BGZ21 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1067
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BGZ21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1067
File number(s): SYG 879 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 10 July 2025 Catchwords: MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – applicant provided new information to Authority - whether Authority erred in deciding that it must not consider new information
COSTS – whether court should make order for costs against lawyer
Legislation: Migration Act 1958 (Cth) ss 5H, 36, 65, 473DC, 473DD, 476
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 22.06(1)
Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503
Mitry Lawyers v Barnden [2014] FCA 918
Plaintiff M1/2021 v Minister for Home Affairs [2021] HCA 17; 275 CLR 582
SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456
Yu v Cao [2015] NSWCA 276; 91 NSWLR 190
Division: Division 2 General Federal Law Number of paragraphs: 69 Date of hearing: 12 June 2025 Place: Parramatta Counsel for the Applicant: Ms A Aleksov Solicitor for the Applicant: No appearance Counsel for the Respondents: Mr M Maynard Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 879 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BGZ21
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs in the sum of $8,000.
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 ZIPSER
INTRODUCTION
On 17 May 2021, the applicant lodged an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 12 April 2021. The IAA affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV) under s 65 of the Act.
For the reasons that follow, the application is dismissed.
FACTUAL BACKGROUND
In December 2012, the applicant, a citizen of Pakistan, arrived in Australia as an unauthorised maritime arrival.
On 31 August 2017, the applicant lodged an application for a SHEV.
On 8 March 2021, a delegate of the first respondent (Delegate), after interviewing the applicant on 18 February 2021, made a decision refusing to grant the visa.
On 11 March 2021, the matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
On 1 April 2021, the applicant’s representative emailed a submission (April 2021 Submission) and attached country information to the IAA.
On 12 April 2021, the IAA made a decision affirming the Delegate’s decision not to grant the applicant a SHEV.
IAA’S DECISION
The IAA at [2]-[7] considered whether the material provided by the applicant’s representative to the IAA on 1 April 2021 was “new information” within the meaning of s 473DC(1) of the Act and, for any material which was “new information”, whether the IAA was barred by s 473DD from considering the material. In relation to this consideration:
(a)The IAA at [4] found that the submission did not constitute “new information”.
(b)The IAA at [5]-[7], after finding that the accompanying country information was new information, considered whether it was barred by s 473DD from considering the material and found that it was barred from considering the material.
The IAA at [8]-[9] considered, and refused, the applicant’s request to invite him to an interview under s 473DC of the Act to obtain further information from him.
The IAA at [11]-[27] made factual findings concerning the applicant’s claims.
The IAA at [28]-[41] considered whether the applicant was a refugee within the meaning of s 5H(1) of the Act. The IAA at [41] concluded that the applicant “does not meet the requirements of the definition of refugee in s 5H(1)”.
The IAA at [42]-[47] considered whether the applicant satisfied the complimentary protection criterion for a protection visa in s 36(2)(aa) of the Act. The IAA at [47] concluded that the applicant did not meet s 36(2)(aa).
PROCEDURAL HISTORY
Judicial review application and steps up to hearing on 12 June 2025
On 17 May 2021, the applicant lodged in this Court an application for judicial review of the IAA’s decision (Application). The Application was prepared and signed by the applicant’s lawyer (Applicant’s Lawyer). The Application contained three grounds.
On 4 June 2021, the parties’ lawyers emailed proposed procedural orders by consent to the registry of the Court. On 10 June 2021, a registrar of the Court made the procedural orders (June 2021 Orders), including that:
(a)the applicant file and serve by 2 September 2021 any amended application with proper particulars; and
(b)upon the matter being listed for final hearing, the applicant file and serve a written submission not later than four weeks before the final hearing, and the first respondent file and serve a written submission not later than two weeks before the final hearing.
Following a period of inactivity, on 30 April 2025 the registry of the Court notified the parties’ lawyers by email that the matter was listed for hearing before me on 12 June 2025 at the Federal Circuit and Family Court of Australia in Parramatta.
On 8 May 2025, the Applicant’s Lawyer sent an email to my chambers seeking leave for counsel for the applicant to appear at the hearing by AVL “due to … counsel having to appear in another matter in Melbourne the same day”. After the first respondent’s solicitor also requested leave for the first respondent’s counsel to appear by AVL, on 12 May 2025 my chambers sent an email to the parties’ lawyers stating that the parties’ lawyers may appear at the final hearing by video link. The email included the video link.
Pursuant to the June 2021 Orders, the applicant’s submissions were due to be filed and served by 15 May 2025. On 18 May 2025, the first respondent’s solicitor sent an email to the Applicant’s Lawyer noting that “the applicant’s submissions were due to be filed and served by last Thursday 15 May 2025” and requesting that the Applicant’s Lawyer “send us your submissions as a matter of urgency”.
On 21 May 2025, the Applicant’s Lawyer replied in an email to the first respondent’s solicitor that “we are instructed to request extension until 26 May 2025 for submission”.
On 22 May 2025, the first respondent’s solicitor replied in an email to the Applicant’s Lawyer that the first respondent agreed to the extension sought by the applicant on condition that the first respondent had a corresponding extension to 9 June 2025 to file his submissions. The first respondent’s solicitor invited the Applicant’s Lawyer to sign a proposed consent order attached to the email to vary the timetable as discussed in the email.
By 27 May 2025, the Applicant’s Lawyer had neither filed or served a submission nor responded to the email from the first respondent’s solicitor dated 22 May 2025. In this context, which included the fact that the Applicant’s Lawyer had notified the Court and the first respondent’s solicitor that counsel was briefed for the applicant, on 27 May 2025 the first respondent’s solicitor sent an email to my chambers, copied to the Applicant’s Lawyer, which stated:
This matter is listed for hearing before Judge Zipser on 12 June 2025.
Pursuant to leave to apply in order 8 of the orders made by Registrar Carney on 10 June 2021 (copy attached), the first respondent respectfully requests that this matter be listed for a telephone directions hearing at the Court’s earliest convenience.
The timetabling orders provide that the applicant’s submissions were due to be filed and served by Thursday 15 May 2025 (ie, 28 days before the final hearing). This did not occur. The first respondent made enquiries with the applicant’s solicitor by email to request the applicant’s submissions. The applicant responded that he was ‘instructed to request extension until 26 May 2025 for submissions’. The first respondent proposed a variation to the timetable to allow such extension on the basis of a corresponding extension to the first respondent. However, no submissions from the applicant, nor any response to our email proposing a variation to the timetable have been received to date.
The applicant’s solicitor has been informed that if we did not receive the applicant’s submissions by 10.00 am this morning, the first respondent would excise liberty to apply to request the matter be listed for a telephone directions hearing.
As I am based in Sydney CBD, we respectfully request his Honour list the matter for a telephone or webex directions hearing in the next few days.
On 27 May 2025, my chambers sent an email to the parties’ lawyers stating that the matter was listed for a directions hearing before me at 9:30 am on 29 May 2025 and the parties could attend the listing by video link. The email added:
If the parties agree on an amended timetable for the filing and service of materials leading up to the hearing on 12 June 2025 and email the amended timetable to chambers prior to the directions hearing, his Honour can make procedural orders in chambers and vacate the directions hearing.
On 29 May 2025, there was a directions hearing in the matter. Ms Warner-Knight appeared by video link for the respondents. There was no appearance, either in person or by video link, for the applicant. Ms Warner-Knight informed me that the Applicant’s Lawyer had not contacted her between 27 and 29 May 2025. The Applicant’s Lawyer had not contacted my chambers between 27 and 29 May 2025. At Ms Warner-Knight’s request, I extended time for the first respondent to file and serve a written submission until 10 June 2025. In a context where:
(a)I had listed the matter for a directions hearing on 29 May 2025 because of a procedural default by the applicant;
(b)the Applicant’s Lawyer had represented the applicant at all times since the commencement of the proceeding;
(c)the Applicant’s Lawyer did not appear at the directions hearing on 29 May 2025; and
(d)the Applicant’s Lawyer had communicated no explanation to the first respondent’s solicitor or chambers as to why he did not appear at the directions hearing,
I made the following additional order (Show Cause Order):
The applicant’s solicitor on the record show cause at the hearing on 12 June 2025 as to why the Court should not order, pursuant to rule 22.06 of the Federal Circuitand Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), that he personally pay the first respondent’s costs of and incidental to the listing today.
On 29 May 2025, my associate emailed the orders to the parties’ lawyers (29 May Email).
On 30 May 2025, the Applicant’s Lawyer sent an email to my chambers and the first respondent’s solicitor attaching a copy of the consent order, now signed by the Applicant’s Lawyer, emailed by the first respondent’s solicitor to the Applicant’s Lawyer on 22 May 2025.
On 5 June 2025, the first respondent lodged with the Court a written submission. The written submission responded to a proposed amended application (recorded in the submission as received by the first respondent on 2 June 2025) and written submission prepared on behalf of the applicant.
On 10 June 2025, the applicant lodged with the Court the proposed amended application dated 2 June 2025 (Amended Application) which deleted the three grounds in the Application and added a new ground as follows (as written):
4.The IAA erred in its approach to s 473DD(b)(i) in relation to the Pak Institute articles in the agents IAA submissions.
On 11 June 2025, the applicant lodged with the Court a written submission dated 27 May 2025 (AS). Since this submission is referred to in the first respondent’s written submission, the Applicant’s Lawyer must have served the submission on the first respondent prior to 5 June 2025.
On 11 June 2025, the Applicant’s Lawyer sent an email to my chambers, piggybacked onto the 29 May Email, requesting that chambers “kindly provide the link for tomorrow’s hearing”. Although my chambers had previously included the video link in an email to the parties’ lawyers on 12 May 2025, on 11 June 2025 my chambers sent an email to the parties’ lawyers which again included the video link. This email chain indicates that the Applicant’s Lawyer received a copy of the orders made on 29 May 2025, including the Show Cause Order, was aware of the hearing date on 12 June 2025, and had a video link to the hearing.
Hearing on 12 June 2025
Substantive proceeding
At the hearing in this Court on 12 June 2025, Angel Aleksov of counsel appeared for the applicant by video link, and Michael Maynard of counsel appeared for the first respondent by video link. The Applicant’s Lawyer did not attend the hearing, either by video link or in person.
A Court Book (CB) was tendered which contained the IAA’s decision and documents before the IAA.
I granted the applicant leave to rely on the ground in the Amended Application.
Counsel made oral submissions which supplemented their written submissions. I address the written and oral submissions below.
Submissions on costs
At the end of the hearing:
(a)I invited submissions on the costs order sought by the parties in relation to the substantive proceeding; and
(b)in connection with the Show Cause Order I made on 29 May 2025, I invited submissions.
I address the submissions on costs at the end of this judgment under the heading “Costs”.
CONSIDERATION
Introduction
As stated above, the single ground in the Amended Application is:
4.The IAA erred in its approach to s 473DD(b)(i) in relation to the Pak Institute articles in the agents IAA submissions.
To understand this ground, it is necessary to understand:
(a)aspects of the applicant’s claims considered by the Delegate;
(b)the manner in which the Delegate dealt with the claims in her decision dated 8 March 2021;
(c)the manner in which the applicant’s representative, in the April 2021 Submission, sought to rely on the new information referred to in the ground in the Amended Application; and
(d)the manner in which the IAA, in its decision dated 12 April 2021, dealt with the new information referred to in the ground in the Amended Application.
The applicant claimed to be a Sunni Pashtun from the city of Quetta in the state of Balochistan in Pakistan. He claimed to fear harm from the Taliban and other militant groups in Quetta.
One aspect of the applicant’s claims was that he and his brother M were targeted by the Taliban. In his written claims, he claimed that in 2011 the Taliban surrounded the village where he and M lived, and then captured and killed M. At the interview with the Delegate on 18 February 2021, he amended this claim and explained that, while he believed up until 2018 that M was killed by the Taliban in 2011, in 2019 his mother informed him that M was captured and imprisoned in a well (but not killed) by the Taliban in 2011, and M was now in hiding from the Taliban.
The Delegate, in her decision dated 8 March 2021, accepted that the applicant was a Sunni Pashtun from Quetta. In response to the applicant’s claims that he and M were targeted by the Taliban, the Delegate “did not accept that the applicant or his brother were targeted by the Taliban in 2011” and did “not accept that … the applicant’s brother was kidnapped by the Taliban in 2011 and imprisoned in a well until 2017” (CB 237).
The Delegate accepted that the applicant “fears harm from the violence perpetrated by militant groups in Quetta” and that “country information indicates that the security situation in Quetta is volatile” (CB 239.5). However, the Delegate continued that “country information also indicates that the violence in Quetta is largely directed against the government and security forces or Shia Hazaras” (CB 239.5). In circumstances where the applicant had no connection to government or security forces and was not a Shia Hazara, the Delegate “found no information that supports a finding that [the applicant] has a well-founded fear of persecution on return to Quetta due to his Pashtun ethnicity or his Sunni religion” and therefore was “not satisfied that the applicant faces a real chance of persecution as a Sunni Pashtun in Quetta” (CB 239.7).
On 1 April 2021, the applicant’s representative provided the April 2021 Submission and attached country information to the IAA. The country information included three press releases from the Pak Institute for Peace Studies (PIPS) as follows:
(a)The oldest press release, dated 7 February 2020, was titled “Terrorism-related fatalities surged by 106 pc in January 2020: PIPS monthly security review in Pakistan” (CB 377).
(b)The next press release, dated 5 June 2020, was titled “Baloch insurgents step up terrorist onslaught” (CB 376).
(c)The most recent press release, dated 3 January 2021, was titled “While TTP and affiliates continued to regroup in ex-FATA, Sindhi and Balock insurgent groups also intensified attacks in 2020” (CB 373-374).
The April 2021 Submission referred to the three PIPS press releases under the heading “General security situation in Balochistan”. The submission relevantly stated (CB 272):
3.3 The Delegate ‘accepted the applicant is fearful of the violence in Balochistan if he returns to Pakistan and the applicant believes the authorities in Pakistan will not effectively protect him’.
3.4 DFAT’s most recent country report for Pakistan notes that: Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). [9]
3.5 We also note below general security information over the past two years in Pakistan:
• In 2019:
o Terrorist attacks occurred in 20 districts of Balochistan including 22 from provincial capital Quetta alone, nine (9) from Kech, eight (8) from Qilla Abdullah, mainly Chaman, six (6) from Loralai and five (5) attacks each from Dera Bugti, Nasirabad, and Panjgu. [10]
• In 2020:
o TPP and Baloch insurgent groups have intensified attacks [11]
o Baloch insurgents were described as ‘stepping up’ their terrorist onslaught (June 2020); [12] and
o Terrorism-related fatalities surged by 106% in January 2020. [13]
3.6 The above country information as well as information provided in post-interview submissions by the Applicant’s previous migration agent outlines the continually fluctuating security situation in the Applicant’s home area of Balochistan, and therefore the real risk of harm the Applicant faces at the hands of the Taliban due to his risk profile outlined above, if he is forcibly returned to Pakistan.
Footnotes 11, 12 and 13 (marked by numbers in square brackets in the above paragraph) referred to the PIPS press releases as the source of the information in the footnoted sentences.
The applicant’s representative, aware that the PIPS press releases and three additional items of country information were “new information” within the meaning of s 473DC of the Act, explained on a separate page of the submission under the heading “New Information Submission” why the material met the requirements of s 473DD of the Act. The representative wrote:
1.2The following new information is provided with the application:
•Australian Government, Refugee Review Tribunal, “Issues Paper: The Pakistan Taliban”
•US Department of State Country Reports on Human Rights Practices for 2011
•LandInfo, “Afghanistan: recruitment to Taliban”
•Articles from the Pak Institute for Peace Studies (PIPS)
Exceptional circumstances
1.3 We submit there are exceptional circumstances which justify the consideration of the above new information. The Applicant was not represented by his migration agent at the Interview. It was at the Interview that the Delegate first learned that the Applicant had discovered his brother was not dead but had been kidnapped by the Taliban.
1.4 This information was used against the Applicant in the decision as the Delegate did not believe this occurred.
1.5 As the Applicant’s former migration agent was not at the interview they did not provide supporting country information in post-interview submissions. The Delegate relied heavily on country information in concluding that she did not believe that the Applicant’s brother was kidnapped. The Applicant should be afforded the opportunity to provide country information which supports his claims.
Information not previously known
1.6 The above information was not and could not have been provided to the Delegate because there was no way for the Applicant’s agent to know that the Delegate did not believe his claim that the Applicant’s brother had been kidnapped. This was particularly so because the Applicant’s migration agent was not present at the Interview.
1.7 Furthermore, the information is credible personal information. The information is contemporaneous and from reputable sources and relates directly to the Applicant’s brother profile and the claims asserted in the Applicant’s application, in that the Applicant’s brother was kidnapped by the Taliban.
Sections 473DC and 473DD of the Act relevantly provided at the time of the IAA’s decision:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The IAA, after noting at [5] that the four items of country information, which included the PIPS press releases, were “new information” within the meaning of s 473DC(1), continued at [6]-[7]:
[6] In his submissions, the applicant said exceptional circumstances existed to justify his new information being considered as he was not represented by his former agent at the SHEV interview. It was at the SHEV interview that the delegate first learned that the applicant had discovered his brother was not dead but had been kidnapped by the Taliban. This information was used against the applicant in the delegate’s decision as she did not believe this occurred. As the former agent was not at the SHEV interview, they did not provide supporting country information in post-interview submissions. The delegate relied heavily on country information in concluding that she did not believe that the applicant’s brother was kidnapped. The applicant should be afforded the opportunity to provide country information which supports his claims. The applicant submitted the new information was not and could not have been provided to the delegate because there was no way for the applicant’s former agent to know that the delegate did not believe his claim that his brother had been kidnapped, particularly as the agent was not present at the interview. The applicant also submitted the new information is credible personal information. It is contemporaneous and from reputable sources and relates directly to the applicant’s brother profile and the applicant’s asserted claims, in that his brother was kidnapped by the Taliban. This new information would have affected the consideration of the applicant’s claims because a key determinative factor in the delegate’s decision was that she did not believe the applicant was a person of interest to the Taliban. This was because the delegate did not believe the applicant’s brother had been kidnapped and imprisoned by the Taliban due to the country information the delegate had located. Accordingly, the new information would have affected the consideration of the applicant’s claims.
[7] The new information all pre-dates the delegate’s decision. The new information is country information and not personal information. Although the applicant was not represented at the SHEV interview [18 February 2021], that is not an uncommon situation. Near the start of the SHEV interview the delegate confirmed with the applicant his former agent was not going to attend and he was fine to proceed with the interview. The delegate indicated to the applicant that he needed to raise all his claims for protection and provide evidence in support of those [claims], and if the application was refused he may not have another chance to provide further information to support his claims or raise new claims. Additionally, at the SHEV interview the delegate mentioned a number of concerns she had which included his evidence in his 2017 statement that his brother had been killed in the 2011 attack and his correction at the interview that his brother had been captured and returned from the Taliban; in that regard she also noted information she had that he had sent money to someone with his brother’s name. The applicant, through his former agent, provided post-SHEV interview submissions, a further statement, and further information including videos, photos and country information. Evidently the applicant discussed at least some of the issues from the SHEV interview with his former agent, as the former agent’s post-SHEV interview material included photos and an ID card in relation to the disabled person, with the same name as his brother, to whom the applicant said he sent money to in Pakistan. The RRT, USDOS and Landinfo material is referenced in the submissions as country information that supports the occurrence of kidnappings in Balochistan and the use of the Taliban of forced recruitment including by way of abductions, to support the applicant’s claim that his brother was kidnapped by the Taliban in 2011. Although that information suggests abductions and forced recruitment took place, the mere existence of such incidents does not corroborate the applicant’s claims that his brother was kidnapped by the Taliban. The delegate did refer in her decision to the applicant’s claims about him and his brother being subject to targeted attacks by the Taliban in 2011 not being corroborated by country information. However, the delegate was referring to information from the South Asia Terrorism Portal (SATP) in relation to the attacks said to have occurred in 2011 in Balochistan and her view that none of the listed attacks corroborated the applicant’s claims. The PIPS articles are referenced in the submissions as country information in support of the proposition that the security situation in the applicant’s home area of Balochistan is continually fluctuating. However, based on the country information she considered, which included the PIPS 2019 security report, the delegate also accepted that the security situation in Quetta is volatile and that Taliban attacks do occur in Balochistan. I am not satisfied that the RRT, USDOS, Landinfo and PIPS material may have affected consideration of the applicant’s claims. The applicant has not satisfied me as to the matters in s.473DD(b)(i) or (ii) for this material. I am also not satisfied that there are exceptional circumstances to justify considering this new country information.
(footnotes omitted)
Consideration of applicant’s submissions
The single contention in the applicant’s written submission was that the PIPS press releases “post-dated the delegate’s decision” (AS [5]), “the IAA failed to recognise that the [PIPS press releases] post-dated the delegate’s decision” (AS [7]), “the IAA did not consider the obvious fact that these articles post-dated the delegate’s decision” (AS [9]) and, “in failing to recognise this issue, the IAA erred” (AS [10]) (Post-Dated Contention). However, at the commencement of the hearing in this Court on 12 June 2025, Mr Aleksov accepted that the PIPS press releases dated 7 February 2020, 5 June 2020 and 3 January 2021 pre-dated the Delegate’s decision dated 8 March 2021. Mr Aleksov appropriately abandoned the Post-Dated Contention.
Mr Aleksov then made three fresh contentions in oral submissions which were not raised in his written submission, but which fell within the ground in the Amended Application.
The first contention was as follows (Relevance Contention):
(a)In circumstances where the applicant claimed to face a real chance of serious harm because of the general security situation in Quetta, the PIPS press releases contained information about violent incidents and terrorist attacks in Balochistan, and so were relevant in assessing whether the applicant’s fear was well-founded.
(b)The most recent country information reports on which the Delegate relied in assessing the activities of the Taliban and other militant groups in Balochistan were dated between January 2019 and January 2020 - see footnotes 24, 25, 29 and 30 in the Delegate’s decision. Each of the PIPS press releases were more recent country information reports than those considered by the Delegate. Therefore, they provided more up to date information concerning the nature and frequency of violent incidents and terrorist attacks by the Taliban and other militant groups in Balochistan.
(c)The IAA erred by not considering whether, for this reason, the PIPS press releases met the requirements of s 473DD.
For the following reasons, this contention does not identify a jurisdictional error in the IAA’s decision.
First, as Mr Aleksov acknowledged during the hearing on 12 June 2025, Mr Aleksov’s explanation to the Court of the manner in which the PIPS press releases met the requirements of s 473DD was significantly different to the explanation by the applicant’s representative to the IAA in the April 2021 Submission. The IAA at [6]-[7] considered, and was not persuaded by, the explanation in the April 2021 Submission. The Relevance Contention asks the Court to find that the IAA erred by not considering a submission never made to the IAA. Where an applicant has a representative, consistent with the analysis in cases such as Plaintiff M1/2021 v Minister for Home Affairs [2021] HCA 17; 275 CLR 582 (Plaintiff M1/2021) at [25] (“The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”), SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]-[81], and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (fourth dot point) and [30], the circumstances in which the IAA might err in not considering a submission never made are rare. Mr Aleksov’s explanation of the manner in which the PIPS press releases met the requirements of s 473DD neither was articulated by the applicant’s representative to the IAA nor, with reference to Plaintiff M1/2021 at [25], “clearly [arose] on the materials before” the IAA. The IAA did not err by not considering Mr Aleksov’s explanation of the manner in which the PIPS press releases met the requirements of s 473DD – set out in paragraph 50 above.
Second, a matter relevant to whether or not the IAA erred at [6]-[7] in assessing the PIPS press releases against s 473DD is whether the press releases contained information more favourable to the applicant’s claim for protection than the findings of the Delegate. If the press releases did not contain more favourable information, first, this reduces (if not eliminates) force in Mr Aleksov’s contention that the IAA was required to consider his explanation of the manner in which the press releases met the requirements of s 473DD. Second, the applicant cannot overcome the IAA’s finding at [7] that it was “not satisfied that the … PIPS material may have affected consideration of the applicant’s claims”.
The Delegate made the following findings:
Country information notes that the Taliban do have an active presence in Baluchistan and remain a major actor of instability. (CB 237.3)
Country information indicates that the security situation in Quetta is volatile. However, country information also indicates that the violence in Quetta is largely directed against the government and security forces or Shia Hazaras. (CB 239.5)
During the hearing on 12 June 2025, I asked Mr Aleksov to identify information in the PIPS press releases more favourable to the applicant’s claim for protection than these findings. Mr Aleksov referred to two clauses in the press release dated 3 January 2021 at CB 373-374. The first clause was:
While six Baloch insurgent groups were found active in Balochistan in 2020 but the Balochistan Liberation Army and Baloch Liberation Front were the two major groups …
Mr Aleksov explained that this clause indicated there were new insurgent groups active in Balochistan in 2020. However, first, since Mr Aleksov did not take the Court through the country information considered by the Delegate, I am not persuaded that this clause identified new insurgent groups. Second, even if this clause identified new insurgent groups active in Balochistan in 2020, this is not more favourable to the applicant than the findings of the Delegate set out in the above paragraph.
The second clause was:
Despite this statistical decline in the incidents of terrorism, the PIPS report underlined that the more severe challenge of religious extremism continued to manifest in 2020 such as … growing individual/mob attacks on minority communities and their worship places …”
Mr Aleksov’s point appeared to be that the reference to “growing individual/mob attacks” supported a conclusion that the security situation in Quetta was worsening. I do not agree. Further, Mr Aleksov’s reliance on this clause involved cherry-picking. For example, other clauses of the same press release referred to “a decline of over 36 percent from the year before” in respect of terrorist attacks and a “statistical decline in the incidents of terrorism”.
In summary, I am not persuaded that the press releases contained information more favourable to the applicant’s claim for protection than the findings of the Delegate. This further undermines Mr Aleksov’s submission that the IAA erred by not considering Mr Aleksov’s explanation of the manner in which the PIPS press releases met the requirements of s 473DD – set out in paragraph 50 above.
A second contention by Mr Aleksov was that the IAA misapplied s 473DD(b)(i) in the following manner. Section 473DD(b)(i) required the IAA to consider, among other matters, whether the new information “could not have been provided to the” Delegate before the Delegate made her decision on 8 March 2021. Mr Aleksov contended that, because the IAA did not expressly write that the PIPS press releases could not have been provided to the Delegate before 8 March 2021, it followed that the IAA did not consider or make a finding concerning this issue. I disagree. The IAA found that “the applicant has not satisfied me as to the matters in s 473DD(b)(i)”. The IAA’s reasons for decision at [7] indicate that the IAA was aware of the text of s 473DD(b)(i). For example, the IAA discussed the opportunities available to the applicant to provide the country information to the delegate before the delegate made a decision. I am not persuaded that the IAA misapplied s 473DD(b)(i) in the manner proposed by Mr Aleksov.
A third contention by Mr Aleksov was that the IAA misunderstood s 473DD(b)(i) because the IAA did not recognise that the applicant’s representative only provided the PIPS press releases to the IAA because the Delegate had referred to older PIPS press releases at footnote 24 of her decision. First, I am not persuaded that the applicant’s representative only provided the PIPS press releases to the IAA because the Delegate had referred to older PIPS press releases at footnote 24 of her decision. Second, even if I was persuaded of this matter, I do not understand how this resulted in the IAA misunderstanding s 473DD(b)(i). I am not persuaded that the IAA misunderstood s 473DD(b)(i) in the manner proposed by Mr Aleksov.
For the above reasons, the ground in the Amended Application does not identify a jurisdictional error in the IAA’s decision. It follows that the Amended Application must be dismissed.
COSTS
Costs of substantive proceeding
Mr Maynard sought an order that the applicant pay the first respondent’s costs in the sum of $8,000 which was less than the first respondent’s solicitor/client costs. Mr Aleksov did not object to this amount. I consider the amount sought by the first respondent is reasonable. Subject to considering whether an order for costs should also be made against the Applicant’s Lawyer in respect of the listing on 29 May 2025, I will make this order.
Whether order for costs should be made against Applicant’s Lawyer
Section 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides:
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding … in a way that is consistent with the overarching purpose.
(2) A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) … on the party's behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
…
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
Rule 22.06(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (2021 Rules) provides:
(1) The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
In Mitry Lawyers v Barnden [2014] FCA 918 (Mitry) Wigney J discussed principles applicable to r 21.07 of the Federal Circuit Court Rules 2001 (which is almost identical to r 22.06 of the 2021 Rules). His Honour, after stating at [39] that “the power to order costs against a lawyer is a power that must be exercised with care and discretion and only in clear cases”, at [42] summarised relevant principles concerning the exercise of the power as follows:
The relevant principles emerge from three decisions of this Court: the judgment of Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart [1998] FCA 806; (1998) 156 ALR 169; and two Full Court decisions; Levick; and Macteldir v Roskov [2007] FCAFC 49. The principles may be summarised as follows:
1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer.
2. Something which involves “unreasonable conduct” is required.
3. What constitutes unreasonable conduct will depend on the circumstances of the particular case.
4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success.
5. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice.
6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless.
7. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.
In paragraphs 14-29 above I set out relevant events leading up to the hearing on 12 June 2025.
At the hearing on 12 June 2025, Mr Aleksov stated that he did not have instructions to appear or make submissions for the Applicant’s Lawyer arising from the Show Cause Order. He added that he could not appear or make submissions for the Applicant’s Lawyer in respect of the issue since this would put him in a position of conflict between his duties to the applicant and duties to the Applicant’s Lawyer. He also added that the Applicant’s Lawyer had informed him earlier in the day that the lawyer was unable to attend the hearing because he was attending a funeral.
On the one hand, it is not satisfactory that the Applicant’s Lawyer did not:
(a)attend the listing on 29 May 2025; or
(b)in response to the Show Cause Order, attend the hearing on 12 June 2025 or directly communicate to the Court why he could not attend the hearing.
On the other hand, I consider that the conduct of the Applicant’s Lawyer did not “involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice”: Mitry at [42(5)]. Among other reasons, it appears from the (incomplete) information available to me that the Applicant’s Lawyer, having briefed counsel experienced in migration matters in a timely manner by 8 May 2025, was waiting in the second half of May for counsel to prepare an amended application and written submission. Further, a “consideration in play” “militating … against” (Yu v Cao [2015] NSWCA 276; 91 NSWLR 190 at [139], quoted in Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456 at [27]) the making of a personal costs order is that the Applicant’s Lawyer provided the Amended Application and applicant’s written submission to the first respondent’s solicitor in time for the first respondent’s lawyers to respond to those materials in its written submission lodged on 5 June 2025. This suggests that the Applicant’s Lawyer was endeavouring to comply with procedural orders made by the Court to prepare the proceeding for hearing, although waiting on counsel to prepare or finalise the written materials.
Conclusion
I will order that the applicant pay the first respondent’s costs in the sum of $8,000.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 10 July 2025
0
8
3