ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 945

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ERO20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 945

File number(s): SYG 2510 of 2020

Judgment of: JUDGE GIVEN

Date of judgment: 20 October 2023

Catchwords: MIGRATION – Application for extension of time granted where reasonably arguable grounds outweigh other relevant factors – where Immigration Assessment Authority failed to exercise jurisdiction and conduct review by not properly considering implied claim that applicant may be re-prosecuted on return to Iran for crimes committed in Australia

Legislation: Migration Act 1958 (Cth) ss 36, 473CC, 473DB, 473EA, 477

Cases cited:
ADX17 v Minister for Immigration and Border Protection [2018] FCA 1967

Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR 593

BBU15 v Minister for Home Affairs [2019] FCA 1324

BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49

DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175

DHB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 714

DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163

DQU16 v Minister for Home Affairs (2021) 273 CLR 1

DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246

Hunter Valley Developments Pty Ltd v Choen, Minister for Home Affairs and Environment (1984) 3 FCR 344

Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516

Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

NABE v Minister for Immigration (2004) 144 FCR 1

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

SZHYHv Minister for Immigration and Citizenship [2009] FCA 1001

SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442

SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17

SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86

Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604

Vella v Minister for Immigration and Border Protection (2015) 326 ALR 381

XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535

Division: Division 2 General Federal Law

Number of paragraphs: 160

Date of hearing: 1 May 2023

Place: Sydney

Counsel for the Applicant: Mr J Widjaja

Solicitor for the Applicant: Human Rights For All

Counsel for the Respondents: Ms C Roberts

Solicitor for the Respondents: Australian Government Solicitor
ORDERS

SYG 2510 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ERO20

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:
1.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter is extended up to, and including, 30 October 2020.
2.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 29 August 2018, into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to re-determine, according to law, the application for review before it.

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 GIVEN:

By an application filed with the Court on 30 October 2020 the applicant seeks orders pursuant to s 477(2) of the Migration Act1958 (Cth) (Act) to extend the time in which to seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 August 2018. By that decision, the Authority affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise Visa (Class XE) (Subclass 790) (visa).
BACKGROUND
The background to this matter is primarily derived from the written submissions of the parties and (unless otherwise indicated) does not appear to be in dispute.
The applicant is a citizen of Iran and a Shia Muslim of Persian/Farsi ethnicity (Court Book (CB) 12 and 16). On 6 February 2013, the applicant arrived in Australia by boat at Christmas Island.
On 14 February 2013, the applicant participated in an irregular maritime arrival entry interview (entry interview) (CB 10 to 27). During the entry interview, the applicant claimed the following (CB 158 to 159 at [10]):
(a)about 6 months prior to leaving Iran he began a sexual relationship with a woman who was engaged to someone else;
(b)the woman’s family found out about the relationship and started to threaten him. Her brother, who worked for Sepah (a branch of the Iranian armed forces), went to the shop where the applicant worked and shouted at him. That night, the same brother went to the applicant’s house and shouted and swore at him, asking why he was going out with his sister;
(c)the woman’s mother came to the shop and also yelled at the applicant, asking him why he was going out with her daughter, given that she was engaged;
(d)the applicant was concerned about the fact that the brother of the woman was in Sepah, because this meant he had lots of connections, and could do anything to the applicant;
(e)the applicant believed that by having a relationship with an engaged woman, he had gone against Iranian law and may be arrested, lashed, charged a fee, jailed and/or stoned to death; and
(f)he ceased the relationship with the woman about 2 months prior to leaving Iran.
On 17 March 2016, the applicant was sent a letter inviting him to apply for either a Temporary Protection (Subclass 785) or Safe Haven Enterprise (Subclass 790) visa (CB 28).
On 30 May 2016, the visa application was lodged for the applicant by his migration agent (CB 34) who was also appointed as his authorised recipient (CB 77 to 84). The applicant’s primary protection claim was said to be fear of serious harm in the form of an honour killing, by reason of his sexual relationship outside of marriage with the woman.
On or about 1 November 2017, the applicant was arrested and remanded in Australia on charges relating to the importation of a commercial quantity of opium, and possessing a commercial quantity of an unlawful import (CB 113) (Charges). The applicant was refused bail (CB 113).
On 5 June 2018, the delegate invited the applicant (via his migration agent) to attend an interview in relation to his visa application (SHEV interview) (CB 98 to101).
On 11 June 2018, the applicant’s migration agent submitted a form to the Department to terminate his representation of the applicant (CB 105) which, following further correspondence with the Department, appears to have been accepted on 12 June 2018 (CB 108 to 109).
The decision of the delegate records that the applicant participated in the SHEV interview while in custody and with the aid of an interpreter in the Farsi language (CB 125). The applicant was provided an opportunity to supply an additional document to which he had referred during the SHEV interview, which he subsequently submitted on 5 July 2018, together with a translation of it (CB 110 to 112).
On 6 July 2018, the delegate made a decision to refuse the applicant the visa (CB 119 to 139) which was notified to the applicant on the same date, under cover of letter addressed to him at the Long Bay Correctional Facility.
Delegate’s decision
The parts of the delegate’s decision which correspond with the errors alleged against the Authority in this matter are narrow (because they do not turn on the protection claims expressly made by the applicant), and can be summarised briefly. The delegate concluded that the applicant’s account of the repercussions which followed the end of his claimed relationship were “manufactured” and found it not plausible that the applicant would have forgotten threats and property damage by the woman’s family, or that a summons was allegedly issued in respect of him (CB 128).
Implied claim regarding the Charges
The delegate noted that the applicant was (at that time) on remand awaiting trial in relation to the Charges (CB 130). The delegate then proceeded to consider an implied claim arising from the existence of the Charges, namely that if the applicant was ultimately convicted of the Charges in Australia, he may be re-prosecuted in Iran (implied claim).
That was based on Article 7 of the Iranian Penal Code (Penal Code), which the delegate extracted as follows (CB 134):
In addition to the cases mentioned in the articles above, any Iranian national who commits a crime outside Iran and is found in, or extradited to, Iran shall be prosecuted and punished in accordance with the laws of the Islamic Republic of Iran, provided that:
(a) The committed conduct is deemed an offense under the law of the Islamic Republic of Iran.
(b) If the committed crime is punishable by ta’zir, the accused person is not tried and acquitted in the place of the commission of the crime, or in the case of conviction the punishment is not, wholly or partly, carried out against him.
(c) According to Iranian laws there is no basis for removal or discontinuation of prosecution or discontinuation or cancellation of execution of the punishment.
The delegate went on to explain the potential avenues for re-prosecution (footnotes omitted):
This leaves two possible legislative avenues for criminal liability: where non-ta’zirat crimes are committed (regardless of whether prosecution abroad occurred) and where a crime was committed in one place and prosecution occurred in another place, both of which were outside Iran. Non-ta’zirat crimes are those crimes mentioned in the Quran with prescribed punishments (hadd), or those that have retribution-in-kind punishments for purposeful (qesas) or accidental (diya) bodily injury.
The delegate conducted searches for examples of re-prosecution for non-ta’zir crimes occurring in Iran (CB 134 summarised in footnote 66) but located none. The delegate then said the following in relation to a 2014 German language article (German article):[1]
A 2014 article published in the German-language journal Zeitschrift für die gesamte Strafrechtswissenschaft made reference to the provision in Article 7 allowing certain crimes committed by Iranian nationals abroad to be prosecuted and punished in Iran. It was also noted, however, that there have been no recent reports of this provision having been applied in practice ‘in recent times’.
[1] CB 134
A footnote[2] to that paragraph of the delegate’s decision attributed that summary to:
Iran: Political Opposition Groups, Security Forces, Selected Human Rights Issues, Rule of Law: COI Compilation', Austrian Centre for Country of Origin and Asylum Research and Documentation, July 2015, pp. 174–175, CISEC96CF12768.
[2] CB 134 at footnote 67
A copy of the report cited at footnote 67 of the delegate’s decision forms part of Annexure “EZ-02” to the first Zhang Affidavit.[3]
[3] See paragraph [37] below and Annexure “EZ-02” to the first Zhang Affidavit at 51 to 298
From the material available in the Court Book and Affidavits before the Court, a ta’zir crime (which is also interchangeably referred to as being t’zirat) appears to be a state-codified crime. The other category of crimes, is those which are punishable by hadd. “Hadd” crimes are those derived from the Quran (CB 134).
Based on country information, the delegate found that drug-related crimes, including those in relation to drug smuggling, were ta’zir, despite not being specified as such in Iran’s (1997) Anti-Narcotics Law (IANL). Presumably, by reason of being codified in the IANL, offences under that legislation were state codified, and ergo, ta’zir crimes (see [19] above). This led the delegate to be satisfied that the Charges faced by the applicant would equate to being ta’zir crimes and, accordingly, that the applicant would not face criminal liability for them on return to Iran, even if found guilty in Australia (CB 134) provided he had served his sentence.
As a result:
(a)applying s 36(2)(a) of the Act, the delegate found (at CB 133):
The applicant has not expressed that he fears harm on return to Iran for that reason. Therefore, I am not satisfied that the applicant has a well-founded fear of prosecution if returned to Iran due to his pending criminal trial.
(b)in relation to s 36(2)(aa) of the Act, the delegate concluded that (at CB 133):
Although the applicant has not made any explicit claims about fearing harm on return to Iran for this reason, I consider a claim relating to possible consequences in Iran [for] his actions in Australia is an implied claim.
Proceedings before the Authority
On 12 July 2018, the delegate’s decision was referred to the Authority for review (CB 140). The applicant was sent a letter on the same date, to the Long Bay Correctional Facility, attaching the Authority’s Practice Note which explained, inter alia, the limitations on receipt of new information and the importance of maintaining correct contact details for correspondence.
The applicant did not submit anything to the Authority.
On 29 August 2018, the Authority notified the applicant of its decision (made at 4:52pm on that day) to affirm the decision under review (CB 153).
The summary of the relevant parts of the Authority’s decision referrable to the grounds of review can, again, be briefly distilled. In relation to the claims expressly made, the Authority agreed with the delegate that the applicant’s evidence regarding his core reason for leaving Iran was inherently inconsistent, and concluded that it was not satisfied the applicant had been a truthful witness in that regard (CB 161).
Implied claim regarding the Charges
The Authority addressed the issue of whether the Charges could result in the applicant facing harm on return to Iran (CB 162 to 163 at [26] to [28] (refugee criterion) and [37] (complementary protection criterion)).
In doing so:
(a)the Authority described the applicant as being on remand “after being charged with two drug offences” (CB 162 at [26]);
(b)noted that the applicant had, at no stage, sought himself to rely on this circumstance as being a reason upon which he feared harm on return to Iran, including during his SHEV interview which was held in the facility in which he was remanded (CB 162 at [26]);
(c)summarised the effect of Article 7 of the Iranian Penal Code[4] as meaning that the crime must first be deemed an offence under Iranian law. The Authority noted that if said crime is then punishable as ta’zir in Iran, it would not be the subject of further punishment in Iran, provided that:
(i)the person had already been tried and acquitted while abroad; or
(ii)if convicted, that the sentence was not wholly or partly carried out against them.
(CB 162 at [27]);
(d)stated that “No reports have been located that refer to specific examples of Article 7 being applied” (CB 162 at [27]); and
(e)referred to the German article which it described as having “noted that there had been no reports of [Article 7] being applied in practice in recent times” (CB 162 at [27]).
[4]Which it referred to as the Islamic Penal Code
In relation to potential re-prosecution in Iran, the Authority was not satisfied there was a real chance that the Iranian authorities would pursue the applicant, and re-prosecute him for “this matter”, or that he would face a real chance of harm “on this basis” because:
(a)of the evidence before it, including country information; and
(b)in the absence of any information indicating that the Iranian authorities were aware of the “applicant’s case”, or likely to become aware of it.
(CB 162 at [28]):
As noted at [22] above, the Authority’s decision was sent to the applicant under cover of letter on 29 August 2018. That letter included information in Farsi about language services (CB 153) and enclosed a fact sheet indicating that the applicant would need to approach this Court within 35 days of the date of the Authority’s decision if he wished to seek judicial review (CB 154).
APPLICATION TO THIS COURT
The applicant commenced these proceedings by an application for extension of time filed with this Court on 30 October 2020.
The matter was placed in the central migration docket. On 19 November 2020, procedural orders were made (by consent) by a Registrar of the Court which provided for the preparation of the matter and included a grant of leave to amend the originating application on or before 18 February 2021. The applicant did not do so.
The applicant was released from the custody of NSW Corrective Services on 26 October 2022, at which time he was immediately taken into immigration detention, where he presently remains.
On 5 December 2022, the matter was transferred into my docket and I made fresh procedural orders (in Chambers) and set the matter down for hearing on 20 February 2023. On 12 December 2023 the applicant wrote to the Court, ex parte, seeking time to enable him to retain a lawyer. The applicant’s email was forwarded to the solicitors for the first respondent so that they might comment on the applicant’s request, meanwhile the matter remained listed for hearing.
On 23 January 2023, the Court received an email from the applicant’s newly appointed lawyers explaining that the applicant had approached their office seeking pro bono assistance, but that their office had been closed (for Christmas) at the time the applicant had made the enquiry. The applicant’s representative, with the first respondent’s consent, sought extensions to the timetable and that the matter be adjourned.
Noting the timely and proper manner in which the applicant approached the Court, that he was newly represented and that the substantive adjournment was the subject to of consent, I made fresh procedural orders for the preparation of the matter. Those orders included a further grant of leave to amend the originating application up to 28 days before any final hearing, and relisted the hearing on 1 May 2023.
On 4 April 2023, an Amended Application was filed for the applicant, within the grant of leave made by the Court. At the hearing, both parties were represented by Counsel. Counsel for the applicant, in moving on the Amended Application indicated that ground 5 would not be pressed. Counsel for the first respondent noted that the first respondent had filed and served two sets of written submissions, but relied only on the most recent submissions, being those filed on 24 April 2023. The applicant relied on written submissions, filed for him on 17 April 2023.

Counsel for the applicant read the following three Affidavits:
(a)Affidavit of the applicant, affirmed on 3 April 2023 (applicant’s Affidavit);
(b)Affidavit of Eric Zhang, affirmed on 3 April 2023 (First Zhang Affidavit); and
(c)Affidavit of Eric Zhang, affirmed on 17 April 2023 (Second Zhang Affidavit).
Counsel for the applicant tendered a document entitled “DFAT Country Information Report for Iran” dated 7 June 2018 which was received and marked Exhibit “1A”. Counsel for the first respondent tendered the Court Book which was received and marked Exhibit “1R”. An Affidavit of the solicitor for the first respondent was not read, as its annexures were already in evidence by reference to the first and second Zhang Affidavits.
Extension of time application
By the Amended Application, the applicant seeks an extension of time in which to seek judicial review of the Authority’s decision, and if so granted raises 6 grounds substantive grounds of review (albeit one has been abandoned (see [36] above)).
Pursuant to s 477(1) of the Act, the time for seeking judicial review is within 35 days of the date of the migration decision. The Authority’s decision having been made on 29 August 2018, any application to this Court was required to be made on, or by, 3 October 2018. Accordingly, the application filed on 30 October 2020 is 2 years and 27 days (758 days) out of time.
While s 477(2) empowers the Court to extend the 35 day time limit if satisfied that it is necessary in the interests of the administration of justice to do so, the section does not prescribe factors which mandatorily fall for consideration in determining whether to exercise that discretion: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [24] per Logan J.
In assessing whether to extend time, the Court must evaluate all relevant circumstances of a case to decide if it is satisfied that the extension is necessary in the interests of the administration of justice: see BTI15 (supra) at [40] per Jagot and Halley JJ. In the absence of there being mandatory factors to assess, the following matters regularly arise for consideration and are relevant in the instant case:
(a)the length of delay;
(b)the explanation for the delay;
(c)balancing of the interests of the parties, namely the relative prejudice to the Minister (and public interest) as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be (usually) taken at a reasonably impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246, MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was), Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 at [7] to [9] per Brennan CJ and McHugh J, BTI15 (supra) at [25] to [26] per Logan J and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
It is accepted there are some cases in which a closer examination of the merits is appropriate: see Katoa (supra) at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
When examining the relative merits of a proposed substantive application at an impressionistic level the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, has a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] per Foster J and Hunter Valley Developments Pty Ltd v Choen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349 per Wilcox J.
The first respondent opposes time being extended on the basis that the proposed grounds of review lack merit.
Length of delay and explanation
The applicant’s explanation for delay is to the effect that while he became aware of the Authority’s decision 2 to 3 weeks after it was made, he did not know what to do about it (applicant’s Affidavit at [5] to [7]). The applicant also relies on the fact that, at the time the Authority’s decision was made, he was incarcerated.
The applicant says he found it difficult to find legal representation while in corrections facilities and that his attempts to speak with Legal Aid NSW were difficult, in part due to time limits imposed on telephones in that setting, and his limited ability with the English language (applicant’s Affidavit at [9]). The applicant also gives evidence about the conditions he faced while in corrections centres serving his sentence, as a result of the various COVID-19 lockdowns during which he was confined to his cell for longer than usual periods of time (applicant’s Affidavit at [10] to [12]). Once such instance included a three-week period in early 2020 when the applicant says he was placed in lock-down for approximately 23 hours a day (applicant’s Affidavit at [13]). The applicant says that it was not until May 2020 that he was first able to obtain some assistance through Legal Aid NSW, who advised him about judicial review options, but told him that he would still have to file any application himself (applicant’s Affidavit at [16]).
The applicant says that, on 16 June 2020, he completed a judicial review application and asked an officer of the NSW Corrective Service to send it to the (then) Federal Circuit Court of Australia (applicant’s Affidavit at [24] to [25] and Annexure “4”[5]), before being transferred to another correctional centre on 10 August 2020. The applicant says that on 15 September 2020, the person from NSW Legal Aid who had been assisting him contacted the Court Registry to follow up the application and was informed that the Court had not received it, which information she relayed to the applicant (applicant’s Affidavit at [21] to [22]). An email chain which forms Annexure “6” to the applicant’s Affidavit corroborates that exchange between the Court Registry and NSW Legal Aid.
[5] The applicant’s Affidavit Annexures have been identified by his initials and numbers. The initials have been removed for these reasons for judgment so as to eliminate any possibility of his identity being discernible. The numbering used is sufficient to readily identify the Annexures in question.
On 30 October 2020, an employee at the Parklea Correctional Centre sent the application for extension of time to the Court’s Registry by email, copying NSW Legal Aid. After some additional correspondence between the Court and NSW Legal Aid the originating application in this matter was accepted for filing.
In addition to the evidence of the applicant about his delay in making the application, the first Zhang Affidavit annexes materials said to generally show how asylum seekers imprisoned in correctional facilities in NSW face barriers to accessing pro bono legal representation in relation to their immigration status and refugee matters. Counsel for the applicant again highlighted the limited access to a telephone detailed by the applicant (1 to 2 telephones among 150 inmates). This limitation was said to have been compounded by the extensive lockdown periods and isolation as a result of COVID-19 restrictions. The evidence of the applicant was that he was also not allowed to have a personal mobile phone or freely access the internet (applicant’s Affidavit at [8] and [12] to [13]). Material annexed to the first Zhang Affidavit which makes broad generalisations about the difficulties faced by persons in detention (and incarcerated) in obtaining legal assistance is of limited probative value in assessing the circumstances of, and explanation for, a particular applicant’s delay.
The first respondent makes no particular submission about the length of delay, which is somewhat surprising given its extent, and that the longer the delay, the more persuasive the explanation must be to justify extending time: see Vella v Minister for Immigration and Border Protection (2015) 326 ALR 381 at [3] per Gageler J and BBU15 v Minister for Home Affairs [2019] FCA 1324 at [7] per Jackson J.
The delay in the instant case is objectively significant.
The first respondent submits that the explanation proffered is not reasonable and notes the concession by the applicant that he became aware of the Authority’s decision around two or three weeks after it was made (applicant Affidavit at [5]), which was within the relevant time frame to seek judicial review. The first respondent relies on the applicant’s evidence that he had made “many calls” to Legal Aid NSW (applicant’s Affidavit at [9]). The first respondent says that these calls to Legal Aid demonstrate that the applicant contemplated commencing proceedings, and having been told that Legal Aid could not assist, that he also considered doing so without legal assistance, prior to May 2020. The first respondent relies on the evidence of the applicant that the applicant was ultimately informed in 2021 that a grant of Legal Aid had been refused because (based on advice from Counsel) Legal Aid took the view that any application would “not have reasonable prospects of success” (applicant’s Affidavit at [25] and Annexure “10” thereto).
The first respondent correctly observes that the Authority’s decision was sent to the applicant under cover of a letter which provided information about both the availability of translation services and applicable time limits for judicial review. The first respondent says that while the originating application[6] made reference to the applicant not being aware of any time limits, this alone would “generally not be regarded as a satisfactory explanation”: SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 at [38] per Foster J.
[6] [2] of the grounds for extension of time in originating application filed 4 April 2023
While it can be accepted that there were some additional challenges faced by the applicant by reason of his having been incarcerated during the COVID-19 pandemic, this does not fully account for, nor explain the overall delay in this matter. The applicant concedes that he was notified of the Authority’s decision within a timeframe which would have enabled him to seek review in this Court in time. Once that time period expired on 3 October 2018, there were some 18 months between then and the COVID-19 pandemic resulting in any significant restrictions in Australia, and specifically to the applicant. Even if one were to “stop the clock” in relation to the COVID-19 period of (for example) March 2020 to October 2020 when the originating application was eventually filed, this would account for only an approximate quarter of the delay in question.
In the circumstances of this case, and by reference to the length of delay in question, I am not persuaded that the applicant’s explanation for the delay reasonably accounts for his failure to file in time. This weighs against time being extended.
Prejudice
The first respondent does not claim prejudice arising from the delay but says that the mere absence of prejudice is not sufficient to weigh in favour of extending time: see SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
By contrast, if time were not extended the applicant’s judicial review opportunity will be at an end: see s 476A(3)(a) of the Act and MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478 at [18] per Tracey, Perry and Charlesworth JJ.
If the merit of the proposed grounds are such that they would warrant time being extended so they could be considered, then the prejudice to the applicant in being denied the opportunity to ventilate them would outweigh that of the Minister. This issue will be revisited again once the relative merits of the grounds have been considered.
Merits
The focus of the first respondent’s opposition to time being extended is the alleged lack of merit of the applicant’s substantive case for judicial review. The first respondent says that when considered even at a “reasonably impressionistic level” the applicant’s grounds are not sufficiently arguable such that it would be necessary in the interests of the administration of justice to extend time to enable them to be considered on a final basis: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62] per Mortimer J (as her Honour then was). It is contended for the first respondent that as the High Court recently recognised:
there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits.
and it will not fall into error by doing so: see Tu’uta Katoa (supra) [17] to [20] per Kiefel CJ, Gageler, Keane and Gleeson JJ and at [63] to [65] per Gordon, Edelman and Steward JJ.
Of course, the applicant contends that the grounds not only have sufficient merit as to render them at least arguable but says that, if considered on a final basis, the Court would find jurisdictional error to be established.
If time were extended, the applicant seeks to raise the remaining grounds of review in the Amended Application (noting again that ground 5 is not pressed). The grounds will be addressed by reference to their original numbering and are as follows (omitting particulars):
1.The IAA fell into jurisdictional error by constructively failing to exercise its jurisdiction under s 473CC of the Migration Act 1958 (Cth) (Act) in failing to properly consider whether the applicant would face a real risk of being re-prosecuted for his drug offences committed in Australia if returned to Iran.
2.Further, and in the alternative, the IAA fell into jurisdictional error by failing to consider whether by reason of the applicant’s Criminal Charges that as “a necessary and foreseeable consequences of the [applicant] being removed from Australia to a receiving country there is a real risk that the [applicant] will suffer harm”, as required under s 36(2)(aa) of the Act.
3.Further, and in the alternative, the IAA fell into jurisdictional error by failing to consider an integer of the applicant’s claim, namely whether the applicant’s criminal charges were ‘ta’zir offences’ for the purposes of Iranian law.
4.Further, and in the alternative, the IAA failed to give adequate reasons in relation to claims considered by the IAA.
5.…
6.The IAA erred in failing to consider a relevant consideration, namely the 2017 Amendments.
The applicant’s grounds each hinge upon the Authority’s consideration of harm which might be faced by the applicant on return to Iran by reason of the Charges. Specifically, whether or not the applicant might be the subject of prosecution under Iranian law on return, by reference to Article 7 of the Penal Code. The applicant now says that there exists a possibility that if he were re-prosecuted, he may even be subjected to the death penalty on return.
The applicant says that the issue, having squarely arisen on the materials (and been considered by the delegate) the Authority was required to address it, and address it properly. The proposed grounds of review allege the various ways in which the Authority is said to have failed to do so.
On the face of the grounds, I disagree with the first respondent’s characterisation of the grounds as having no reasonable prospects of success at the requisite level of assessment. I am of the view that in the circumstances of this case, the grounds raised for the applicant do have an impressionistically sufficient prospect of success as to weigh in favour of time being extended so that they can be considered on a final basis as to whether the Authority’s decision is affected by legal error.
Conclusion regarding extension of time
In circumstances where the applicant’s explanation for delay is not considered particularly persuasive, but where the proposed grounds have been found to be sufficiently arguable (and, accordingly, the prejudice to the applicant of time not being extended would outweigh any prejudice to the Minister) I am satisfied that it is necessary in the interests of the administration of justice to extend time. I will so order.
Substantive grounds of review
Each of the grounds of review is directed to the manner by which the Authority purportedly considered the implied claim. The findings of the Authority on this issue warrant setting out in full, and are brief enough to do so, albeit their brevity is not contended as being a basis for error.
The substantive findings in relation to the implied claim can be found at [26] to [28] of the Authority’s decision (CB 162 to 163) and are as follows:
26. The delegate considered whether the applicant would face harm on return because he is currently on remand at a correctional centre after being charged with two drug offences in Australia. At no stage has the applicant raised this as reason as to why he fears returning to Iran including during his protection visa interview which was conducted while held at the correctional centre.
27. Article 7 of the Islamic Penal Code (the Penal Code) outlines the circumstances under which an Iranian national could be prosecuted and punished in Iran for a crime that had been committed outside Iran. The Penal Code stipulates that the committed crime needs to be deemed an offence under the law of Iran and that if the crime committed abroad is punishable by ta’zir, the Iranian national must not have been already tried and acquitted in the place of the commission of the crime or in the case of conviction the punishment is not, wholly or partly, carried out against him. No reports have been located that refer to specific examples of Article 7 being applied. A 2014 article published in Zeithschrif fur die gesamte Strafaechtswissenschaft noted that there had been no reports of this article being applied in practice in recent times.
28. Having regard to the evidence before me, including the country information regarding double jeopardy and the absence of any information indicating that the Iranian authorities are aware of the applicant’s case or likely to become aware of it, I am not satisfied that there is a real chance that the Iranian authorities would pursue the applicant and re-prosecute him for this matter or that he would face a real chance of harm on this basis.
The Authority’s reasons in relation to the complementary protection criterion (in relation to all claims) summarise the relevant legislation (CB 164 at [35] to [36]) and say:
37. I have otherwise found the applicant does not face a real chance of harm on any or the bases claimed now or in the reasonably foreseeable future. As ‘real risk’ involves the same standard as ‘real chance’, I am also not satisfied that the applicant faces a real risk of significant harm on these bases.
Next, the material before the delegate and the Authority included an English language version of the IANL. The IANL appears to include the following offences which involve both poppies and/or opium and attract the death penalty:
(a)Article 2(4) – cultivating poppies for the purpose of producing narcotics;
(b)Article 4(4) – smuggling, producing, distributing, dealing or selling opium and opium juice (more than 5kg);
(c)Article 5(4), (5) and (6) – anyone who keeps, conceals or carries 5 to 20kg (third offence), 20 to 100kg (second offence), 100kg (second offence);
(d)Article 6 – conduct in Articles 4 and 5 committed multiple times with a total quantity of more than 5kg;
(e)Article 11 – armed smuggling of narcotics; and
(f)Article 12 – smuggling into prisons, barracks or centres for the rehabilitation of addicts.

Lastly, and before considering the proposed grounds of review, it is necessary to set out what appears to be the import of the Penal Code.
The delegate set out the following translation of Article 7 of the Penal Code (CB 134 (see [14] above)). The chapeau to Article 7 says (emphasis added):
In addition to the cases mentioned in the articles above, any Iranian national who commits a crime outside Iran and is found in, or extradited to, Iran shall be prosecuted and punished in accordance with the laws of the Islamic Republic of Iran, provided that:
Understood by its ordinary meaning, the use of the word “shall” in the chapeau of Article 7 of the Penal Code appears to have a future likelihood, or potentially even mandatory effect, as opposed to there being a remoteness or discretion as to whether re-prosecution will take place.
The provisions of Article 7 of the Penal Code, go on to set out the exceptions to re-prosecution. They are if:
(a)the offence with which the person has been charged is not an offence under the laws of Iran;
(b)if it is an offence, that it is a ta’zir[7] offence, for which the accused has already been tried and acquitted, or where the sentence has been carried out (including in part); or
(c)under Iranian law, there would be a basis upon which the prosecution might be discontinued.
[7] See footnote 1 above
In advancing his grounds of review, the applicant contends that the Authority arrived at its conclusions (CB 162 to 163 at [27] to [28]) without certain material facts about the Charges in Australia, such that it could not undertake a proper analysis of the implied claim of re-prosecution. In particular, the applicant says that the Authority failed to consider whether the Charges, if resulting in conviction in Australia, would relevantly constitute “offenses under the law of the Islamic Republic of Iran” for the purposes of Article 7 of the Penal Code (Offences).
The material facts in question (defined in the applicant’s submissions as the “Missing Facts”) are said to be:
(a)what the Charges in Australia specifically were;
(b)whether the conduct resulting in the Charges constituted Offence/s under the law of Iran (presumably by reference to the IANL); and
(c)if so, whether any resulting Offences could be properly categorised as being ta’azir offences.
Ground 1
By ground 1, the applicant alleges error on the part of the Authority constituted by a constructive failure to exercise jurisdiction by failing to properly consider whether the subject matter of the implied claim would cause the applicant to face a real risk of persecution. For the reasons which follow, this ground is established.
The obligation of the Authority to conduct a review is contained in s 473CC of the Act, which provides:
Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
The applicant says that in order to either affirm the decision under review, or remit it for reconsideration, the task for the Authority was to determine whether the applicant was entitled to a protection visa.
The applicant accepts that he did not actively advance a claim to fear harm on the basis of potential re-prosecution and punishment to the Authority (or at any earlier stage). However, the applicant maintains that by failing to properly consider whether he would face a real risk of being re-prosecuted for his crimes committed in Australia if returned to Iran, the Authority did not properly review the decision referred to it and, therefore, did not comply with s 473CC of the Act.
Specifically, it is contended that in the absence of findings which weighed the effect of the Charges by reference to potential Iranian Offences (presumably under the IANL), the Authority was not then in a position to consider:
(a)the application of Article 7 of the Penal Code; and
(b)therefore, whether there was a real chance of harm or real risk of significant harm to the applicant on return.
Absent the Missing Facts, the applicant says the Authority was also unable to reach a conclusion as to whether he fell within a particular social group (comprised of persons who imported prohibited drugs over 50kg) and whether the consequences of his offending under Iranian law (including the death penalty) would give rise to a “well-founded fear of persecution”. As such, the applicant says that the Authority failed in its statutory task.
The applicant says that by [27] of its findings and reasons, the Authority simply repeated certain findings of the delegate and that the only reference in that paragraph to source material is to the German article referred to at [16] and [17] above and that the reference to “the evidence before me, including the country information regarding double jeopardy” does not elucidate the findings further.
The first respondent submits that each of the delegate, and the Authority, considered the question of whether the applicant would face a real chance of being re-prosecuted if returned to Iran, despite:
(a)the applicant having not made such a claim expressly (acknowledging that the visa application pre-dated the applicant’s arrest, while his SHEV interview occurred while he was being held on remand); and
(b)that the applicant had not been convicted in Australia as at the time of either the delegate’s decision or the Authority’s decision.
The first respondent further submitted that each of the delegate, and the Authority, also clearly:
(a)knew the nature of the Charges (citing the delegate’s decision at CB 130, 131 and 133 and the Authority’s decision at CB 162 at [26]); and
(b)proceeded on the basis that the Charges, if resulting in conviction, arose from conduct that could be an offence under Iranian law (CB 162 to 163 at [28]).
The first respondent says that the reasons of the Authority are not to be construed “minutely and finely with an eye keenly attuned to the perception of error”, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, citing Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.
The first respondent says that the Authority found it did not appear likely that the applicant would be prosecuted again in Iran even if convicted in Australia, and even if he was found to have committed a non-ta’zir offence.
The first respondent went on to contend (emphasis added) that the:
IAA also noted that there was no evidence to suggest that Iranian authorities were aware of or likely to become aware of the Applicant’s arrest.[8]
[8] First respondent’s written submissions filed 26 April 2023 at [36]
Lastly, the first respondent made reference to the Authority having sought out, and considered, a DFAT Country Report dated 7 June 2018 which post-dated the 2017 amendments to the IANL (2017 Amendments) and replaced the 21 April 2016 report which had been before the delegate (CB 157).
Consideration
It may be accepted that where a decision maker simply fails to consider the case advanced by an applicant (or fails to deal with claims squarely arising), this can constitute constructive (or even actual) failure to exercise jurisdiction such that the decision should be set aside: see NAPE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1124 at [57] per Hill J and NBFP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 95 at [35] per Kiefel (as her Honour then was), Weinberg and Edmonds JJ. Similarly in order to “review” a decision, the decision maker must consider “for itself” the material before it and make its own findings based on that material: Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32] per Kenny, Griffiths and Mortimer JJ (as her Honour then was) and MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154 at [58] per Tracey, Murphy and Mortimer JJ (as her Honour then was).
The applicant says that in order to undertake its statutory review task, the Authority first needed to satisfy itself that the Offences were ta’zir. Its failure to do so is said to be one of the indicia of the Authority having failed to properly consider whether the applicant would face a real risk of persecution on return to Iran. The need, or otherwise, to consider this issue is a facet of several of the grounds of review.
The first respondent resists that proposition by saying that whether the Charges, if they resulted in a conviction, would equate to ta’zir crimes in Iran was not a matter upon which the Authority was required to reach a concluded view. That is said to be for reasons which include the applicant having not raised any claim of fearing return on that basis, and the absence of any evidence to suggest that Iranian authorities were (or were likely to become) aware of the Charges. It is also said for the first respondent that the Authority had a proper basis for concluding that the applicant was unlikely to be re-prosecuted in Iran (whatever the outcome of the Charges) and whether characterised as ta’zir or not, because the applicant had not yet been convicted, and whether he would be convicted of the Charges or some other (perhaps different, perhaps lesser) offences was unknowable at that time.
It is well-established that whether a claim not expressly advanced must be considered will depend upon the facts of an individual case, but should not “depend for its exposure on constructive or creative activity”: see NABE v Minister for Immigration (2004) 144 FCR 1 at [58] per Black CJ, French (as his Honour then was) and Selway JJ. An unarticulated claim should “arise tolerably clearly from the material itself”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] per Allsop J (as his Honour then was); Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at [70] per Mansfield, Gilmour and Foster JJ.
In the instant case, I find that the claim did so arise. Once the potential re-prosecution of the applicant in Iran had been identified by the delegate as being an implied claim for protection (in this case because it arose squarely on the materials) the Authority was required to consider the possibility of the potential re-prosecution and punishment of the applicant on return to Iran unless the applicant either:
(a)expressly abandoned it (which he did not do); or
(b)the claim no longer arose on a factual basis as at the time of the Authority’s decision.
The latter prospect seems only likely to have occurred if the applicant had been acquitted by the time of the Authority’s decision and, even then, it seems that this may have required an analysis by the Authority as to the effect of any such acquittal by reference to the characterisation of the crime by Iranian law.[9]
[9] Given that acquittal seems only to be an exception which applies to ta’zir crimes but not an exception to crimes punishable by hadd
As such, more was required from the Authority in terms of an engagement with the Charges in Australia and the Offences to which they might equate, than is exhibited by simply acknowledging the existence of Charges.
The focus by both parties on the issue of whether the Charges would have equated to a ta’zir crime distracts somewhat from the broader assessment required which the delegate undertook in assessing the implied claim, but the Authority did not.
In essence, the material before each of the delegate and the Authority was that the Iranian penal code potentially mandated re-prosecution for all crimes which were offences under Iranian law, unless either clause 7(b) or (c) applied. The first of those exceptions was 7(b), namely whether either crime of which the applicant may be convicted would equate to being ta’zir, and the sentence had been wholly or partly carried out in the place in which it was committed.
However, the starting point ought to have been whether the Charges equated to crimes under Iranian law. There was a possibility that the crime/s were punishable by hadd, if they equated to crimes deriving from the Quran.
The delegate reached a conclusion on the basis that the clause 7(b) exception applied in the applicant’s case, namely that even if the applicant were to be convicted in Australia of his crimes, he would not face harm constituted by re-prosecution because the crimes in question were ta’zir crimes (and presumably that he would serve his sentence in whole or part). In essence, the finding that the crimes were ta’zir was the manner by which the delegate could proceed to make a finding that the applicant would not face harm.
While it can be accepted that reasons of the Authority are not to be construed with an eye keenly attuned to the perception of error, the submissions for the first respondent ask the Court to approach the reasons of the Authority with a gloss which is unavailable in the instant case. In XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535, upon which the first respondent also relied, the Full Federal Court (Perry, Banks-Smith and Anderson JJ) found at [27] that a beneficial construction is to be adopted in construing the reasons of the decision-maker, saying:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14]- [15] (Allsop J (as his Honour then was)).[10]
[10] See also EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 at [34] per Raper J
Undertaking the requisite, beneficial reading of the Authority’s reasons for decision, I am not satisfied that the Authority properly considered the implied claim. As a result the Authority failed to exercise its jurisdiction to undertake the review in accordance with s 473CC of the Act.
Despite the Authority having reached the same conclusion as the delegate, the basis for that conclusion is simply not demonstrated by the reasons for decision. The Authority expressed an ultimate conclusion that the applicant would not face harm without properly reasoning as to why. To the extent that the bare basis for that conclusion was said to be because Iranian authorities did not appear to be aware of the Charges and were not likely to gain such an awareness (see [104] to [105] below), that was not a finding open to the Authority on the material before it. While the finding about the knowledge of Iranian authorities is referred to by the first respondent’s submissions as being an additional note see [88] above) it is, in fact, the substance of the Authority’s findings in relation to the implied claim. It is not an aside or an alternate basis for the conclusion.
Next, the reasoning at [28] of the decision is expressed with a such a degree of imprecision that it is not possible to accept the interpretation contended for by the Minister at [85(b)] above. This imprecision includes:
(a)at [28], the Authority first referred to the “applicant’s case” (emphasis added). It is unclear whether by use of the word “case” the Authority intended to refer to the fact that the applicant was the subject of Charges, to refer to a Court proceeding by which the applicant would be tried in respect of the Charges, to the outcome of such proceedings (namely whether or not a conviction was entered) or to any sentence imposed as a result;
(b)the Authority continued in the same sentence to say that there was an absence of information indicating that “the Iranian authorities are aware of the applicant’s case or likely to become aware of it” (emphasis added); and
(c)there is a similar lack of specificity later in the same sentence when the Authority then describes there not being a real chance that Iranian authorities would “re-prosecute him for this matter” (emphasis added) or that he would face a real chance of harm “on this basis” (emphasis added).
The first respondent has sought to construe the final expression in [28] of the Authority’s reasons “or that he would face a real chance of harm on this basis” as meaning that even if the applicant were to be re-prosecuted that he would not face a real chance of harm. However, the entirety of [28] of the decision, even when beneficially construed, is so vague as to not support such an interpretation.
Leaving aside an array of plausible scenarios in which the fact of a conviction of the applicant might have come to be known by Iranian authorities (including the possibility that the applicant may be required to disclose the information himself, for example on an incoming passenger card), the Authority’s conclusion was based upon mere speculation which was not readily available on the material before it. While not arising in the context of credibility findings (CfSZHYHv Minister for Immigration and Citizenship [2009] FCA 1001 and DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175), that assumption and the speculation which followed, was unwarranted in the circumstances of this case.
Next, it can be readily accepted that at the time of the Authority’s decision, the Charges had not yet crystallised into a conviction. However, that did not absolve the Authority from needing to engage in a reasonable hypothetical of what might flow if a conviction was entered, as the delegate had done. In essence, the Authority needed to assess the implied claim by applying a reasonably available hypothesis, based on the facts and materials before it. What it did instead was to avoid that exercise by making an assumption based on a lack of information, and about which it had sought no material from the applicant, nor from any other source. Namely, the unlikelihood or otherwise of the Charges and/or any consequential conviction (and/or sentence served) coming to the attention of the Iranian authorities.
Having reached its bare conclusion that the applicant would not face a real chance of harm, the Authority also failed to apply the “what if I am wrong?” test: see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60] to [67] per Sackville J. While the test in Rajalingam (supra) arose in circumstances regarding a consideration of past harm as a guide to future harm, the principle is apposite to the circumstances of the present case. At [60] of Rajalingam, Sackville J said the following (emphasis added):
…the ultimate question before … the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
By making the assumption about Iranian authorities not coming into certain knowledge about the applicant (undefined though that knowledge was (see [103] to [105] above)) the Authority foreclosed reasonable speculation about what might happen to the applicant if the Charges did become known to the Iranian authorities.

To the extent that the first respondent also seeks to rely on the Authority having sought out, and considered, a DFAT report dated 7 June 2018, a review of that report reveals that it does not make reference to (nor consider) the issue of re-prosecution. As such, the submission about the DFAT report does not take the matter further.
To the extent that the Authority did not consider the implied claim by reference to any particular social group (comprised by reference to persons who imported prohibited drugs over 50kg) I am not persuaded that this was a claim which so squarely arose as to require consideration, such that the failure to do so is, or contributes to, an error.
While ground 1 is broadly cast, I agree with the contentions of the applicant that by purporting to reason in the manner it did (absent the Missing Facts and an analysis of them), the Authority failed to properly consider whether the applicant would face a real risk of persecution on return to Iran, constituted by his potential re-prosecution for crimes committed in Australia. The failure to properly consider the implied claim in reaching that conclusion was a failure to undertake a review of the decision and, thus, a failure of the Authority to exercise its jurisdiction pursuant to s 473CC(1). This constitutes a jurisdictional error.
Ground 2
Ground 2 is specifically directed to the Authority’s consideration of the complementary protection criterion in s 36(2)(aa) of the Act. The Authority was required to assess whether there was a real risk the applicant would suffer significant harm as a result of his removal from Australia.
The applicant acknowledges the general proposition that in considering the complementary protection criterion, the Authority was entitled to refer to, and rely on, factual findings made in respect of a claim under s 36(2)(a, citing DQU16 v Minister for Home Affairs (2021) 273 CLR 1 at [27] per Kiefel CJ, Keane, Gordon, Edelman and Steward JJ. The applicant also noted the observation of the plurality in DQU16 (supra) at [24]:
That the standards by which the relevant risks of harm are to be assessed are the same does not address the fact that the statutory question, including, importantly, the relevant kinds of harm against which the risks are to be assessed, is substantively different in each provision.
However, the applicant alleges that, in the absence of the Missing Facts (see [76] above) and an analysis of them, the Authority was unable to properly consider whether as a “necessary and foreseeable consequence” of his removal to Iran, the applicant would face significant harm, such that its conclusion that he would not, was not open to it.
Further, the applicant says that the reasons given at [35] to [38] of the Authority’s decision demonstrate that there was no consideration of whether the Charges would equate to any Offences under Iranian law, so as to enliven Article 7 of the Penal Code, such that an assessment of s 36(2)(aa) of the Act could then be undertaken. The applicant says that in circumstances where there had been no specific identification by the Authority of what the Charges in Australian even were, insofar as the Authority sought to rely on its previous findings, the statements upon which it was relying were so broad, that it is difficult to discern which anterior (s 36(2)(a)) findings were intended to be imported into the ambit of the s 36(2)(aa) finding.
In resisting this ground, the first respondent says that the Authority directly referred to the complementary protection criterion at [35] to [37] of the decision, indicia of which include the summary at [36] and the conclusion expressed at [37]. The first respondent says that the Authority was entitled to rely on its Convention findings in assessing whether there was a real chance of significant harm for the purpose of complementary protection, citing MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J.
As this Court found in DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163 at [81] to [82]:
It is not in dispute that a decision-maker can have regard to anterior findings about the refugee criterion in considering whether an applicant meets the complementary protection criterion: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54] to [57] per Robertson J; SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ.
However, in circumstances where the anterior factual findings relied upon are themselves the subject of a jurisdictional error constituted by having constructively failed to exercise jurisdiction by failing to consider the claim under the refugee criterion, this will not assist even if the cross-referencing exercise would be otherwise valid.
That the Authority simply referred to the complementary protection criterion does not demonstrate that it properly applied it, nor that the Authority undertook the requisite assessment required by s 36(2)(aa) of the Act. Leaving aside the scant, cross-referral to earlier findings (which have themselves been found in the course of determining ground 1 to not have been properly made), the language of the statute required the Authority to consider whether, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, he would suffer significant harm. In the present case, it did not.
I agree with the submission of the applicant that the Authority’s reference at [26] (CB 162) to the applicant having “been charged with two drug offences in Australia” does not sufficiently reflect an appreciation of the Charges relevant to the question of any analogous offences under the laws of Iran, and therefore, the risk of likely re-prosecution in Iran. Given the scope of what conduct might be included with the description “drug offence”, it was relevant for the Authority to reflect upon the nature of the Charges, including the quantity and nature of the drug, both of which in this case could objectively be described as being significant. That is particularly so given that the array of crimes arising under the IANL which might have been relevant to the applicant’s circumstances (see [70] above) which would require consideration by reference to the complementary protection criterion also.
A proper assessment process required the Authority to identify, and consider, the foreseeable consequences which might confront the applicant on return, relevant to the statutory test for harm. For the reasons already given in relation to ground 1, it was not open to the Authority to simply dispose of the implied claim of potential re-prosecution, by reference to a baseless assumption that the Charges were unlikely come to the attention of Iranian authorities. By that pre-emptive finding, the Authority stopped short of considering the foreseeable consequence/s of the applicant being returned to Iran and, therefore, gave rise to a consequential failure on the part of the Authority to undertake the assessment required of it by s 36(2)(aa) of the Act. I find this to be an error.
To the extent that this ground is affected by the error already found by ground 1, namely that the Authority relied on conclusions which were themselves not properly reached, the error in ground 2 is also jurisdictional. If I were wrong in that regard, and the error is subject to an assessment as to materiality, then applying a counterfactual, had the Authority not failed to consider whether by reason of the Charges there was a real risk the applicant would suffer significant harm as required by s 36(2)(aa) of the Act, this could realistically have resulted in a different decision being made: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48] to [50] per Bell, Gageler and Keane JJ. Accordingly, the error would be material.
Having failed to apply the complementary protection criterion, the Authority similarly failed to exercise jurisdiction and ground 2 establishes a jurisdictional error.
Ground 3
Ground 3 focuses upon an integer of the implied claim.
Again, the applicant accepts that he did not expressly make a claim about fearing harm on return to Iran during his SHEV interview on 18 June 2018, nor did he advance the possibility of suffering significant harm upon return, despite being in criminal custody at the time of that interview and utilising the opportunity to draw other material that had not previously formed part of his application to the interviewer’s attention. Nevertheless, the applicant contends that the Authority (and before it, the delegate) did recognise that the claim should be considered.
The applicant says that the Authority, having embarked upon consideration of whether he should be granted a protection visa, was required to determine whether he had a well-founded fear of persecution or whether there was a real risk he would suffer significant harm. The applicant submits that in order to arrive at this conclusion, the Authority needed to determine whether or not the Offences were ta’zir. Having not done so, the applicant says the Authority failed to consider an integer of the implied claim for protection.
Similar to grounds 1 and 2, the first respondent contends that the Authority recognised it was necessary to refer to the Charges, and to consider the likely consequences for the applicant upon return to Iran if ultimately convicted. The first respondent contends that a conclusion as to whether the Charges – if they resulted in a conviction in Australia – would have equated to ta’zir crimes was not a matter upon which the Authority was required to reach a concluded view. The basis for this submission relies on the matters already set out at [92] for the first respondent.
It is not in dispute between the parties that the Authority did not make express findings about whether the Charges/any conviction would equate to ta’zir offences in Iran. The question raised by this ground is whether that failure to do so meant that the Authority failed to consider an integer of the implied claim.
As already found above in respect of ground 1, by reference to the nature of the Charges and what appears to be the likely, if not mandatory, application of Article 7 of the Penal Code to offences committed outside of Iran, the Authority did need to consider how the Charges in Australia might intersect with the IANL for the purposes of the Penal Code, to determine whether the applicant may be re-prosecuted, and assess any harm by reference to that potential state of affairs.
The Authority appeared to decide that the applicant would not be re-prosecuted because the authorities would be unlikely to discover the existence of the Charges. On the first respondent’s case, the Authority is said to have found that even if the applicant were re-prosecuted on return to Iran, he would not face a real chance/risk of harm as a result. For the reasons set out at [104] above, this interpretation is not one to which the Court is prepared to accede.
Given the likely, if not mandatory, re-prosecution by reference to Article 7 of the Penal Code unless an exception applied, the Authority needed to analyse the Charges. The three extant prospects were, presumably that that the Charges in Australia would:
(a)not be crimes at all in Iran;
(b)be equivalent to/constitute a hadd crime; or
(c)be equivalent to/constitute a ta’zir crime which gave rise to additional bases upon which re-prosecution may not take place.
Given that the material before the Authority indicated that drug crimes could attract penalties including death,[11] any conclusion that the applicant would not suffer harm, without an assessment of the nature of the Charges and how they might equate in Iranian law was a significant, if not essential, integer to consider prior to reaching that conclusion.
[11] See [70] above
By curtailing its assessment to simply express a conclusion, the Authority failed to consider an integer of the implied claim, namely whether the Charges of constituting offences under the laws of Iran constituted an exception by being ta’zir offences, stopping short of undertaking an assessment of the impacts of a possible conviction on the likelihood of re-prosecution in its entirety, by reference to the s 36(2)(a) and (aa) criteria. Accordingly, ground 3 is also made out.
Applying a counterfactual, had the Authority not failed to consider this integer but instead considered the nature of the Charges, there was a realistic possibility that the Authority could have reached a different decision. Accordingly, the error in ground 3 is material.
Ground 4
By ground 4 the applicant alleges that the Authority erred by failing to give reasons in accordance with s 473EA of the Act, which provides:
Written statement of decision
(1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
How and when written decisions are taken to be made
(2) A decision on a review is taken to have been made:
(a) by the making of the written statement; and
(b) on the day, and at the time, the written statement is made.
(3) The Immigration Assessment Authority has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.
Return of documents etc.
(4) After the Immigration Assessment Authority makes the written statement, the Authority must:
(a) return to the Secretary any document that the Secretary has provided in relation to the review; and
(b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.
Validity etc. not affected by procedural irregularities
(5) The validity of a decision on a review, and the operation of subsection (3), are not affected by:
(a) a failure to record, under paragraph (1)(c), the day and time when the written statement was made; or
(b) a failure to comply with subsection (4).
In support of this ground, the applicant relies on Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 at [49] per McKerracher, Gleeson and Burley JJ found as follows (emphasis added):
In our respectful view, the error of the learned primary judge arose because he conflated the requirement under s 473DB(1) for the IAA to conduct a review by considering the review material, with the requirement under s 473EA(1)(b) to provide reasons for the decision. The obligation to give reasons is not commensurate with the obligation to consider the review material. Section 25D of the Acts Interpretation Act 1901 (Cth) applies to s 473EA of the Act; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (per Flick, Markovic and Banks-Smith JJ) (BVD17) at [47]–[49]. The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); BVD17 at [45]; AQR17 v Minister for Immigration & Border Protection [2018] FCA 901 at [14]–[15].
The applicant says the Authority’s failure comply with its duty to give reasons is demonstrated in three ways:
(a)the Authority did not set out its understanding of the Charges, how it arrived at a conclusion that any Offences would or would not be considered ta’zir, nor how it determined how Article 7 of the Penal Code applied to the applicant’s circumstances;
(b)in making reference to the German article, the Authority did not explain how it came to understand the contents thereof, which is significant because the article is written entirely in German and there is no evidence to suggest or demonstrate that any translation was given to the Authority; and
(c)the Authority did not disclose its reasoning process in determining whether Australia has protection obligations in respect of the applicant. Rather, the Authority is said to have made a conclusory statement (CB 164 at [37]) that because there was no real chance of harm there was also no real risk of significant harm for the test under s 36(2A). The applicant says the Authority failed to set out its consideration of whether the applicant would be subjected to any form of significant harm as identified by s 36(2A) of the Act.
The applicant submits that the Authority’s failure to include the above material facts and findings is said to demonstrate a failure to fulfil the statutory obligation to give reasons pursuant to s 473EA of the Act.
The first respondent submitted that the delegate’s reasons identify the source of findings about certain crimes committed by Iranian nationals abroad being able to be prosecuted in Iran, but there also being no recent reports of this occurring as per a July 2015 report published by the Austrian Centre for Country of Origin and Asylum Research and Documentation.[12] That article discusses certain findings which are able to be drawn from the German article. The first respondent says that although the Authority’s reasons do not directly refer to the July 2015 report, it had access to all materials which had been before the delegate, as well as to the delegate’s reasons.
[12] First Zhang Affidavit “Exhibit EZ-02” at 49 to 291 and Transcript 1 May 2023 at 15.17
The first respondent also submits that the fact the Authority’s decision is less comprehensively referenced than the delegate’s, does not expose any error. The first respondent notes that it is well established the Authority is not required to refer to every piece of evidence and every contention made by an applicant in order for its reasons to be adequate: citing Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46] to [47] per French, Sackville and Hely JJ; ADX17 v Minister for Immigration and Border Protection [2018] FCA 1967 at [39] to [40] per Moshinsky J; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [14] per Gray, Tamberlin and Lander JJ; and DHB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 714 at [29] per Judge Obradovic.
In respect of this ground, the first respondent again submits the Authority clearly understood the nature of the Charges and did not need, ultimately, to conclude as to whether the applicant would have been considered to have committed a ta’zir offence in order to have given reasons.
As was recognised in EEI17 ((supra) at [49]) there is a distinction between the requirement under s 473DB(1) that the Authority conduct a review by considering the review material and the requirement under s 473EA(1)(b) to provide reasons for that decision. In EEI17, unlike the present case, it was not in dispute that the Authority had considered each of the claims as advanced by the visa applicant (who was the respondent to the appeal): see EEI17 (supra) at [48]. That the obligation to give reasons is not commensurate with the obligation to consider the review material does not foreclose the possibility that in some cases, the failure can be in respect of both.
In the present case, I am not satisfied the Authority failed to discharge its duty under s 473EA. It gave reasons. The deficiencies in those reasons reflect that the Authority failed to undertake its review substantively, but there was not a failure to give reasons per se.
First, for the reasons which have already been given in respect of grounds 1 and 3, it can be accepted that the Authority’s reference at [26] of its reasons to the existence of charges for “two drug offences in Australia” was insufficient to establish an appreciation on the part of the Authority of the nature of the Charges relevant to the question of whether they equated to Offences under the laws of Iran and therefore the question of likelihood of re-prosecution in Iran and an assessment of any harm which might result. However, that speaks to a substantive failure to undertake the review.

Next, despite the detailed manner in which the delegate addressed the German article and its contents (see [16] to [18] above), the sum total of the Authority’s reference to the German article was to say:
A 2014 article published in Zeithschrif fur die gesamte Strafaechtswissenschaft noted that there had been no reports of this article being applied in practice in recent times.
There is no footnote or other pinpoint reference to ascertain how the Authority came to understand the content of the German article. It can be accepted that the decision-maker is not required to refer to every piece of evidence before it, which is moreso when regard is had to the content of the obligation on the specific terms of the Authority’s obligation in s 473EA to give reasons: see ETA067 v Republic of Nauru (2018) 360 ALR 228 per Bell, Keane and Gordon JJ at [13]. However, in the present case there is significant doubt that the Authority considered (for itself) the German article to which it referred. Again, this speaks not to the reasons themselves, but to the underlying process and a failure to conduct the review.
The Authority’s purported reliance on the German article occurred in the absence of a translation of that article and, unlike the delegate, the Authority did not cite any secondary source by which it might be taken to have reached an understanding of the German article’s content. I reject the first respondent’s contention that the Authority should be assumed to have obtained its understanding from the secondary material,[13] in the absence of this being said, pinpointed or cited with attribution. If, in fact, the Authority gained its understanding of the German article by reference to the source material (as now advanced by the first respondent), then in the circumstances of this particular case, it ought to have said so as part of discharging it duty to refer the evidence or other material on which its findings were based.
[13] Ibid
As the reasons presently stand, it is open to infer from the summary of the German article given by the Authority which so closely reflected the delegate’s reasons, that the Authority was simply repeating the delegate’s findings without having reviewed the material, and reasoned for, itself. Again this goes to the failure to review, but not a failure to give reasons in the s 473EA sense.
Accordingly ground 4 is not made out.
Ground 6
By the final ground, the applicant contends that while the delegate’s reasons expressly referred to the 2017 amendments to the IANL the Authority made no reference at thereto, despite there being a real possibility that its consideration of the chance/risk of harm might have differed as a result. The applicant says that the consequences of the 2017 amendments could result include his being subjected to death, or deprivation of his liberty, for convictions in respect of which he had already been punished. Further, the applicant highlights that the 2017 Amendments post-dated the reports which were relied upon by the delegate and “one might assume for present purposes”, the Authority. The applicant says that given the nexus between the 2017 amendments and the assessment of the claims under s 36(2)(a) or (aa) the Authority ought to have considered those amendments in order for its decision to be lawful.
The first respondent submits that the Authority had regard to the delegate’s reasons, as well as the materials referred to by it, and that the presumption referred to in the preceding paragraph (that like the delegate the Authority had relied on reports which pre-dated the amendments) is without foundation. The first respondent relies on the statement by the Authority at [3] of its reasons (CB 157) where it stated:
I have obtained Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report: Iran”, 7 June 2018 which relevantly reports on the situation for returnees to Iran. It has been prepared specifically for the purpose of protection status determination and updates the DFAT report on Iran published on 21 April 2016 which was before, and relied upon by, the delegate. I am satisfied there are exceptional circumstances to justify consideration this new information.
However, the first respondent submits that the Authority appropriately considered the possible consequences to the applicant by reason of the Charges. It was contended for the first respondent that specific reference to, or consideration of, the 2017 amendments thereafter, was superfluous.
It is strictly unnecessary to determine this ground which on one view is subsumed within the scope of the broader errors and, in particular, the fact that the Authority failed to properly consider the Charges as discussed in respect of ground 1 (being a matter expressly relied on by the first respondent in opposition to this ground (see [152] above)).
It is true that the delegate’s reasons, to which the Authority said it had regard, expressly noted[14] that the 2017 amendments to the IANL had the effect of adding a new article (article 45): see first Zhang Affidavit (“EZ-02” at p 487). Article 45 added additional sentencing requirements upon persons who import more than 50 kilograms of certain substances, if one of the following three aggravating factors were also present in the commission of the crime:
(a)a weapon was drawn;
(b)the perpetrator has the role of leader, or as a financial supporter or investor, or used children and adolescents or “insane persons” to commit a crime on his behalf; or
(c)the perpetrator has been sentenced to death or more than 15 years imprisonment.
[14] CB 134 at footnote 69
The first respondent submitted that none of the newly-introduced introduced factors were obviously engaged in the applicant’s case, although the applicant did ultimately admit that he was offered payment by a relative.
The contention that the Authority fully considered the impact of the Charges, has already been rejected by grounds 1 and 3. As such, the conclusions to which the Authority might have come if it had firstly properly considered the nature of the Charges and/or potential Offences resulting and then any potential consequences to the applicant, if re-prosecuted after the commencement of the amendments, cannot be comprehensively assessed. To do so requires speculation to be added to a counterfactual assessment of the initial process that the Authority failed to undertake.
The 2017 amendments, prima facie, appear to potentially result in more severe penalties if certain factors are present, including the death penalty. It seems that consideration of them might be relevant to any assessment by the Authority of the implied claim. Whether (and how) the 2017 amendments might be relevant and applicable to the Authority’s task will be a matter for it to consider on remittal while re-determining the matter according to law by reference to the other errors established.
Ground 6 is also not made out as a jurisdictional error, in and of itself.
CONCLUSION
The applicant has succeeded in establishing jurisdictional errors in respect of grounds 1, 2 and 3, and writs shall issue.
I will hear the parties as to costs.

I certify that the preceding one hundred and sixty (160 numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.
Associate:
Dated: 20 October 2023

File number(s):	SYG 2510 of 2020
Judgment of:	JUDGE GIVEN
Date of judgment:	20 October 2023
Catchwords:	MIGRATION – Application for extension of time granted where reasonably arguable grounds outweigh other relevant factors – where Immigration Assessment Authority failed to exercise jurisdiction and conduct review by not properly considering implied claim that applicant may be re-prosecuted on return to Iran for crimes committed in Australia
Legislation:	Migration Act 1958 (Cth) ss 36, 473CC, 473DB, 473EA, 477
Cases cited:	ADX17 v Minister for Immigration and Border Protection [2018] FCA 1967 Applicant WAEE v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 236 FCR 593 BBU15 v Minister for Home Affairs [2019] FCA 1324 BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175 DHB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 714 DOY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 163 DQU16 v Minister for Home Affairs (2021) 273 CLR 1 DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 382 ALR 246 Hunter Valley Developments Pty Ltd v Choen, Minister for Home Affairs and Environment (1984) 3 FCR 344 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 NABE v Minister for Immigration (2004) 144 FCR 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 SZHYHv Minister for Immigration and Citizenship [2009] FCA 1001 SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17 SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 Vella v Minister for Immigration and Border Protection (2015) 326 ALR 381 XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division:	Division 2 General Federal Law
Number of paragraphs:	160
Date of hearing:	1 May 2023
Place:	Sydney
Counsel for the Applicant:	Mr J Widjaja
Solicitor for the Applicant:	Human Rights For All
Counsel for the Respondents:	Ms C Roberts
Solicitor for the Respondents:	Australian Government Solicitor

SYG 2510 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ERO20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	20 OCTOBER 2023