EIO18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1554
•24 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EIO18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1554
File number(s): SYG 2559 of 2018 Judgment of: JUDGE ZIPSER Date of judgment: 24 September 2025 Catchwords: MIGRATION – judicial review – extension of time application – whether satisfactory explanation for delay - merits of underlying application – extension of time refused Legislation: Migration Act 1958 (Cth) ss 5J, 46, 473GB, 477 Cases cited: CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344
Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655
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: 53 Date of hearing: 17 September 2025 Applicant: In person Solicitor for the Respondents: Mr J Fyfe (Minter Ellison) ORDERS
SYG 2559 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EIO18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
24 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application for an extension of time lodged on 3 September 2018 is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $4,553.02.
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 ZIPSER
INTRODUCTION
On 3 September 2018, the applicant filed an application to extend time, pursuant to s 477 of the Migration Act 1958 (Cth) (Act), in which to make an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 10 May 2018.
For the reasons that follow, the application to extend time is dismissed.
FACTUAL BACKGROUND
In 2013, the applicant, a citizen of Iran, arrived in Australia as an unauthorised maritime arrival.
On 10 June 2016, the applicant lodged an application for a Temporary Protection Visa (TPV), claiming to fear harm if he returned to Iran.
On 20 November 2017, a delegate of the first respondent, after interviewing the applicant on 8 September 2017, made a decision refusing to grant the applicant a TPV.
On 27 November 2017, the matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
On 10 May 2018, the IAA made a decision affirming the delegate’s decision not to grant the applicant a TPV.
IAA’S DECISION
The IAA at [3] summarised the applicant’s claims. The applicant claimed to fear harm because of his non-adherence to Shia Islam, his opposition to the Iranian regime, and because he was baptised as a Christian while living in Australia.
The IAA at [4]-[41] considered whether the applicant satisfied the criterion for a protection visa in s 36(2)(a) of the Act. The applicant made claims concerning various interactions with the Iranian authorities, including the Basij, before he came to Australia, and arising from having converted to Christianity while in Australia. The IAA:
(a)at [7]-[34] accepted some of the applicant’s claims and rejected others;
(b)at [35]-[39] considered whether the applicant might face harm in Iran as a returning asylum seeker who had spent a number of years living in Australia; and
(c)at [40] concluded:
Based on the applicant’s personal circumstances, I am … not satisfied the applicant faces a real chance of serious harm for any of the above reasons, should he return to Iran.
The IAA at [41] concluded that the applicant did not meet the criterion for a protection visa in s 36(2)(a) of the Act.
The IAA at [42]-[48] considered whether the applicant met the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act. The IAA at [48] concluded that the applicant did not meet the criterion in s 36(2)(aa).
PROCEEDINGS IN THIS COURT
Judicial review application and steps up to hearing on 17 September 2025
On 3 September 2018, the applicant lodged an application in this Court seeking judicial review of the IAA’s decision. The application included one ground as follows (as written) (Application):
Ground 1: The IAA erred by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to refugee criterion from the complementary criterion
1.The decision by the IAA was affected by jurisdictional error as the IAA failed to consider the applicant’s claim that he faces a real risk of significant harm as an apostate under the complementary criterion from [42] of the decision record. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to the refugee criterion at [32] of the decision record, from the complementary criterion from [42] of the decision record.
Particulars
The protection claims
a) From [3] of the decision record, the applicant is male citizen of the Islamic Republic of Iran, who claims protection in the Commonwealth of Australia (Australia) on the grounds that the “applicant fears the Iranian authorities will detain, interrogate, torture or kill him because: he does not conceal his non-adherence to Shia Islam or his opposition to the Iranian regime; he signed an undertaking not to leave Iran; he has been baptised as a Christian; and would be returning as a failed asylum seeker from Australia.”
The refugee criterion
a) At [32], the IAA was prepared to accept the applicant attended church for a period in Australia, and was baptised on 8 June 2014; however, based his own evidence that he has no religion, the IAA considered he stopped attending because he is not committed to Christianity, rather than because he feared there were informants in the congregation. Accordingly, the IAA erred by disregarding the applicant’s conduct in assessing whether he has a well-founded fear of persecution in Iran under s.5J(6) of the Act …
The complementary criterion
b) Under the heading “complementary protection assessment” the IAA failed to consider at all the applicant’s claim that he faces a real risk of significant harm as an apostate under the complementary criterion. The IAA therefore erred by misinterpreting, misunderstanding or misapplying the applicable law by failing to distinguish the application of section 5J(6) of the Migration Act 1958 (Cth) to the refugee criterion at [32] of the decision record, from the complementary criterion from [42] of the decision record.
In light of the time limit for filing applications in s 477 of the Act, the applicant filed the Application about 81 days after the expiry of the time limit and required an extension of time. The applicant's reasons for delay were provided in an accompanying affidavit (Affidavit) (as written):
…
2.I am applying for an extension of time to file my application. The reason why my application is late is because the IAA had posted in May 2018 its decision to my home address in Sydney while at the time I was working in Canberra.
3.When my employer in Canberra notified me on 4th July of my Immi-Card expiration, I contacted my migration agent and asked about my IAA matter. …
4.My agent asked me to go to his office to contact the IAA. When I attended his office on 6 July 2018, he contacted the IAA and told me that the IAA decision had been sent to my home address in May 2018. He then asked the IAA to send by way of email the decision to me. I received the decision on the day. …
5.I was depressed and penniless and did not know what to do. I used to drive my car into park and sleep my car.
6.I was looking for a lawyer and asked my friends for help. I was at the same time looking for work until I was introduced and spoken to my current lawyer on 20 August 2018.
The Application and Affidavit recorded a solicitor on the record for the applicant (Applicant’s Solicitor). I infer the solicitor assisted in preparing the Application and Affidavit.
In October 2019, the Applicant’s Solicitor filed a notice of withdrawal as lawyer.
Following a period of inactivity, on 3 June 2025, there was a callover before a registrar of the Court. The registrar made procedural orders, including that, upon the matter being listed for hearing, the applicant file and serve at least 28 days before the hearing any amended application, written submissions and any additional evidence on which the applicant sought to rely.
On 4 August 2025, the registry of the Court notified the parties that the matter was listed for hearing on 17 September 2025.
The applicant did not file any further materials prior to the hearing.
On 3 September 2025, the first respondent filed a written submission (RS).
Hearing on 17 September 2025
At the hearing on 17 September 2025, the applicant appeared before the Court unrepresented, assisted by an interpreter in the Farsi language. James Fyfe from Minter Ellison appeared for the first respondent.
The applicant did not bring to the hearing a copy of the Court Book, filed and served by the first respondent in December 2018, which contained the IAA’s decision and documents before the IAA. The applicant said he had a copy of the Court Book at home. Mr Fyfe gave the applicant a second copy of the Court Book.
At the commencement of the hearing, I explained to the applicant the limited role of the Court in a judicial review application – to consider whether there is a jurisdictional error, which I described as a significant mistake or error, in the IAA’s decision. I directed the applicant’s attention to the IAA’s decision in the Court Book. I explained the main categories of jurisdictional error.
I told the applicant there were two matters he must address today. First, he must persuade the Court there is a jurisdictional error in the IAA’s decision. Second, since the applicant filed the Application more than 35 days after the date of the IAA’s decision, he must persuade the Court to extend time for the filing of the Application. He must persuade the Court that he has a satisfactory explanation for his delay of 81 days in commencing the proceeding in this Court.
After I explained these matters to the applicant, I offered the applicant a 10 minute break to consider oral submissions he wanted to make at the hearing. The applicant took up this opportunity.
After the break, Mr Fyfe tendered the Court Book. I asked the applicant if wanted to tender any documents. The applicant brought to Court original copies of five pages of hospital records dated between 2021 and 2024 which indicated the applicant was admitted to hospital for periods of time to treat a mental health disorder (Hospital Records). The oldest record indicated the applicant was an inpatient at Nepean Hospital for 25 days in March 2021 and treated for “psychosis”. The applicant had not previously served these documents on the first respondent. However, since the documents were possibly relevant to the applicant’s reliance on his mental health as an explanation for his delay in filing the Application (see paragraph 5 of the Affidavit in paragraph 13 above), I permitted the applicant to tender the documents.
While discussing the Hospital Records, the applicant stated from the Bar table that he once had older documents concerning his mental health condition, but he could no longer find them. In light of the relevance of this information to the applicant’s delay of 81 days in commencing this Court proceeding, I permitted the applicant to give oral evidence about his mental health condition.
The applicant, after entering the witness box, stated under oath that he first developed mental health problems in 2016 or 2017, that he commenced to see a psychologist with an Iranian background in Blacktown, that the psychologist referred him to a doctor who prescribed medication, that the applicant used the medication, and the medication made the applicant feel calmer and less agitated. The applicant stated that the admission to Nepean Hospital in 2021 referred to above was his first admission to hospital for his mental health condition.
I then invited the applicant to make oral submissions. In relation to the applicant’s explanation for his delay in filing the Application, the applicant repeated the matters in paragraphs 2 to 4 of the Affidavit. In relation to whether there was an error or mistake in the IAA’s decision, the applicant stated that if he returns to Iran he will be in danger because he has converted to Christianity.
Mr Fyfe made brief oral submissions on behalf of the first respondent and otherwise relied on a written submission filed on 3 September 2025.
EXTENSION OF TIME PROVISIONS
Section 477 of the Act relevantly provides:
(1)An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:
(a)an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 (‘Katoa’) at [12], the plurality stated in respect of the equivalent provision in s 477A(2) that “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” and “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”.
In relation to the merits of the underlying application, one matter considered in Katoa was the degree or extent to which the Court may or should consider the merits of the underlying application. The plurality stated at [17]-[19] that “in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) (or 477(2)), it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”, but “there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits”, and ultimately the provision “entrusts to the [Court] the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application”.
CONSIDERATION
Length and reasons for delay
The 35-day time frame for the applicant to apply to the Court for judicial review of the IAA’s decision ended on 14 June 2018. The applicant did not apply for judicial review until 3 September 2018, which was 81 days after the expiry of the 35-day time frame. He therefore requires an extension of time of 81 days. The first respondent describes the delay as “significant”: RS [16]. I would describe the delay as “substantial” or “not insignificant”.
The applicant provides two reasons for his delay. The first reason covers the period up to 6 July 2018. The applicant explains in the Affidavit that:
(a)In May 2018, when the IAA posted its decision to the applicant’s home address in Sydney, the applicant was working in Canberra and continued to work in Canberra up until at least 4 July 2018.
(b)On 4 July 2018, the applicant’s employer notified the applicant of his Immi-card expiration. This caused the applicant to contact his migrant agent and ask about his matter in the IAA. On 6 July 2018, the agent contacted the IAA and discovered that the IAA made its decision in May 2018.
In relation to this first reason, while I accept the applicant’s explanation, based on the limited information in the Affidavit, the applicant was careless to the extent that he moved from Sydney to Canberra for two months (or longer), and took no steps to arrange for his mail to be checked or forwarded to Canberra, or to notify the IAA of his temporary address in Canberra.
The second reason covers the period from 6 July 2018 to 3 September 2018. The applicant states that he “was depressed and penniless and did not know what to do”, he “used to drive [his] car into park and sleep [in the] car”, he “was looking for a lawyer”, he “was at the same time looking for work”, and he eventually met his “current lawyer on 20 August 2018”. This was a reference to the Applicant’s Solicitor.
In relation to this second reason:
(a)In light of the hospital records tendered by the applicant at the hearing on 17 September 2025, and the applicant’s oral evidence, I accept the applicant had a mental health condition by 2018. However, by this time, the applicant was receiving treatment for the condition, and was taking medication which appeared to be effective.
(b)Aspects of the applicant’s explanation are unsatisfactory. For example:
(i)I am not persuaded the applicant was “penniless” between 7 July 2018 and early September 2018 if he was employed in Canberra for a period of time up to 6 July 2018.
(ii)There is a tension or inconsistency between the applicant’s evidence that he had a “home address” in Sydney but was sleeping in his car.
(iii)While the applicant appears to suggest that impecuniosity prevented him from retaining a lawyer until 20 August 2018, first, the applicant does not explain how he was able to retain a lawyer on 20 August 2018 but not before. Second, there is a tension between the suggestion that impecuniosity prevented the applicant from retaining a lawyer, and the fact the applicant had a migration agent. I am not persuaded the applicant was unable to retain a lawyer prior to 20 August 2018.
(c)Since the Affidavit was prepared with the assistance of a lawyer, in contrast to an affidavit prepared by an applicant without the assistance of a lawyer, I am not inclined to give the applicant the benefit of the doubt where there are omissions or inconsistencies in the Affidavit.
Prejudice to first respondent
The first respondent states at RS [19] that the first respondent would not suffer substantial prejudice if time were to be extended, although delay itself naturally causes “some prejudice”: Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655 at [128].
Merits of underlying judicial review application
Ground 1 in Application
The applicant claimed that:
(a)he converted to Christianity in Sydney, and was baptised, in June 2014;
(b)he attended a church in Sydney for about seven months after he converted, but then stopped attending because he feared other Iranians in the congregation would inform the authorities in Iran;
(c)his former flatmate took a copy of his baptism certificate to Iran and provided it to the Iranian authorities; and
(d)the Iranian security authorities visited the family home of the applicant in Iran on several occasions from about 2015 and told the applicant’s mother they wanted to speak with the applicant because of his conversion to Christianity, although the applicant’s mother did not inform the applicant about the visits until September 2017; see CB 130.
The applicant claimed to fear harm because he had converted to Christianity and because the Iranian authorities were aware he had converted to Christianity.
The IAA at [32], in considering the Refugees Convention criterion for a protection visa in s 36(2)(a) of the Act, made findings concerning these claims as follows:
I am prepared to accept the applicant attended church for a period in Australia, and was baptised on 8 June 2014; however, based [on] his own evidence that he has no religion, I consider he stopped attending because he is not committed to Christianity, rather than because he feared there were informants in the congregation. Nor, on the evidence, am I satisfied that any of the applicant's former flatmates have provided a copy of his baptism certificate to the Iranian authorities. I consider the attendance of the applicant at church, and his baptism, was conduct engaged in for the sole purpose of strengthening his claim to be a refugee. Accordingly, I have disregarded the applicant's conduct in assessing whether he has a well-founded fear of persecution in Iran under s.5J(6) of the Act.
The IAA at [42]-[48], in considering the complementary protection criterion for a protection visa in s 36(2)(aa) of the Act, did not refer to or make any findings concerning the applicant’s claims in paragraph 39 above.
While a finding by a decision-maker under s 5J(6) concerning specified conduct engaged in by an applicant in Australia requires the decision-maker to disregard that conduct in determining whether the applicant has a well-founded fear of persecution, the finding under s 5J(6) does not permit the decision-maker to disregard the conduct in determining whether the applicant satisfies the complementary protection criterion in s 36(2)(aa) of the Act.
The applicant’s complaint to the Court appears to be, as summarised by the first respondent at RS [21], “that the IAA wrongly applied s 5J(6) to disregard conduct in Australia both for the purposes of the Refugees Convention and the complementary protection criterion”. The applicant contends that the IAA, in considering the complementary criterion at [42]-[48], wrongly disregarded conduct the subject of the IAA’s finding under s 5J(6) at [32].
For the following reasons, the applicant’s complaint does not identify a reasonably arguable ground of jurisdictional error in the IAA’s decision.
In relation to the applicant’s claim that the Iranian authorities were aware of the applicant’s conversion to Christianity, as stated by the first respondent at RS [31], the IAA at [32] “rejected at a factual level the applicant’s clam that his former flatmate had provided his baptism certificate to the Iranian authorities”. The IAA at [32] did not accept the Iranian authorities were aware of the applicant’s conversion to Christianity. It was not necessary for the IAA to revisit this aspect of the applicant’s claims in considering the complementary protection criterion.
In relation to whether the applicant was a genuine convert to Christianity who might want to practise Christianity in Iran, it is not evident that the applicant made this claim to the delegate. In any event, the IAA at [32] found that, “based on his own evidence that he has no religion, I consider he stopped attending because he is not committed to Christianity, rather than because he feared there were informants in the congregation”. The IAA thereby rejected any claim by the applicant that he was a genuine convert to Christianity who might want to practise Christianity in Iran. Again, it was not necessary for the IAA to revisit this issue when considering the complementary protection criterion.
The two matters that remained were the facts that the applicant was baptised in Australia and then attended church for a few months. The IAA at [32], because of its finding under s 5J(6), was required to disregard this conduct by the applicant in considering whether the applicant had a well-founded fear of persecution. Since the applicant did not advance a claim to fear harm in Iran arising from this specific conduct, it was not necessary for the IAA to consider this conduct when considering the complementary protection criterion. As stated by the first respondent at RS [31], it was not necessary for the IAA to consider a claim not squarely advanced by the applicant.
For the above reasons, ground 1 does not identify a reasonably arguable ground of jurisdictional error in the IAA’s decision.
Certificate issued under s 473GB of Act
The material before the IAA included a non-disclosure certificate issued under s 473GB of the Act dated 21 November 2017 – at CB 189. The first respondent, as a model litigant, considered in its written submission at RS [33]-[44] whether the existence of the certificate, or the manner in which the IAA considered or did not consider the certificate or information the subject of the certificate, was a jurisdictional error. I have read the first respondent’s written submission. Like the first respondent, I cannot identify an error by the IAA in connection with the certificate. Since the applicant neither pleaded this issue in the Application nor, after being served with the first respondent’s written submission, raised this issue at the hearing on 17 September 2025, I consider it unnecessary to address in this judgment issues which may arise in connection with the certificate.
Conclusion on whether to extend time
The Court may only grant an extension of time if it “is satisfied that it is necessary in the interests of the administration of justice to make the order”. I am not satisfied that it is necessary in the interests of the administration of justice to order that time be extended in this matter. The principal reason is the lack of a reasonably arguable ground of jurisdictional error in the Application. As stated by Mortimer J in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 at [4], albeit in the context of a different discretionary procedural power, “it is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case …”. An additional reason is that, as explained above, aspects of the applicant’s explanation for his 81 day delay in commencing the Court proceeding are unsatisfactory.
Therefore, I refuse to extend time and dismiss the application for an extension of time.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. If the Court refused to extend time, Mr Fyfe sought an order that the applicant pay the first respondent’s costs in the sum of $4,553.02 which is the scale amount for a matter dismissed at an interlocutory hearing. Mr Fyfe stated that this amount was less than the first respondent’s solicitor/client costs. The applicant did not oppose this amount. This amount is reasonable. I will make this order.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 24 September 2025
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