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47].
CONSIDERATION: MERITS OF THE PROPOSED GROUNDS OF JUDICIAL REVIEW
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. The Court concluded at [131], that it was insufficient the different minds might reach different conclusions in a jurisdictional fact and that the test for illogicality or irrationality:
… Must be to ask whether logical or rational 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 reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.
Ground one, as amended, is a claim that the Tribunal failed to lawfully consider the applicant’s risk of harm if returned to Iran. In the alternative, it is claimed the Tribunal’s reasoning of the applicant’s risk of harm if returned was illogical or unreasonable.
First, I am reasonably satisfied that the Tribunal did engage with, appreciate and understood the applicant’s fears if returned to Iran, and Australia’s non-refoulment obligations. This is understanding and appreciation is clearly set out at [53] – [59] of the Tribunal’ reasons.
Second, as the decision to cancel the applicant’s visa was made under s 116, the Tribunal at [6] correctly set out that if a ground for cancellation exists, “the decision maker must then proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances including relevant government policy”.
At [20], the Tribunal again correctly stated that “there are no matters specified in the Act or Regulations that must be considered in the discretion [to cancel a visa]”. The Tribunal had regard to the circumstances of the case, including matters raised by the applicant, and the matters raised in PAM 3.
What follows is an orthodox consideration of the matters set out in PAM 3 including ‘any other relevant matters’.
The Tribunal was clearly alive to and engaged with the issues surrounding the applicant’s conversion to Christianity. The claim was not overlooked. The claims are clearly set out at [13], [14] and [16] of the Tribunal decision record. It’s discussion of them is set out at [52] – [59], including the conclusion that removal of the applicant to Iran ‘would be a breach of Australia’s international obligations, including non-refoulment.’ This factor was given weight in the applicant’s favour.
I do not accept that the Tribunal was required to make findings on each of the applicant’s fears as if it were considering a protection claim. All that was required was for the Tribunal to make a determination, based on the evidence before it, whether not the discretion should be exercised to cancel the applicant’s visa in circumstances were grounds for the cancellation existed.
The applicant relies upon Plaintiff M1 at [34] where Keifel CJ, Keane, Gordon and Steward had the following to say:
… At least in some cases where a non-refoulment claim was raised expressly or by necessary implication, the reasoning required a decision-maker to address a number of questions: whether Australia owed the person non-refoulment obligations; whether the returning the person would breach those non-refoulment obligations; the consequences of such a breach for the person; and the consequence for Australia for breaching its non-refinement obligations. Where a decision-maker defers assessment of a person’s claim to non-defilement, none of those questions are required to be asked or answered.
In this case, at [58], I am satisfied that the Tribunal deferred consideration of Australia’s non- refoulment obligations having found there would be a breach of Australia’s international obligations. There was no necessity to consider all of the matters raised above as a result. I do not consider that it was necessary for the Tribunal to definitively determine whether or not the applicant would be removed to Iran as this was a matter that was not capable of being predicted with certainty.
I am not satisfied there was any failure on the part of the Tribunal to “lawfully consider” the matters that were before it. The decision record sets out those matters that were relevant to the consideration of the discretion to cancel and I am not satisfied there was any issue of illogicality or unreasonableness such as to rise to jurisdictional error. Ground one has no merit.
Ground two is a claim that the Tribunal failed to lawfully consider the legal consequences of the cancellation of the applicant’s visa. First it should be noted that as the applicant’s visa was a SHEV, it did not provide permanent residency. The SHEV only provided a pathway, and assuming he could meet the criteria, to a substantive visa: [21]. The Tribunal found the applicant continues to have protection claims.
The Tribunal properly set out at [49], that the applicant, as a result of the cancellation of his visa, could be detained and potentially removed from Australia. Further he would be subject to Public Interest Criterion (PIC) 4013. The Tribunal noted the impacts of ss 46A and 48A of the Act and PIC 4013 bar to be intended legislative consequences.
However, as set out above, there was no requirement for the Tribunal to make findings as to the consequences of cancellation. That could not be predicted with certainty. All the Tribunal was required to do was identify the legal consequences and give them appropriate weight in the overall decision as to whether the applicant’s visa should be cancelled, once grounds for cancellation were established. That is what the Tribunal did. It noted at [50], that those consequences were important. Ground two has no merit.
DETERMINATION
Noting that the delay in seeking judicial review is very extensive (171 days), that the explanation is inadequate and that the grounds of judicial review do not have merit, leave for an extension of time should be refused. It follows that the substantive judicial review application is dismissed.
In coming to this conclusion, I have been mindful of the need for the prompt disposition of administrative law matters, particularly immigration matters that involve the issue of constitutional writs and that there be an end to such litigation: Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 per McHugh J at [15].
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 21 July 2025
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