JUN24 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1300
•14 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
JUN24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1300
File number(s): PEG 435 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 14 August 2025 Catchwords: MIGRATION – decision of the Administrative Appeals Tribunal – Protection (Subclass 866) visa – where the Tribunal refused to adjourn the hearing – where the Tribunal refused to exercise its discretion to postpone its decision making – concerns over the authenticity of documents provided from Iran – grounds of judicial review have no merit – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J(1), 5H(1), 36(2)(a), 424, 424A(3), 427 Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 31 July 2025 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr Mayne, Sparke Helmore Lawyers Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 435 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JUN24
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
14 AUGUST 2025
THE COURT ORDERS THAT:
1.The Application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
This is an Application for judicial review of a decision of the Administrative Appeals Tribunal (as it was then) (the Tribunal), dated 3 October 2024, affirming a decision of a delegate of the first respondent (the delegate), refusing to grant the applicant a Protection (Subclass 866) visa (the visa).
The matter was initially listed for hearing on 23 July 2025, before me in the Perth Registry of this Court. At the commencement of the hearing, the applicant provided the Court with written submissions, which he asked the Court into take account.
This was in circumstances where the Court had previously ordered that any amended application and any written submissions the applicant wished to rely on were to be filed 14 days prior to the listed hearing date.
The first respondent’s legal representative was unable to address the matters raised in the applicant’s written submissions. Accordingly, the matter was adjourned to 31 July 2025 for a further hearing, and orders were made for the applicant to file formal written submissions, and for the first respondent to file any response.
For the reasons set out below, the Application must be dismissed.
BACKGROUND
The applicant is a citizen of Iran. The applicant arrived in Australia on 11 July 2015 as the holder of a graduate visa.
On 12 January 2017, the applicant applied for a protection visa. The applicant claimed that he had renounced Islam, was an atheist, that he was harassed and oppressed for his beliefs, and that the authorities in Iran would prosecute and sentence him to death as he had announced his beliefs to his relatives and on social media.
On 23 April 2019, the delegate refused to grant the applicant the visa. The applicant applied to the Tribunal for review of the delegate’s decision.
On 12 June 2024, the Tribunal invited the applicant to attend a hearing scheduled for 4 July 2024, which was rescheduled to 25 July 2024 at the request of his representative.
On 28 June 2024, the applicant requested that the hearing be postponed as he no longer had representation and wanted to hire a new lawyer. On the same day, the Tribunal refused this request as the applicant did not provide evidence demonstrating any attempt to obtain a new lawyer and why they would not be available at the hearing. The Tribunal considered there had been adequate time to address the applicant’s concerns.
On 25 July 2024, the applicant attended the scheduled hearing and again requested an adjournment, which was refused.
On 29 August 2024, the Tribunal advised that it would delay making a decision for a further 14 days to allow the applicant to file further material.
On 12 September 2024, the applicant provided a translated power of attorney document from the Iranian Embassy in Canberra, dated 5 August (Embassy document). The Embassy document served as a certificate to authenticate the applicant’s signature based on his birth certificate and witness statements of his brother and sister.
On 1 October 2024, the applicant indicated he would provide more material from his uncle and lawyer in Iran.
On 3 October 2024, the Tribunal affirmed the delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal decision record spans some 34 pages plus some attachments. It contains 216 paragraphs. It is a lengthy and detailed outline of the applicant’s case and discussion of his claims, and sets out fully the reasons why the Tribunal rejected the applicant’s claims. The decision record is additionally comprehensively footnoted.
The decision record notes that the delegate accepted the applicant’s claims that he was an atheist, but by reference to country information, concluded that the applicant did not face a real chance of harm or real risk of harm on that basis [2].
The Tribunal also noted that it had refused an application for an adjournment made on the hearing date of 25 July 2024 [3].
The Tribunal noted at [13], that it had listened to the Departmental interview of the applicant.
The Tribunal noted the circumstances surrounding the applicant’s adjournment sought at the hearing on 25 July 2024. In considering the adjournment request, it had regard to the applicant’s listed representative’s adjournment request made on 20 June 2024 [37] – [39], and the 12 –15 week period that would most likely be required for any adjournment [40]. The Tribunal found that the period of the delay would be considerable, that the applicant had not satisfied the Tribunal that he would be genuine in his attempts to obtain representation, and was not satisfied that if an adjournment were to be granted, the applicant would be represented, or he would take steps to obtain such representation [47]. The Tribunal refused the request for an adjournment at [51], after balancing the factors it must have regard to, as detailed at [48].
In regard to the post-hearing request to defer the Tribunal’s determination of the review application, the Tribunal considered various documents provided by the applicant. The power of attorney document, which the applicant claims granted his uncle a power of attorney, was difficult for the Tribunal to reconcile for various reasons at [57] – [63]. The Tribunal was not prepared to defer the making of the decision on the basis of the power of attorney document, as it did not accept that the power of attorney was valid, that it had been provided to his uncle, or that the uncle used the power of attorney to engage lawyers, obtain documents or access systems in Iran on account of the applicant [63].
The applicant also provided translated written statements purportedly from his sister and brother, translated by a translator with TranslateSwift LLC, for which no evidence was provided to prove that they were NAATI certified [64]. The Tribunal was not satisfied as to the identity of the authors of the witness statements [70], and as such it was not prepared to attach any weight to the statements purportedly authored by the applicant’s siblings [72]. The Tribunal also considered the screenshots and other documents provided on 12 September 2024. At [77], the Tribunal had difficulty accepting the applicant was genuinely engaged in seeking to access the systems (‘SENA’, the Civil Registration System, Iranian Court System [77]), which he would give the Tribunal access to or access live during a hearing to prove the credibility of his claims. At [78], in view of the conclusions and observations it had reached, the Tribunal determined to proceed with the review application and turned to a consideration of the applicant’s claims based on the material before it.
The Tribunal considered the applicant’s claim made at the hearing that his brother was a member of the Basij. The Tribunal questioned why the applicant had not made the claim prior to the Tribunal hearing and was satisfied the applicant had no reasonable explanation as to why he had not raised the claim earlier, and in turn made an inference unfavourable to the credibility of the claim [104]. The Tribunal also considered it implausible that the applicant would have omitted or overlooked his brother’s claim [105].
The Tribunal had regard to the applicant’s explanation for his delay in applying for the visa. The applicant attributed the delay to a lack of knowledge about the asylum process and the belief that he needed to wait until his current visa was about to expire before applying [118]. The Tribunal did not accept this evidence on the basis that the applicant was a ‘highly educated individual’ and rejected that he was incapable of researching the visa options available to him [120].
At [127] – [156], the Tribunal considered whether the apostasy and conviction claims were credible. The Tribunal had regard to the applicant’s indictment document provided the night before the hearing. The Tribunal noted issues that arose on the face of the documents alone, but did not reject the applicant’s claim on that basis [127]. The Tribunal noted other issues that caused it to doubt the fact of the convictions and, by extension, the authenticity of the documents. The Tribunal was concerned about: the ability of the applicant to obtain other translations of documents from the Department of Justice shortly after his convictions, the applicant being able to renew his passport in 2019 despite being of interest to the authorities, the delay in the provision of the indictment document, and the applicant’s inconsistent evidence at hearing about how he obtained the document,
The applicant indicated that the Tribunal would arrange to verify the authenticity of the documents he had provided. At [154], the Tribunal determined it would not exercise its discretion to direct the Secretary to investigate the document.
At [158], The Tribunal concluded that the indictment document was not credible or authentic, the applicant’s claims that he had been convicted of offences in Iran were not credible and it did not accept the applicant’s brother had reported the applicant to any person or authority in Iran, or provided a letter stating that the applicant is an atheist. The Tribunal was not satisfied that the applicant had been charged with or may be charged with an offence in relation to blasphemy and apostasy.
The Tribunal weighed various factors from [159] – [186] regarding the applicant’s religious beliefs and whether or not, on account of them, he is at risk of facing harm in Iran. At [187] – [194], the Tribunal made similar findings about the applicant’s claim of a real chance of harm in Iran on account of his actual or imputed anti-government views, and from [195]-[200] about facing harm based on his involuntary return to Iran. For completeness, despite the applicant not expressly claiming it, the Tribunal at [201] – [206] considered whether the applicant would fear harm on the basis of being a returnee from the West or a failed asylum seeker.
On all of these accounts, the Tribunal was not satisfied that the applicant would face a real chance of harm.
At [208], the Tribunal concluded that the applicant did not have a well-founded fear of persecution within the meaning of s 5J(1) of the Migration Act 1958 (Cth) (the Act).
Further, the applicant was not a refugee within the meaning of s 5H(1) and did not satisfy the criterion in s 36(2)(a) [209].
The Tribunal found the applicant was not a person in respect of whom Australia owed protection obligations pursuant to s 36(2)(aa) [213].
The Tribunal affirmed the decision not to grant the applicant a protection visa at [216].
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained in an Originating Application filed on 6 November 2024. They are as follows (errors in original):
1.The Tribunal denied the applicant procedural fairness: Tribunal failed to consider the bureaucratic difficulties of gaining access to court documents from Iran, which only recently had came to light, despite all my efforts to keep the tribunal updated about the issue of gaining access to relevant documents. The tribunal by making incorrect assumptions about the procedures of different organisations in Iran, came to the wrong conclusions and failed to allow the presentation of relevant material.
2.The tribunal failed to consider (or ignored) relevant material: the tribunal has partially or completely ignored this material without proper cause: Iranian verdict against myself, Power of attorney document, Plane ticket to Canberra and back to Perth
3.The decision is illogical, irrational or unreasonable: there are aspects of the decision who is irrational, for example the fact that both in the interview and paragraphs 150-156 the member refused to consider employ of an Iranian lawyer either by myself or the tribunal to gain access to documents but in paragraph 77 it is used against me that I did not request the Iranian lawyer to gain access to court documents. Furthermore, throughout the decision, member has made unfounded assumptions about the procedures of Iranian embassy and other Iranian organisations and based on those assumptions arrived at conclusions to deem relevant material invalid.
THE APPLICANT’S SUBMISSIONS
The applicant’s written submissions consist of 10 paragraphs, each dealing with a separate complaint. Each paragraph needs to be interpreted as to what precise jurisdictional error is alleged, if any at all.
Further, a large number of documents were attached to the written submissions. The respondent objects to annexures 2, 5 and 7 on the basis that they were not before the Tribunal and cannot be considered by the Court. The Court agrees with that submission and explained to the applicant why it could not consider the aforementioned identified documents provided by the applicant.
Annexures 10 – 25 consist of various screenshots of documents in Arabic that include news reports of Kurdish men being executed in Iran for collaboration with Israel, the death sentence being imposed on a Christian Pastor for the crime of apostasy and the persecution of Bhai followers in Iran. These documents were objected to on the basis of relevance and were ignored by the Court.
Annexure 1 consists of an email chain between the applicant and his former solicitor, including a notification to the applicant dated 12 June 2024, informing him that his hearing was listed on 4 July 2024 and that the solicitor would not be representing the applicant.
Annexure 3 is a request to the Tribunal for an adjournment of the applicant’s hearing. Annexure 4 is an email from the applicant dated 1 August 2024 to the Tribunal seeking a delay in the handing down of any decision to allow the applicant more time to gather documents in support of his application.
Annexure 6 is a further email to the Tribunal, from the applicant, updating the Tribunal on the applicant’s efforts to obtain court documents from Iran
Attachment 8 is a copy of the applicant’s passport. Attachment 9 is an untranslated document in Arabic.
Paragraph 1 of the applicant’s written submissions is a complaint that the Tribunal failed to consider relevant material as legitimate documents, due to a failure to consider that the documents originated in Iran and therefore would be of a lesser quality than those issued in Australia.
Paragraph 2 of the written submissions complains that the Tribunal wrongly assumed the standards of bureaucratic processes in Australia are applicable to other countries, and as a result, the Tribunal made false inferences as to whether documents were bogus or irrelevant. The applicant takes issue with the Tribunal rejecting a translated power of attorney on the basis that there was no evidence of the applicant travelling to Canberra. The Tribunal found at [62], that the Iranian Embassy could not certify the applicant’s signature without first identifying the applicant and witnessing his signature on the document. The Court notes this was a significant reason for the Tribunal not deferring the making of its decision [63].
Paragraph 3 is a jumble of claims of jurisdictional error. These include an allegation of bias, failing to investigate the applicant’s claims and a failure to properly consider issues relating to the applicant’s difficulties in obtaining court documents from Iran, which were out of his control.
Paragraph 4 is essentially a complaint that the Tribunal acted unreasonably in not adjourning the Tribunal hearing after the applicant became unrepresented. It also included a timeline. There is also a complaint as to the actions of the applicant’s previous representative.
Paragraph 5 complains that the Tribunal’s findings at [77] and [151] contradict each other.
Paragraph 6 complains that the Tribunal unreasonably found the Iranian government would have refused to reissue the applicant’s passport if he had a judgment outstanding against him.
Paragraph 7 takes issue with the findings of the Tribunal in relation to the applicant’s claims that his brother was a member of the Basij.
Paragraph 8 complains the Tribunal made an error in finding the applicant was in possession of statements from his brother and sister for one month before having them translated. This is incorrect and relates to the day/date format. The format used in the translation is the format used in the United States, where the month is used first and then the day, as compared to the standard in Australia, being day, then month. The Tribunal also noted there was no statement from the applicant’s uncle. The applicant states that he would have provided one if he were aware such a statement would be of interest.
Paragraph 9 complains that the Tribunal drew an adverse inference from the applicant’s in applying for a protection visa. As a highly educated person, the Tribunal found that the applicant should have known he could have applied for a protection visa while on a student visa.
Paragraph 10 takes issue with the finding that the document the applicant presented, which he claimed was from the Iranian Department of Justice, should have had a consistent appearance. This was not a reasonable finding, as it was based on what would be expected in Australia rather than the country of origin, Iran.
THE FIRST RESPONDENT’S SUBMISSIONS
Grounds one and three of the Originating Application, collectively allege that the Tribunal denied the applicant procedural fairness on account of failing to allow him to provide further material about his court case in Iran, the Tribunal’s unreasonableness in not exercising its powers under ss 424 and 427 of the Act, and the assumptions the Tribunal made about Iranian procedures which were irrational and unfounded. The first respondent submitted the following:
(a)The Tribunal complied with its exhaustive procedural fairness obligations in Division 4 of Part 7 of the Act by inviting the applicant to attend a hearing, which he did on 25 July 2025.
(b)The Tribunal was not required to put information to the applicant for comment pursuant to s 424A. The information the Tribunal relied on in affirming the delegate’s decisions was that which the applicant had provided to the Department, his documentary and oral evidence on review, and the country information before it, all of which was exempt under s 424A(3)(b), (ba) and (a).
(c)The Tribunal’s reasons to postpone the hearing at first instance was supported by a logical and sound basis. As to the second postponement request made by the applicant, the Tribunal dealt with it at [21] – [51] of the decision record, noting that it had had regard to the applicant’s evidence. On 29 August 2024, the Tribunal allowed the applicant a further 14 days to provide further information. The Tribunal did not make its decision until some 10 weeks after the hearing, on 3 October 2024. The first respondent argues that the applicant was provided a real and meaningful opportunity to present his case to the Tribunal.
(d)In relation to the Tribunal’s non-exercise of discretionary powers under ss 424 and 427, authorities have established that a Tribunal’s power is subject to the condition that it be exercised reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [24], [26], [29], [63], [88]; Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541 at [4], [80]. The Tribunal was not required to make the applicant’s case for him, and it remained the applicant’s responsibility to provide evidence to demonstrate that he satisfied the visa requirements.
(e)The applicant did not provide evidence to alleviate the Tribunal’s concerns, despite the Tribunal not making its decision until around 10 weeks after the hearing. With regard to this and the Tribunal’s compliance with its procedural fairness obligations as a whole, it was not legally unreasonable for the Tribunal not to have exercised its discretionary powers.
(f)The Tribunal did not make “unfounded assumptions” as alleged by the applicant, rather it made observations and findings based on the documentary evidence provided by the applicant, which in and of itself contained discrepancies, inconsistencies and a lack of detail. The Tribunal’s reasons at [77] – [78] demonstrate its concerns about the vagueness and ambiguity around how the applicant’s lawyer or his uncle in Iran were assisting him, how he was working to obtain further information, how much more time was needed to obtain this information and whether it would result in evidence that supported his case. Additionally, based on its decision that the indictment document was not credible or authentic, the Tribunal affirmed the decision under review, a decision which was plainly justified and supported by a logical basis.
In relation to ground two, the Tribunal’s reasons at [57] – [63] and [121] – [137] plainly show that the Tribunal considered the applicant’s indictment document, the embassy document and his plane tickets. The Tribunal’s reasons reveal an active and intellectual consideration and engagement with the documents. It was not clear how the flight tickets, given the discrepancy noted by the Tribunal at [62], would have assisted the applicant’s case. There is no jurisdictional error revealed by the lack of reference to the flight tickets later in its reasons; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47].
In relation to the contention in paragraph 1 of the applicant’s written submissions, it was submitted that the Tribunal did not make unfounded assumptions, rather, it made observations and findings based on the documentary evidence provided by the applicant, which contained numerous discrepancies, inconsistencies, or a lack of detail for documents that were supposedly obtained from Iranian authorities.
Further, it was not the Tribunal’s responsibility to make the applicant’s case for him and come to a conclusion as to why the purported documents from Iranian authorities had the deficiencies they did. Nor was it required to engage in a comparative analysis of the jurisdictions in Iran and Australia. It was the applicant’s responsibility to provide sufficient evidence to satisfy the Tribunal that he met the requirements for the visa.
In relation to paragraph 2, the Tribunal did not reject the validity of the power of attorney document solely on the basis that the applicant was not in Canberra as at the date it was issued. The Tribunal’s reasons demonstrated it had several difficulties with the document, which included the translated document not being signed by the applicant, and that it was certified based on his birth certificate number, which he claimed was rejected by the embassy when it tried to obtain a new national ID card.
In relation to paragraph 3, the Tribunal’s reasons at [52] – [78] provide a detailed and comprehensive assessment of the applicant’s circumstances and his request for the Tribunal to defer making its decision. Any disagreement the applicant expresses does not establish any jurisdictional error. This is especially the case where the Tribunal complied with its exhaustive procedural fairness obligations under Division 4 of Part 7 of the Act.
In relation to paragraph 5, it is submitted the Tribunal’s reasons at [77] and [151] do not contradict each other. At [77], the Tribunal did not accept that the applicant was genuinely seeking access to the court systems in Iran, and observed it was unclear why the lawyer he claimed to have engaged for services in Tehran would be unable to correctly obtain records about the applicant’s conviction if it was a genuine document. At [151], the Tribunal had regard to country information about the relative ease with which fraudulent documents could be obtained, and that the provision of further documents, even if official, would not necessarily resolve these concerns. The reasons at [151] are a recitation of relevant country information.
In relation to paragraph 6, the Tribunal’s difficulty in accepting at [76], that the applicant was able to renew his Iranian passport if there was a verdict against him, does not establish any jurisdictional error. Further, the verdict itself, which was reportedly issued on 11 January 2016, prohibited the applicant from “leaving the country for five years”. The Tribunal identified this, and the difficulties it expressed at [76], are unsurprising.
In relation to paragraph 7, the applicant never claimed that his brother was part of the ‘Student Basij’. Nor does any unarticulated claim arise squarely on the material, particularly from his claim that his brother was “deeply religious”. Accordingly, the Tribunal correctly applied s 423A of the Act in relation to the applicant’s new claim at the hearing and where it was not satisfied he had a reasonable explanation for not raising this claim earlier.
In relation to paragraph 8, the Minister again emphasises that it was the applicant’s responsibility to advance his own case, especially in relation to the evidence he should have provided from his uncle, and the Tribunal was not required to notify him that it wanted evidence from his uncle.
Further, it is unsurprising that issues arose in relation to the witness statements of his brother and sister, where the document was not translated using a properly qualified translator. In any event, notwithstanding the difficulties in relation to the dates, the Tribunal also noted it had concerns with the statements, including that it was not satisfied as to the authors, that it found the statements to be vague. unsupported by evidence and inconsistent, and the fact that they did not support the claim that the applicant’s brother was a member of the Basij. Thus, any factual error relied upon by the Tribunal as to the dates could not have realistically changed the fact that it was not prepared to attach any weight to these, given the numerous other concerns it had [69]– [72].
In relation to paragraph 9, the first respondent submitted there was no error in the Tribunal considering the applicant to be “highly educated” and rejecting that he was incapable of researching the existence of a protection visa in Australia. Further, the explanation the applicant advances for the delay in applying for protection, being that he wanted to apply for permanent residency through the skilled occupational list, was accepted by the Tribunal at [89] – [90]. It is unclear how this explanation could have assisted the applicant in overcoming the hurdle of satisfying the Tribunal that he is owed protection, when applying for protection was not at the forefront of his mind when arriving in Australia in July 2015.
Paragraph 10 is a variation on the applicant’s claim that the Tribunal did not consider Iran’s standard procedures or lack thereof, and instead used a measure of standard procedures in Australia. The applicant relies on his submissions in relation to paragraph 1 in this regard.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
It is well settled that country information and the weight given to that information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187].
It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration and Citizenship v Lat (2006) 151 FCR 214 at [76]. The Tribunal is under no obligation to “afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) at [82].
There is no general obligation on a Tribunal to investigate an applicant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment.
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it: (Li) at [28]; or where a decision has been made that lacks an “evident and intelligible justification”: Li at [76]. The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: Li at [30], [113].
As the applicant is unrepresented, the Court needs to consider the whole of the Tribunal decision record and consider whether there is any unarticulated jurisdictional error. It is also easier to deal with the applicant’s various contentions thematically, rather than by reference to first, his articulated grounds of judicial review as set out in the initiating application and then his written submissions by paragraph number.
The Decision Not to Adjourn the Tribunal Hearing:
A significant matter in these proceedings relates to the Tribunal’s refusal to adjourn the hearing at the commencement of the hearing, on the basis that the applicant was unrepresented.
The principles relevant to an application for an adjournment to obtain legal representation were recently summarised by Jackson J in WZAVK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 114(WZAVK) at [2]:
1.Lack of legal representation is not, of itself, a reason to adjourn the hearing of a long-scheduled application or appeal: Timu v Minister for Immigration and Border Protection [2018] FCAFC 161 at [19].
2.Other than in the case of persons appearing before a court for a serious criminal offence, there is no absolute “right” to legal representation in this country, in the sense that a judge is required to adjourn the proceeding if the party has no lawyer: EPH17 v Minister for Immigration and Border Protection [2019] FCA 824 at [18]; Jarrett v Westpac Banking Corporation [1999] FCA 425 at [6]; and Pallas v Minister for Home Affairs [2019] FCAFC 149 at [42(a)].
3.Nevertheless, the fact that a party wishes to obtain legal representation is a relevant factor in considering the question of whether an adjournment should be granted: BSY16 v Minister for Home Affairs [2019] FCA 140 at [5].
4.Matters that will be relevant in determining the weight to be given to that wish may include:
a. the amount of time the party has had to obtain legal representation;
b. the steps the party has taken to obtain such representation during that time;
c. the explanation for any delay in that respect;
d. the utility of any adjournment, including the likelihood of the appellant obtaining legal representation; and
e. the time required for the appellant to do so, see BSY16 at [5]; and Pallas at e. [42].
5.In the end, the decision whether to adjourn is a discretionary decision for the court hearing the matter, which must be exercised judicially and will depend on the individual circumstances that are relevant: EPH17 at [18]-[19]; Jarrett at [78].
The request for an adjournment was considered by the Tribunal at [21] – [51]. This included setting out the full quote above from WZAVK.
The Tribunal set out comprehensively the history of the matter, including the fact that the application before the Tribunal had been on foot for some five years prior to a hearing date being set. The Tribunal noted that the period of any adjournment, given the evidence of the applicant as to his finances and the likely cost of legal representation, would be most likely be more than 16 weeks
At [47], the Tribunal was not satisfied that the applicant’s behaviour in trying to obtain legal representation was genuine and that even if an adjournment were granted, the applicant would be represented at any subsequent hearing.
At [48] – [51], the Tribunal carried out a balancing exercise, but was not persuaded that it was appropriate for an adjournment to be granted.
The granting of an adjournment is a discretionary exercise that must be carried out judicially. That is, the exercise of the discretion cannot be legally unreasonable, irrational or illogical. I am satisfied the Tribunal carefully considered the factors set out in WZAVK. I am satisfied that the ultimate decision not to adjourn the hearing was within the legitimate decisional freedom of the Tribunal and is not infected with any legal unreasonableness, illogicality or irrationality, noting the stringent test for a Court to find legal unreasonableness. Paragraph four has no merit.
The Decision not to further delay the Tribunal making a decision:
The next issue relates to the applicant’s post-hearing request to defer making a decision. This is dealt with at [52] – [78] of the decision record. The Court notes that the Tribunal delayed making a decision for a period of 10 weeks to allow the applicant more time to provide evidence. The Tribunal set out carefully the chain of events that occurred following the Tribunal hearing, and in particular, the attempts by the applicant to obtain documentation that would indicate there was a verdict against him, which resulted in a prison sentence being imposed on him in Iran.
The Tribunal was again, exercising a discretion. That discretion needed to be exercised judicially. The fact that a different decision-maker, using a differing reasoning process, may have arrived at a different outcome is insufficient for this Court to find a jurisdictional error based on unreasonableness.
Accordingly, it is necessary to look at the matters considered by the Tribunal in coming to the conclusion that it should not further delay its decision. The applicant sought to delay a decision until such time as he was able to provide further documentation which might support his claim that there was a verdict against him as a result of a court case in Iran. The applicant outlined numerous administrative difficulties that he encountered, which the Tribunal fully considered, but cumulatively had difficulties accepting the explanation for the applicant’s incapacity to provide the documentation he indicated would be available.
These difficulties included the necessity to travel to Canberra to visit the Iranian Embassy to obtain a national identification card in circumstances where the applicant had previously renewed his Iranian passport through the Embassy without difficulty.
The Tribunal also considered the various explanations given as to why, once relevant documentation as to the applicant’s identity was provided, a lawyer in Iran was unable to act because of “the need to get the contract confirmed”, which would enable the lawyer to proceed on the applicant’s behalf to obtain documentation.
The Tribunal had difficulties with the power of attorney document, noting that it had difficulties understanding how the Iranian Embassy would have verified his signature in circumstances where he was not present.
The Tribunal noted witness statements purportedly from the applicant’s brother and sister. Whilst they were translated, they were not translated by a NAATI certified translator. Notwithstanding this, the Tribunal was prepared to accept for the purposes of considering the statements, that they were accurately translated.
The Tribunal, perhaps unsurprisingly, was concerned as to the late discovery by the applicant’s sister of a case against him in the Iranian court system. The Tribunal expressed doubts as to the authenticity of the statements, noting that the dates of the documents did not support the applicant’s claims. This was on the basis that the applicant had delayed having it translated. The applicant claims that due to a difference in the dating system used in terms of the American system of month then day, as compared to the Australian system of day then month when writing dates, the Tribunal made a mistake of fact.
Even if I accept this is the case, I am not satisfied that the error is material, given the multiple other concerns as to the authenticity of the documents, the claims made in them, and the excuses given as to why the applicant was unable to obtain the various documentation he said could be available within a reasonable time period.
Of significant importance is the fact that it was unclear to the Tribunal when the documentation that the applicant says would become available could, in fact, be provided.
The applicant makes a number of complaints regarding the reasoning process of the Tribunal, and the fact that the Tribunal had applied Australian bureaucratic standards and processes in circumstances where it was the Iranian system, with all of the claimed issues set out by the applicant, that was being engaged with. To put it simply, the applicant says this was an unfair comparison with what is a foreign bureaucratic system with all of its unknown peculiarities and difficulties.
Significant care needs to be taken by finders of fact, when comparing Australian norms in terms of the bureaucratic system and processes as to what might be the case in other jurisdictions. However, I am satisfied on a cumulative basis, the Tribunal was entitled to arrive at the conclusions it did, given the multiplicity of concerns that it had, which are set out in the Tribunal decision record.
It is and always has been the applicant’s responsibility to provide the evidence necessary to show that he was entitled to the protection visa he sought. There was no requirement for the Tribunal to indefinitely defer making a decision to allow the applicant the opportunity to put forward his best case. The issue revolved around whether or not the Tribunal should defer its decision-making further or simply proceed to determine the matter based on the evidence that was before it.
I am satisfied, noting the matter had already been delayed for a period of 10 weeks, that it was within the legitimate decisional freedom of the Tribunal, for the reasons it gave, not to adjourn the matter further. That decision does not meet the stringent requirements required for it to be legally unreasonable. The reasoning process followed by the Tribunal was logical and rational. At the end of the day, the applicant merely disagrees with the decision of the Tribunal not to further delay and proceed to deal with the matter on the basis of the evidence that was before it and before the delegate.
Paragraphs 1, 10, 2, 3, 6, 7, 8 and 10 have no merit. For the same reasons, Grounds 1 and 2 have no merit.
Other Grounds
The balance of the matters raised by the applicant can now be dealt with individually.
Paragraph 5 asserts that the Tribunal’s reasons at [77] and [151] contradict each other. I do not accept this submission. At [77], the Tribunal did not accept that the applicant was genuinely engaged in seeking access to the court system in Iran. At [151], the Tribunal noted the ease with which fraudulent documents can be obtained in Iran. The Tribunal concluded that, absent credible corroboration, any other documents that might be provided would have the same concerns. The Tribunal further noted that the applicant appeared to understand the logic of this. I do not accept that there is anything contradictory in the comments and conclusions of the Tribunal in these two paragraphs, such that they raise to the level of jurisdictional error. Paragraph 5 has no merit.
Paragraph 7 is a claim that the applicant’s brother was a member of the ‘Student Basij’. I accept the respondent’s submissions that no such claim was in fact made, nor does any unarticulated claim squarely arise on the material. The only claims that were made prior to the hearing were that the applicant’s brother was deeply religious. This should be compared to the claim made by the applicant at the hearing that his brother was ‘a hard-core part of the Basij’.
The Tribunal’s reasoning that it was entitled to draw an unfavourable inference as to the credibility of the claim has a sound basis. The now-repealed s 423A of the Act directs the Tribunal to draw an adverse credibility inference where a new claim is made that does not have a reasonable explanation as to why the claim was not raised or presented before the primary decision was made. I am satisfied that the Tribunal was entitled to draw the adverse inference that it did, no jurisdictional error accordingly arises.
Paragraph 9 is a complaint that the Tribunal found the applicant to be highly educated, and rejected that he was incapable of researching the existence of protection visa options. The Tribunal found, unsurprisingly, that the applicant arrived in Australia in July 2015 on a graduate visa, valid for 18 months. The applicant claimed that he intended to remain in Australia permanently, by obtaining work in the mining sector and then applying for a permanent skilled visa in order to remain in Australia indefinitely.
The delay in applying for a protection visa is dealt with at [117] – [120]. At both the hearing and the interview, the applicant attributed his delay in applying for a protection visa until his temporary visa options were exhausted, due to a lack of knowledge about the asylum process and the belief that he needed to wait until his current visa was about to expire before he applied. The Tribunal found that the applicant’s delay in applying for a protection visa may suggest that he applied for a protection visa because of a desire to remain in Australia, rather than out of a genuine fear of persecution in Iran.
The Tribunal’s conclusion that the applicant was clear in his evidence that he wanted to remain in Australia permanently, but was incapable of researching visa options available to him is, to my mind, a reasonable inference based on the totality of the evidence that was before the Tribunal. I do not accept that it was irrational, illogical, or otherwise legally unreasonable for the Tribunal to arrive at the conclusion that it did. Paragraph 9 has no merit.
The final matter is Ground Three. Ground Three is a complaint that it was illogical, irrational or unreasonable that the Tribunal Member refused to consider employing an Iranian lawyer either by the applicant himself or by the Tribunal, in order to gain access to the court documents.
As set out above, the duty of the Tribunal was to review, not to enquire. The onus of proof lay on the applicant to provide sufficient material in order for him to convince the Tribunal he was entitled to a protection visa. I am not satisfied that the Tribunal made any unfounded assumptions. It simply determined the matter on the basis of the material that was before it. I do not consider that there was anything unreasonable, illogical or irrational in the manner in which the Tribunal went about considering the matter.
The doubts expressed by the Tribunal in relation to the blasphemy and apostasy convictions were reasonable in all the circumstances, noting the claim of a conviction, together with a sentence of 16 years discretionary imprisonment and 74 lashes, were reasonable in circumstances where these claims had not been raised previously before the primary decision maker and were only provided by the applicant to the Tribunal the night before the hearing. The Tribunal discussed at length whether the convictions were credible at [127] to [156]. I am satisfied that the conclusions arrived at by the Tribunal were available to it based on the evidence that was before it and for the reasons it gave. The reasoning process is logical and rational. Ground three has no merit.
DETERMINATION
As none of the grounds of judicial review have any merit, the application must be dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 14 August 2025
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