AUG19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1126
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AUG19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1126
File number: MLG 532 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 23 July 2025 Catchwords: MIGRATION – protection (class XA) (subclass 866) visa – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Tribunal affirmed the delegate’s decision – whether Tribunal failed to consider the applicant’s claims – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) ss 5, 36, 36(2)(a), 36(2)(aa), 91R, 91S
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 1, pt 2, item 3
Migration Regulations 1994 (Cth) sch 2, cl 866.221(2)
Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, 250 FCR 109
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, 263 FCR 292
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280
CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97
FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 404
Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 264 CLR 123
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321
McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1
S14/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 8 May 2025 Date of hearing: 20 June 2025 Place: Melbourne Counsel for the Applicant: Ms J Sandhu Solicitors for the Applicant: Lawyers of Preston Counsel for the First Respondent: Ms J Birman Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 532 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUG19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The applicant’s application filed on 28 February 2019 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $6,000.00.
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 Gostencnik
INTRODUCTION
On 20 September 2016, a delegate of the (then) Minister for Immigration and Border Protection refused to grant the applicant a Protection (Class XA) (Subclass 866) visa and the former Administrative Appeals Tribunal (Tribunal) affirmed that decision on 29 January 2019. The applicant applied to this Court for judicial review and advanced 2 grounds for review in his application. At the hearing, the applicant abandoned his second ground and merely advanced his first ground of review by contending that the Tribunal failed to consider all of his claims.
For the reasons explained below, the application will be dismissed.
BACKGROUND
The applicant is a citizen of Pakistan who arrived in Australia on 11 July 2007 as the holder of a Student (Class TU) (Subclass 572) visa. The applicant was granted subsequent student visas and departed Australia on four separate occasions before applying for a protection visa on 4 April 2014. The applicant appointed a registered migration agent as an authorised recipient to receive and respond to written communication. Enclosed with the application included, inter alia, a written statement by the migration agent and a letter by the applicant. The applicant claimed to fear harm in Pakistan as he was threatened and attacked for his religion as a Shia Muslim and an active volunteer and member of a non-profit organisation, Khoja Pirhai Shia Ishna Asheri Jamat (KPSIAJ). The applicant claimed he would be killed because of the sectarian clash between Shia and Sunni Muslims and contended that the authorities in Pakistan could not protect anyone who is of Shia denomination.
On 22 April 2014, the (then) Department of Immigration and Border Protection advised by letter dispatched by email to the migration agent that the application had been assessed as a valid application. On 3 April 2014, the applicant lodged an application to include his wife and son to the visa application as members of the same family unit and were duly included in the application as a second and third applicant on 6 March 2015. On 26 May 2015 by letter transmitted to the migration agent, the Department invited the applicant to attend an interview scheduled on 3 June 2015 to discuss the applicant’s claim in his visa application. The migration agent submitted a pre-interview written submission which discussed the applicant’s background and protection claims. The submissions explained that the applicant’s race, religion and imputed political opinion are significant reasons for his claimed fear of persecution, in circumstances that he had experienced an attempt on his life and had been forced into hiding. The migration agent explained that as the applicant is an active member of the KPSIAJ, he is of a significantly higher profile than an ordinary Shia, and that as a young able-bodied individual of Mohajir ethnicity and Shia background, he is most likely to be perceived as a physical threat and source of resistance by extremist militants. The migration agent produced country information evidence displaying the sectarian attacks on Shia Muslims and escalation of violence in Pakistan, in support of its submission that the applicant faces a fear of persecution – for reason of ethnicity, religion, political opinion and membership of a particular social group – and will be harmed if returned to Pakistan either now or in the reasonably foreseeable future. The migration agent enclosed further documentary evidence including, a police report of an incident which occurred on 24 February 2014; and a letter from a former senator, Allama Ali Akbar Kumalli, confirming that the applicant is a volunteer at a Shia Muslim mosque and it is not safe for him to live in Pakistan as he had recently survived an attack.
The interview before the Department was rescheduled to 19 June 2015 and the applicant attended with the assistance of his migration agent and an Urdu interpreter. The migration agent submitted a post-interview written submission which produced additional country information evidencing the failure of state protection in Pakistan and the applicant’s inability to relocate within his home country. The letter largely reiterated the submissions presented in the migration agent’s pre-interview written submission. The migration agent also provided, among others, a copy of an application to the District Court of Karachi West seeking an order to compel the local authorities to lodge a First Information Report (FIR) in relation to an incident on 24 February 2014 and that protection be provided to the applicant and his family.
The second and third applicants withdrew their application for a protection visa and the Department acknowledged receipt of the withdrawal by letter dated 1 September 2016 dispatched by post. On 20 September 2016, a delegate of the Minister refused the applicant’s visa application and transmitted by post a copy of the delegate’s decision record, an interview recording and Form 1026i on the Limitations on Applications in Australia. The decision records that the delegate considered the applicant’s claims for protection; his interview before a delegate of the Minister; and submissions in support of his application. Upon the delegate’s assessment, the delegate retained significant doubts about the overall credibility of the applicant and did not accept that the claimed events occurred, nor that he is of Mohajir ethnicity and a Shia Muslim. The delegate was not satisfied that the applicant would face a real chance of persecution for a Refugees Convention reason nor did he face a real risk of significant harm. The delegate found that Australia did not have protection obligations to the applicant and therefore the applicant did not meet the criteria for the grant of a protection visa prescribed by s 36(2)(a) of the Migration Act 1958 (Cth)[1] (Act) nor sub-cl 866.221(2) of Sch 2 to the Migration Regulations 1994 (Cth)[2] (Regulations). Accordingly, the delegate refused to grant the applicant a protection visa.
[1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as it was then in force.
TRIBUNAL PROCEEDING
The applicant applied to the Tribunal on 14 October 2016 for a review of the delegate’s decision, and the Tribunal acknowledged receipt by letter transmitted by email to the applicant’s migration agent. The letter advised that the validity of the application had yet to be assessed and enclosed a copy of an ‘Information for review applicants’ factsheet. On 26 May 2017, the Tribunal invited the applicant to attend a hearing scheduled for 14 September 2017 to give evidence and present arguments relating to the issues in his case. The Tribunal advised that it was unable to make a favourable decision on the information before it alone, and invited the applicant to provide a written submission setting out the claims made and maintained. The correspondence duly enclosed a copy of an ‘Information about hearings – MR Division’ factsheet and a ‘Response to hearing invitation – MR Division’ form.
The applicant withdrew authorisation of his migration agent to receive correspondence on his behalf. The applicant provided additional documents in support of his application including:
·a letter from the chairman of the Zahra (S.A) Academy in Pakistan dated 5 November 2016 explaining that the applicant attended a Mosque in Pakistan to perform duties and he had survived an attack. The chairman informed the applicant to stay away from Pakistan as they had lost many workers and volunteers to different attacks since 2013;
·a letter from a chairperson Bazm-e-Ahlebait in Perth, Western Australia dated 29 August 2017 confirming that the applicant practises Shia Islam and has been regularly attending religious programs in Perth;
·a letter from an honorary secretary of Khoja (Pirhai) Shia Isna Asheri Jamaat in Pakistan dated 27 October 2016 explaining that the applicant is a social worker and that he had been receiving threats and attacks on his life from anti-Shia terrorist organisations in the last few years; and
·an article headed, ‘2 Police Personnel Martyred in a Target Killing in Karachi’, published in Radio Pakistan on 21 May 2017; an article headed, ‘Man shot dead in Nazimabad ‘sectarian’ attack’, published in an unknown source on 14 September 2017; and an article headed, ‘5 killed as gunmen target Shia gathering in Karachi’, published in The Nation on 29 October 2016.
The applicant attended the scheduled hearing on 14 September 2017 with the assistance of an Urdu interpreter. The hearing was adjourned to allow the applicant to obtain further evidence. By email correspondence on 20 September 2017, the Tribunal invited the applicant to attend a rescheduled hearing on 5 October 2017, which was further rescheduled to 19 October 2017 and at which the applicant attended where he was assisted by an Urdu interpreter.
By its decision made on 29 January 2019, the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa. The applicant was notified of the Tribunal’s decision by email transmission on 31 January 2019 which attached a copy of the Tribunal’s Statement of Decision and Reasons (Decision) and an ‘Information about decisions – MR Division’ factsheet.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out the application for review and outlined the relevant protection visa criteria by reference to ss 5, 36, 91R and 91S of the Act, Sch 2 to the Regulations, Article 1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1976 Protocol relating to the Status of Refugees and Ministerial Direction No. 56 made under s 499. It noted the requirement to consider policy guidelines prepared by the Department of Immigration (PAM3) Refugee and humanitarian – Complementary Protection Guidelines, any country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) – specifically being the DFAT Country Information Report for Pakistan dated 1 September 2017, and the 2015 UK Home Office Country Information.
The Tribunal identified the key matters for determination, namely whether the applicant was a person in respect of whom Australia has protection obligations pursuant to ss 36(2)(a) and (aa) of the Act, or is a member of the same family unit to a person in respect of whom the Tribunal is satisfied has protection obligations. The Tribunal summarised the applicant’s claims made to the delegate, and cumulatively considered his claims, evidence before the delegate and oral submissions made in the hearing, concluding at [30] and [159] of the Decision that the decision not to grant the applicant a protection visa is affirmed.
The Tribunal identified the salient points of the applicant’s claim before the delegate as follows:
·the applicant belongs to the Pakistan Shia community and is a member of a Shia based organisation, KPSIAJ: Decision at [32];
·the applicant has been subjected to threats and attacks in Pakistan because of sectarian clashes between the Shia and Sunni community: at [33];
·during his stay in Australia, demands had been made of his family to pay ransom money to criminal groups, or he will otherwise be killed if returned to Pakistan: at [37]. The applicant was unable to seek protection from the local authorities as they stated that “these things happen in Pakistan often”: at [38];
·during the applicant’s fourth arrival in Pakistan, on 24 February 2014, the applicant was attacked by an anti-Shia criminal group during his journey from a mosque. He was not injured but the police advised him to return to Australia where he would be safe: at [39];
·the applicant received threats and threatening calls that if he were to remain in Pakistan he would be killed and claimed that he is exposed to persecution by anti-Shia groups for being an active volunteer and participant at his mosque: at [42]–[43], [46]; and
·the local authorities in Pakistan cannot help or protect anyone who is of Shia denomination: at [47].
Applicant’s arrival in Australia in 2007
The Tribunal asked the applicant why he arrived in Australia in 2007. The applicant explained that he “experienced a lot of difficulties in Pakistan”, he “had issues with his religion” and wanted to take a break from threatening phone calls: Decision at [51]. The applicant claimed that he started receiving threatening phone calls after a holy month, Muhurram, and that the police only protect Shia people 10 days after the end of Muhurram: at [55]. The applicant stated that he received the threatening phone calls again in Pakistan, 4.5 years after his arrival to Australia, stating words to the effect of, “you are escorting and doing donations … the Shia are infidel and you must be killed … we won’t let you live in peace here”: at [57]–[58]. The applicant claims that he received the threatening phone calls once a day at the conclusion of Muhurram and throughout the year whilst he was residing in Pakistan. The calls were unable to be traced, but nevertheless, no threats were carried out: at [59]–[60].
The Tribunal inquired why the applicant did not change his phone number to avoid the threatening phone calls, and the applicant responded that “he liked his number as it was his ‘identification’ and he didn’t want to change it”. The applicant stated that he was not in possession of that phone and it was left in Pakistan. He was in possession of the SIM card, but did not use it on a phone as he wanted a break from the threats: at [60].
The Tribunal noted that the applicant applied for a protection visa seven years after his first arrival to Australia: Decision at [51] and found that the applicant only received threatening phone calls whilst he was onshore in Pakistan: at [59]. At no stage did the applicant receive any threatening phone calls to that effect whilst he resided in Australia: at [58]. As the Tribunal found the applicant’s evidence to be lacking credibility and his explanations as not convincing, it did not accept the applicant’s evidence concerning the retention of his SIM card and phone number to be true: at [61].
First return trip to Pakistan
The Tribunal asked the applicant why he returned to Pakistan on 10 October 2011 for around 2 months after his arrival in Australia. The applicant explained that he was missing his parents and wanted to see if “things were getting normal”. He claimed that he suffered no physical harm and experienced no difficulties other than receiving phone calls from people who did not accept his religion: Decision at [65]–[66], [71].
The Tribunal expressed concern about the applicant’s explanation that he returned to Pakistan to assess the situation, because in the event the threats of harm were true, a reasonable person would not place themselves in potential danger: Decision at [65]. The Tribunal also found it implausible that anti-Shia groups would continue to convey their views 4 years after the applicant had been residing in Australia as there is no identifiable benefit for them to do so: at [66].
The Tribunal asked the applicant how his callers would have known when he returned to Pakistan, and how they would have obtained his phone number. The applicant said they were aware of his return as he would involve himself in activities at the local Mosque, and obtained his number from recharging facilities as the people who run the facilities are connected to the attackers: Decision at [68]–[69]. The Tribunal further queried whether there was any reason why the attackers would maintain an interest in him considering that he had spent substantial time in Australia. The applicant responded that they are extremists who know when he returns: at [70].
The Tribunal noted that the applicant received no threatening phone calls during his stay in Australia: at [68]. It found the applicant’s response about how the attackers obtained his number to be lacking credibility and did not accept the applicant’s explanation: at [69]. The Tribunal neither accepted the applicant’s explanation about how his callers would know when he returns to Pakistan: at [70].
Second, third and fourth return trips to Pakistan
The applicant returned to Pakistan on three separate occasions in 2012, 2013 and 2014 respectively. The Tribunal inquired the reason for the trips and the applicant stated that he wanted to “check out life ‘over there’ [in Pakistan]” and to “see how things were in his home country”: Decision at [77], [79]. The applicant continued to receive threatening calls during his stay in Pakistan and by his third visit in 2013, he did not take the threats seriously as they were just “words out of the mouth”: at [80]–[81]. The applicant clarified that the motivation for seeking a protection visa was because he was subjected to an attack on 24 February 2014 which he classified as ‘serious’: at [81].
The Tribunal observed that the applicant’s involvements with KPSIAJ after 2007 have been limited and there is no evident explanation why the applicant would suddenly receive threatening calls after his return from Australia: Decision at [78]–[80]. The Tribunal noted that the applicant’s submission that he had not taken the phone calls seriously to not be indicative of him having a genuinely held fear of suffering serious harm: at [84]. The Tribunal otherwise dealt with the applicant’s oral claims as follows:
85. The Tribunal has assessed the evidence before it concerning the alleged receipt of phone calls by the Applicant prior to 23 February 2014, both individually and cumulatively. The Tribunal did not find the evidence of the Applicant upon this issue to be at all convincing. The Tribunal is not satisfied that extremists or others would have means to establish when the Applicant returned to Pakistan; the Tribunal is not satisfied by the Applicant’s evidence as to why he would not have changed his mobile phone number to avoid being contacted. Further, the Tribunal is not satisfied as to the Applicant’s evidence that persons involved in recharging mobile phones would pass on information to extremists or others. The Applicant’s explanation as to why his mobile phone was not in Australia whereas his SIM card was, is not credible. In the circumstances the Tribunal does not accept the Applicant did receive threatening mobile phone calls as he claims prior to 23 February 2014. As such, there is no evidence.
23 February 2014 incident
The applicant claimed to have received another phone call on 23 February 2014 where the caller threatened both him and his wife. The Tribunal again found it improbable that the applicant would receive another threatening phone call 7 years after his first departure from Pakistan, and considering that the applicant and his wife attended a public event the next day, the Tribunal did not consider that to be consistent with the applicant holding a genuine fear of suffering serious harm. The Tribunal therefore did not accept the applicant received a threatening phone call on 23 February 2014 as alleged: Decision at [86]–[88].
24 February 2014 incident
The applicant also claimed that on 24 February 2014, he and his wife attended an event and on their way home, they were attacked by 2 people on a motorbike who attempted to shoot the rear of the applicant’s car. The Tribunal queried whether this incident involved an attempted robbery as opposed to an attack by extremists, and the applicant replied that if the former occurred, they would not have shot bullets. The Tribunal adjourned the hearing to allow the applicant to obtain photographs of damage to the vehicle and any further evidence: Decision at [89]–[92].
Resumption of the hearing on 19 October 2017
On resumption of the hearing, the applicant did not provide further evidence as he was unable to source any photographs of damage to the vehicle. The applicant explained that the local authorities did not respond to the incident and that he did not take a First Incident Report (FIR). The Tribunal expressed concern about the applicant’s limited evidence considering the seriousness of the alleged incident and noted that it “lacks credibility”. The Tribunal did not accept the incident on 24 February 2014 occurred as claimed and reasoned as follows:
93. … The Tribunal has concerns about this evidence when considered in light of the seriousness of the alleged shooting incident [an attempt to maim or murder the Applicant and/or his family] and in context of the claimed 23 February. 2014 threatening phone call. That the Applicant and/or his father would not secure photos, in light of their determination to report the matter to police, lacks credibility. The Tribunal has noted a document submitted by the Applicant to the Tribunal which indicates that his father commenced court proceedings on or about 17 May 2014 to seek orders to compel the police to accept a First Incident Report and inquire into the shooting incident. That no photographic evidence of the damaged car was ever secured to provide to the department (and this Tribunal) lacks credibility. The Tribunal does not accept that the alleged threatening phone call on 23 February 2014 and subsequent 24 February 2014 alleged shooting incident did occur.
The Tribunal verified a document submitted to the delegate, specifically a court application purportedly lodged in the District Court of Karachi West seeking an order to compel the local authorities to lodge a FIR in relation to the incident on 24 February 2014 and that protection be provided to the applicant and his family. The Tribunal accepted the document as genuine, but noted that this was not proof the alleged incident on 24 February 2014 occurred as claimed: Decision at [112]–[113].
The applicant made further submissions at the resumed hearing, to the effect that he would suffer harm from Sunni extremists arising from his involvement in Shia related organisations: Decision at [95]–[104]. The Tribunal otherwise reasoned and assessed the applicant’s oral evidence as follows:
(a)as previously mentioned at [93], the Tribunal rejected the applicant’s claims concerning the incidents on 23 and 24 February 2014: at [101];
(b)the applicant produced no evidence or information to support the claim that he would not receive police assistance: at [104];
(c)the Tribunal did not find the claimed threatening phone calls to be convincing, and as the applicant expressed that he did not take the phone calls seriously, the Tribunal did not accept the events as claimed: at [114];
(d)to the extent that the applicant refused to change his number as he was ‘attached’ to it and that terrorists obtained his number from a public recharging venue, the Tribunal did not find this convincing and did not accept this evidence: at [115];
(e)the fact that the applicant returned to his home country on four separate occasions to ‘assess how things were’ is not indicative of someone in fear of their own safety: at [116], and the Tribunal found this account to be lacking in credibility: at [103]; and
(f)the applicant did not file a police report in relation to the threatening phone call on 23 February 2014 nor provide any evidence or images that the shooting incident occurred on 24 February 2014. To the extent that the applicant claimed that the shooting incident was the main motivator for seeking protection, the Tribunal noted that this was not reflected in his written claims, despite applying for protection only six weeks after the incident. The Tribunal reiterated its finding that it did not accept that the phone call on 23 February 2014 and that the shooting incident on 24 February 2014 occurred: at [117]–[119].
The Tribunal found:
(a)pursuant to the relevant DFAT Country Information Report, there was minimal risk that covert supporters of the social liberal Pakistani party face a risk of harm, and there was no evidence before it that the applicant is an overt supporter. Nevertheless, the applicant did not claim that he suffered any harm because he supported the social liberal party: Decision at [133]–[135];
(b)there was no evidence or information before the Tribunal suggesting the applicant has been subjected to serious harm or threat of harm because he was of Mohajir ethnicity: at [136], and it did not accept the applicant will face a real chance of serious harm for this reason: at [140];
(c)there was no country information indicating that members or supporters for the KPSIAJ are at risk of suffering serious harm: at [142] and the Tribunal did not accept that the applicant would suffer serious harm for this reason: at [143]; and
(d)the applicant had not suffered any harm for being a Shia Muslim: at [144]. The Tribunal considered the relevant DFAT Country Information Report for Pakistan dated 1 September 2017 and the 2015 UK Home Office Country Information and reasoned that the risk of the applicant being persecuted because he is a Shia Muslim is remote: at [150]. The Tribunal was not satisfied that the applicant will face a real chance of suffering harm either now or in the foreseeable future, nor that there exists a real chance of persecution for any Convention based reason: at [144]–[151].
The Tribunal was therefore not satisfied the applicant was a person in respect of whom Australia had protection obligations and consequently he does not meet ss 36(2)(a) and (aa) of the Act. The Tribunal affirmed the decision not to grant the applicant a protection visa: Decision at [156]–[159].
CONSIDERATION
By his judicial review application, the applicant alleges error as follows:
1.the tribunal failed to properly consider all of my claims.
2.the tribunal did not give me a chance to comment on one aspects (sic) of my claims.
Self-evidently, these grounds contain bare, general and unparticularised allegations of jurisdictional error. Without particulars of the errors alleged, the grounds do not establish jurisdictional error. Despite orders of the Court enabling the applicant to file written submissions, further materials and any amended application with proper particulars of the grounds of application, he has not done so.
During the hearing, the applicant’s solicitor explained that she had not yet received instructions from her client with respect to amending the application. She said that she and her client were occupied with other litigation, and the applicant had yet to receive the file from the applicant’s former solicitors. The applicant’s solicitor sought a two-week adjournment which was opposed by the first respondent. The request was refused. The applicant had already been afforded a four-week adjournment and have been given an extension of time to file relevant materials. No attempt has been made to access the court file to obtain relevant material, nor has there been any request of the first respondent for it to provide the applicant a further copy of the court book and related material. The first respondent’s written submissions were served on the applicant on 8 May 2025, after the applicant’s former solicitors withdrew. The applicant has had ample opportunity to comply with the Court’s orders. The applicant neither complied with the orders nor sought to communicate with my chambers or the registry before the hearing seeking an extension to enable compliance. Despite the earlier indulgence, the applicant gave no indication prior to the commencement of the hearing of his inability to proceed with final hearing as scheduled, nor did he make or foreshadow an adjournment application. I allowed a short adjournment to enable the applicant’s solicitor to confer with her client and thereafter the hearing proceeded.
As earlier mentioned, the applicant abandoned his second ground and pressed only the first ground of review by contending that the Tribunal failed to consider all of his claims. As already noted, the application does not particularise the allegation but at the hearing before me the applicant argued that the Tribunal committed jurisdictional error in respect of its assessment of the existence of a real risk of significant harm in s 36(2)(aa) of the Act by failing to consider two events advanced by the applicant – the telephone call incident which was said to have occurred on 23 February 2014 and the motor vehicle incident which was said to have occurred on 24 February 2014. By failing to consider these events, the applicant says the Tribunal erroneously assessed the complementary protection criterion as to its finding of whether the applicant faced a real chance of harm or a risk that he would suffer significant harm if returned to his home country.
It is uncontroversial that the Tribunal was statutorily required to examine and deal with the applicant’s claims, including an integer of his claims: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, 144 FCR 1 at [57]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, 233 FCR 136 at [42], but insofar as the applicant alleges jurisdictional error because the Tribunal failed to deal with the events on 23 and 24 February 2014, I do not accept the Tribunal erred.
The Tribunal dealt with the applicant’s claim concerning the alleged incident on 23 February 2014 which is reproduced at [86]–[88] of the Decision. The Tribunal observed at [87] that it was highly improbable that the applicant would receive a threatening call during his fourth return visit to Pakistan, seven years after his initial arrival to Australia. It further observed at [88] that notwithstanding the applicant’s assertion that the incident was genuine and serious, the applicant and his family attended a public event the next day. The Tribunal considered this to be inconsistent with the applicant holding a genuine fear of suffering serious harm and therefore did not accept the incident on 23 February 2014 occurred as claimed: at [88], [93]. The Tribunal made general credibility findings about the incident at [114] and [117], before concluding at [119] that it did not accept the alleged phone call on 23 February 2014 as credible. In rejecting the claim as not credible, the Tribunal reasoned that:
(a)the applicant’s evidence of threatening phone calls prior to the incident on 23 February 2014 was not convincing: at [114];
(b)the applicant did not regard the calls as serious and only became concerned of his safety after the phone call on 23 February 2014: at [114]; and
(c)the applicant and his family travelled to a public event the next day utilising public roads and no police report of the incident was made: at [117].
The Tribunal also dealt with the applicant’s claim concerning the alleged incident on 24 February 2014 which is recorded at [89]–[92] of the Decision, and again at the resumption of the hearing at [93]. The Tribunal observed that considering the seriousness of the incident, the absence of photographic evidence of damage to the vehicle lacked credibility, and recorded at [93] that it did not accept the incident on 24 February 2014 occurred as alleged. The Tribunal noted at [112]–[113] that it sought to verify the authenticity of a document submitted by the applicant to the Department which appeared to be an application purportedly lodged in the District Court of Karachi West concerning the incident on 24 February 2014. Upon authentication, the Tribunal recorded that the document is legitimate and accepted it as genuine, however, it noted at [113] that the document did not amount to proof the event on 24 February 2014 occurred. The Tribunal made general credibility findings about the incident at [118], before concluding at [119] that it did not accept the shooting incident on 24 February 2014 to be true. Here the Tribunal reasoned:
(a)the applicant did not detail the events of 24 February 2014 in his claims to the Department, despite lodging his application six weeks after the incident occurred: at [118];
(b)there was no photographic evidence of damage to the vehicle, which would reasonably be expected considering both the seriousness of the event and the fact that he sought police assistance: at [118]; and
(c)an attempt to file a FIR is not evidence that the incident occurred: at [118].
For the reasons set out above, together with the Tribunal’s cumulative assessment of all claims and evidence submitted by the applicant, the Tribunal was not satisfied that the applicant will face a real chance of suffering serious harm if he were to return to his home country either now or in the foreseeable future. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. Having found that there is not a real chance the applicant has suffered serious harm nor a real risk he will suffer significant harm, the Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he would suffer significant harm. Consequently, the Tribunal concluded the applicant did not meet the criterion in s 36(2)(aa) of the Act.
It is clear on a reading of the Tribunal’s reasons that it gave detailed consideration to the claims (including the two impugned claims) and evidence before it and appropriately turned its mind to the task of assessing the complementary protection criterion guided by s 36(2)(aa) of the Act. The applicant has not pointed to any instance or example within the Tribunal’s reasoning in which it made erroneous findings or findings which were not open to it with respect to the incidents on 23 and 24 February 2014, and a reading of the Tribunal’s reasons does not indicate otherwise. The applicant’s oral submissions take this matter no further. Nevertheless, during the hearing, I raised with the first respondent an issue following from the applicant’s singular submission that raises the question whether the Tribunal committed jurisdictional error, albeit that it was not raised by the applicant in the hearing.
The Tribunal appears to make general credibility findings of the applicant under a heading, “The general credibility of the Applicant” which subsumes [114]–[119] of the Decision. At [118], the Tribunal records its findings of whether the incident on 24 February 2014 occurred, and at [119], the Tribunal concluded that it did not accept the incident on 24 February 2014 to be true by relying on the applicant’s lack of credibility concerning the incident on 23 February 2014:
119. Having considered the credibility of the Applicant concerning the claimed threatening phone calls and the alleged shooting incident, the Tribunal also does not accept the evidence concerning the alleged 23 February 2014 phone call as being credible. It does not accept this claim to be true.
A chain of reasoning which relies upon an adverse credibility finding in relation to one matter is not a sound basis for concluding that the applicant is not being truthful in respect of another. Credibility findings must be rationally made and articulated properly: CQO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 97 at [33], and may involve jurisdictional error on grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, 263 FCR 292 at [33]; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, 250 FCR 109 at [83]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516.
The first respondent contended that the Tribunal turned its mind to the incident on 23 February 2014 earlier at [86]–[88] of the Decision and that at [88] the Tribunal did not accept the incident on 23 February 2014 occurred as claimed. The first respondent stated that on a reading of [119], the Tribunal is merely reiterating a finding which had been made earlier at [88]. The first respondent submits that the Tribunal did not rely on credibility findings of the applicant in respect of the incident on 23 February 2014 to reject the claim of 24 February 2014 because, in the context of [114]–[119] as a whole, the Tribunal is considering globally the phone call, but in so doing, separately considered and made a finding in respect of the 24 February 2014 incident having earlier canvassed the relevant evidence at [118]. The first respondent accepted that the last sentence in [119] is ambiguous, but that at the very least, the Tribunal’s reasons for not finding the incident as credible is set out in its operative findings at [118]. I accept the first respondent’s submissions.
It is trite law that reasons for a decision of an administrative decision-maker under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The reasons are meant to inform and not to be scrutinised over-zealously on judicial review by seeking to discern whether there is some inadequacy in the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang and Liu Jun Liang [1996] HCA 6, 185 CLR 259 at 271–272; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456, 43 FCR 280 at 287; McAuliffe v Secretary, Department of Social Security [1992] FCA 731, 28 ALD 609 at 616. The reasons must be read fairly and as a whole: Wu Shan Liang at 291, and to establish jurisdictional error, the error must be material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321 at [15]; CQO23 at [38]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 264 CLR 123 at [29]–[31].
Read as a whole, the Tribunal’s reasons at [119] of the Decision appear to reiterate its findings – that it does not accept the incident on 23 February 2014 to have occurred as claimed – which have been made earlier at [88] and [93]. Despite its reasons at [119] being subsumed under a heading, “the general credibility of the Applicant”, the heading is inaccurate, as the Tribunal appears to have conflated the difference between findings of the general credibility of the applicant as opposed to the general credibility of the claim itself. Read fairly at [118]–[119], the Tribunal is in fact making findings on whether evidence about the incidents on 23 and 24 February 2014 is credible, not whether the applicant himself is a credible witness, and the Tribunal merely reiterates its findings which have been made earlier in the Decision for the reasons that it gave.
The ambiguity arising from the way the reasons are expressed at [119] is not surprising, as the Tribunal’s reasons are untidily organised and repetitive. The Tribunal makes the same finding with respect to the applicant’s claim of 23 February 2014 at three separate places in the Decision: at [88], [93] and [119]. The reasons are incorrectly numbered in that the Decision on page 1 begins at [155] and page 6 begins at [27]. And page 24 of the Decision appears to be a remnant of an annotated draft page containing an internal comment alongside the comments pane of the page, which the Tribunal has seemingly neglected to remove before publication.
It is uncontroversial that the Court’s jurisdiction is supervisory and so the Court is not concerned with untidy phrasing or infelicity in the expression of the Tribunal’s reasons. It must be borne in mind that in general, untidiness in the reasons of the Tribunal, though careless it may be, will not disclose jurisdictional error: S14/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34]; FRH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 404 at [42]. But aside from mere untidiness, I consider that the Tribunal set out rational reasons for its findings at [119] of the Decision, and the decision it made was open to it in view of the evidence before it.
Consequently, no jurisdictional error is disclosed in the applicant’s singular ground of review advanced nor in the matter pertaining to the Tribunal’s credibility findings discussed above. As no jurisdictional error has been shown the applicant’s application must fail.
Disposition
The application for judicial review is dismissed.
The first respondent sought an award of costs fixed in the sum of $6,000.00 in the event the applicant was unsuccessful. The amount is less than the amount currently fixed by item 3, Pt 2, Div 1 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) for a migration matter determined at final hearing. I consider the amount sought to be reasonable and reflective of the costs incurred by the first respondent. The applicant is to pay the first respondent’s costs fixed in the sum of $6,000.00.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 23 July 2025
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