HGQ24 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

HGQ24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1476

File number(s):

BRG 576 of 2024

Judgment of:

JUDGE EGAN

Date of judgment:

10 September 2025

Catchwords:

MIGRATION LAW – Whether the reasons of the Authority lacked an intelligible basis or failed to disclose a reasoning process which led to its decision – no jurisdictional error established – application dismissed.

Cases cited:

Bernard v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 2187

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Tran v Minister for Immigration and Border Protection [2014] FCA 533

SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210

Division:

Division 2 General Federal Law

Number of paragraphs:

27

Date of hearing:

22 August 2025

Place:

Brisbane

Counsel for the Applicant:

Mr M. Jones of King’s Counsel

Solicitor for the Applicant:

Ms A. Ketheeswaran, DWF (Australia)

Counsel for the First Respondent:

Mr M. Maynard of Counsel

Solicitor for the First Respondent:

Ms C. White, Sparke Helmore

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

BRG 576 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HGQ24

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	10 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The name of the Second Respondent be amended to ‘Administrative Review Tribunal’.

3.The Amended Application for Review filed on 2 May 2025 be dismissed.

4.The Applicants pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $8,300.

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 EGAN

1. The applicant was a citizen of Iran who arrived in Australia as an unauthorized maritime arrival on 20 March 2013.

2. On 10 May 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV). The visa application was successful, on the expiry date for the visa being 27 October 2021.

3. On 6 September 2021, the applicant applied for a second SHEV.

4. On 21 March 2022, a delegate of the Minister refused to grant the visa on the basis that the delegate was not satisfied that the applicant faced a real chance of persecution, or a real risk of suffering significant harm, should he be returned to Iran. The decision was referred to the then Immigration Assessment Authority (the Authority) for review.

5. On 4 May 2022, the Authority affirmed the decision of the delegate.

6. On 13 September 2024, the applicant filed an Originating Application for Review of the decision of the Authority. That application sought an extension of time because the application for review was filed 2 years and 4 months (828 days) after the handing down of the IAA’s decision.

   Application for Extension of Time

7. Both parties adopted the summary of principles for the extension of time in a matter such as the present as set out in the Full Court judgement in BQQ15v Minister for Home Affairs [2019] FCAFC 218 at [33] per Yates, Wheelahan and O’Bryan JJ as follows:

   33. Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

   (a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

   (b)       There must be some acceptable explanation for the delay.

   (c) Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

   (d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

   (e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

   (f) The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14]; N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [12] (N1202/01A). Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195; (2005) 223 FCR 441 at [5]. Nevertheless, the merits of the appeal will remain a relevant factor: N1202/01A at [13].

8. In Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579 at [12], Kiefel CJ, Gageler, Keane and Gleeson JJ held as follows:

   12. On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

9. The delay in the present matter is extensive. In Tran v Minister for Immigration and Border Protection [2014] FCA 533, Wigney J was there dealing with a delay of some 18 months between the date of the decision under review and the date of the filing of the application for review. At [38] of His Honour’s reasons, it was held as follows:

   38. The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.

10. In Bernard v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2019] FCA 2187, the Court was there dealing with a delay of some 2.5 years. McKerracher J at [28] of the judgement held as follows:

    28. In my view, the length of the delay here is of such an extreme duration that the merits of the application for an extension of time would have to be particularly obvious to overcome the delay. Were a mere ‘arguable case’ sufficient to outweigh a significant and extensive delay, then limitation periods would be deprived of any meaningful effect. It was noted by McHugh J in Brisbane South where the period selected by Parliament as the appropriate limitation period is exceeded, that limitation period ‘may often result in a good cause of action being defeated’ (at 553).

11. In the present matter the applicant’s reasons for the delay included his having made a number of applications for bridging visas and ministerial intervention; difficulties associated with his imprisonment; his alleged poor mental health; and a lack of legal advice on his ability to seek a review. None of the reasons advanced for the delay was persuasive.

12. First, it has been held that the absence of legal advice, or a person’s ignorance of their right to seek review of an administrative decision, are not excuses justifying a failure to seek review within time. [1]

    [1]           Tran at [35]

13. Second, at the time of the handing down of the Authority’s decision, the applicant was provided with an information sheet which detailed the steps open to him to seek review of the decision. The fact that the applicant tore that information sheet up whilst he was in prison militates against his being excused for not bringing an application for review within time. He must have appreciated that it was an important document, but even on his account he ought not to be rewarded for putting himself in a position of not being able to seek review.

14. Third, the applicant made a conscious decision to pursue ministerial intervention rather than pursuing review. In Tran at [36], Wigney J, when considering the same point, held as follows:

    36. Nor does the fact that Mr Tran chose, albeit on advice, to pursue other avenues available to him under the Act provide a satisfactory explanation for the delay: Vu v Minister for Immigration and Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [29]; Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279; Manna at [16]. Mr Tran made a conscious decision not to pursue a challenge to the Tribunal’s decision, albeit apparently based on advice he received concerning other avenues supposedly open to him. He ought not now be permitted to effectively resile from that decision.

15. Fourth, the applicant stated that his mental health issues caused the delay, but by reference to [9] of his affidavit, it was common ground that the time for the filing of an application for review had already expired prior to the onset of the applicant’s alleged mental condition. It was conceded by Senior Counsel for the applicant that there was no independent medical evidence which supported the proposition that any mental condition suffered by the applicant had caused the applicant to not make application for review within time.

16. The Court finds that there has been no adequate explanation provided for the late filing of the application for review. The delay was both excessive and extreme. As held by McHugh J, good causes of action can be lost by reason of the effluxion of time. No strong or exceptional case has been established. The application for extension of time is accordingly refused.

    Merits of Grounds of Review

17. At the time of the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 2 May 2025, the grounds of which were as follows:

    1.The Second Respondent’s (“IAA’s”) decision was legally unreasonable in that the IAA’s decision lacks an intelligible basis, for it fails to disclose a reasoning process that led to its ultimate conclusion. 

    2.The  IAA failed to provide procedural fairness to the Applicant by failing to give proper, genuine and real consideration to the Applicant’s claims for persecution.

18. It was submitted on behalf of the applicant that the reasons of the Authority do not disclose an evident and intelligible justification for the decision. The Court does not accept such submission.

19. At [16] – [18] of its reasons, the Authority dealt with the applicant’s claims concerning his and his friend’s arrest in about August 2012 for having installed a satellite dish at a private home, as well as their detention and alleged beating overnight. The Authority also dealt with the alleged arrest of the applicant’s friend in February 2013 and the alleged contact between the basij and the applicant’s mother due again to satellite installation. It cannot be said that the Authority was not alive to the claims that the applicant was making.

20. At [36] – [39] inclusive of its reasons, the Authority carefully considered the applicant's claims concerning satellite installation and made findings which were open to it. Its reasons were as follows:

    36. I accept that the applicant worked as an installer of satellite dishes in Iran. He stated at the first SHEV interview that this was not his sole source of income, as he also worked as a driver. I am not satisfied that if the applicant were unable to continue this employment on return, he would be unable to earn an income.

    37. I accept that the applicant was, on one occasion, arrested and fined when he was caught installing a satellite dish. Although the details of what happened have been presented slightly differently at different times, his claims are consistent with country information which indicates that the use of satellite dishes is banned, and the penalty for installing dishes is a fine and confiscation of the equipment. I accept that he was fined after being arrested in 2012, and I am satisfied that was the end of the matter.

    38. Even accepting the applicant’s claims about the second occasion, when he claims his friend and co-worker was arrested while purchasing satellite equipment while he managed to escape, I am not satisfied that there is a real chance that he would face serious harm as a consequence. First, it is entirely supposition that just because the applicant may have been known to have worked with his friend before, he would be suspected to have been doing so again, when he claims that he fled without being seen by the basij, and he does not claim to have been pursued at the time. Secondly, the country information indicates that the penalty for installing or possessing satellite dishes is a fine; there is nothing before me to suggest that harsher penalties apply for subsequent offences. Moreover, the country information indicates that satellite dishes are widely utilised, with some estimates that more than 90 percent of Iranians use them to view foreign television. It is reported that while the authorities conduct raids and order dishes to be removed, they are often re-installed immediately and continue to be commonly used. Against this background, sources suggest that the authorities have given up the fight to prevent Iranians from accessing foreign news and media via satellite, and that satellite dishes are largely tolerated. There is no suggestion that people who install satellite dishes for a living are viewed as dissidents, and even though the applicant has claimed that he did this work because he considered that freedom of information is important, there is no suggestion that this view was known to the authorities or would be imputed to the applicant; and indeed, he has also stated that he did the work because it paid well. I consider the possibility that the authorities would have been interested in pursuing the applicant as a possible accomplice of his arrested friend, even at the time, to be remote and speculative; and I consider the possibility that he would remain of interest now, ten years later, when his friend was arrested while purchasing equipment and the applicant was not seen to be present at the time, to be even more remote. In any case, as noted above, the country information indicates that if the applicant were to face any penalty because he was known to have possessed or installed satellite dishes, this would be a fine and I am not satisfied that imposition of a fine constitutes serious harm for the purposes of the refugee criterion.

    39. In these circumstances, even accepting that the basij raided the applicant’s home after his departure from Iran, on the scant information provided I am not satisfied that this was connected with the arrest of his friend, noting that the friend was arrested on the second occasion while purchasing equipment and the applicant was not known to be present. Based on the available information, I am not satisfied that the applicant faced outstanding charges or sanctions at the time of his departure, or that he was of any adverse interest to the authorities, and this is further indicated by the fact that he was able to leave Iran without difficulty, using his own passport. I am not satisfied that the applicant would be of adverse, or any, interest to the authorities on return to Iran even if he were known to have worked ten years ago installing satellite dishes.

21. At [43] of its reasons, the Authority addressed the question of the applicant’s profile on the question as to whether he was a person who would be likely to come to the adverse attention of the authorities. Its reasons were as follows:

    43. The first delegate found that the applicant was at risk of harm in the context of the routine processing at the airport on return, on the basis of a 2010 report stating that passengers entering the country who are flagged against one of two watchlists are either arrested on the spot, or allowed to pass through and surveilled while in the country, or have their passports confiscated and enter Iran on the condition they attend interrogation sessions. I give more weight to the assessment in the DFAT report, which is much more recent; the report considered by the first delegate is ten years older than the DFAT report, and is specifically about the ability of political dissidents to enter and leave Iran by air. I am not satisfied that the applicant is a political dissident, or that he would be viewed as one. It may be that the authorities at the airport would be aware that the applicant had been fined for installing a satellite dish in 2012, however as explained above, I am satisfied that the fine had been paid and the matter was concluded. I am not satisfied that the applicant was of ongoing interest to the authorities following the arrest of his friend in February 2013; even accepting that the basij went to his home and questioned his mother about him after his departure, on the scanty information available and given that there is no indication of any further or ongoing interest in him, I am not satisfied that this means that the applicant would have some sort of record or profile that would come to the attention of officials on his return. While it is possible that the applicant’s history might prolong the period of routine questioning he may face on return, I am not satisfied on the available information that the 2012 offence would result in the applicant being subjected to particular scrutiny, or to a real chance of harm at the airport. Even if the 2010 report is still current, and if the applicant’s prior conviction did show up on a watchlist, I consider it highly implausible that any of the three consequences mentioned in the report – instant arrest, release with ongoing surveillance or confiscation of passport and ongoing interrogation – would flow from what the country information suggests is viewed as essentially a minor offence. I am satisfied that there is nothing additional in the applicant’s background that would cause the authorities to be suspicious of him. As noted above, there is no suggestion that the applicant’s interactions with the basij or religious authorities in relation to his dress or appearance resulted in any sort of criminal record, or the acquisition of an adverse profile that would be known to and might influence the authorities’ treatment of him on return to Iran. I am not satisfied that the applicant’s religious views would be known, or that he would make them known. As noted above, I am not satisfied that the authorities would have any reason to investigate the applicant’s online profile on his return, but even if they did, I do not consider that what would be revealed about his participation in boxing in Australia would be problematic: it is clear, including from the applicant’s own evidence, that the authorities have no objection to boxing per se.

1. Further, the findings of the Authority at [51] of its reasons were again open based upon the evidence before the Authority. The Authority was entitled to weigh up all of the evidence and make appropriate findings about Australia not owing protection obligations to the applicant.

2. The Court finds that the substantive claims made by the applicant are unmeritorious. The applicant has failed to establish extreme illogicality on the part of the Authority, [2] or that the decision of the Authority was clearly unjust, arbitrary, capricious or unreasonable. [3]

   [2]           SZUXN v Minister for Immigration and Border Protection (2016) 69 AAR 210 at [52] – [56] and [61]

   per Wigney J.

   [3]           Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135] per

   Crennan and Bell JJ.

3. The applicant has failed to establish jurisdictional error on the part of the Authority.

4. Ground 2 was not pressed at the hearing before the Court. In any event, nothing in the reasons of the Tribunal suggests that the applicant was denied procedural fairness.

5. The grounds of review are without merit and are dismissed.

6. The Court will hear the parties as to costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       10 September 2025