BWG20 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1169
•30 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWG20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1169
File number(s): MLG 1432 of 2020 Judgment of: JUDGE FARY Date of judgment: 30 July 2025 Catchwords: MIGRATION – application for Protection (Class XA) (Subclass 866) visa – Administrative Review Tribunal not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s 36(a) or (aa) and affirmed Delegate’s decision to refuse the application for the Protection (Class XA) (Subclass 866) visa – application for judicial review – no meaningful ground of jurisdictional error asserted – no jurisdictional error established – application for judicial review dismissed. Legislation: Australian Constitution s 75(v)
Migration Act 1958 (Cth) s 5H(1)(a), s 5J(2), s 36, s 47(1), s 65(2), s 116, s 474, s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Div 1 Pt 2 Sch 2
Migration Regulations 1994 (Cth) cll 866.1 to 866.6
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12
Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405
MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Oshlack v Richmond River Council (1998) 193 CLR 72
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425
Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227
Division: Division 2 General Federal Law Number of paragraphs: 138 Date of last submission/s: 22 July 2025 Date of hearing: 22 July 2025 Place: Melbourne Applicant: In person Counsel for the First Respondent: Mr Crock Solicitor for the First Respondent: Mr McDonald, Clayton Utz Solicitor for the Second Respondent: Submitting notice, save as to costs ORDERS
MLG 1432 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWG20
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
30 JULY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the proceeding, including any reserved costs, fixed in the sum of $8,371.30.
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 FARY
INTRODUCTION
By way of Application filed on 1 May 2020, the applicant (Applicant) seeks judicial review of the decision of the Administrative Review Tribunal (Tribunal) (formerly the Administrative Appeals Tribunal) dated 17 April 2020 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Class XA) (Subclass 866) visa (Visa) on the basis that the Applicant had not satisfied the Delegate that he is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) of the Migration Act.
The hearing of the Application took place at the Melbourne Registry of the Court on 22 July 2025 (Hearing). The Minister was represented by a barrister. The Applicant was self-represented. While an interpreter was present (by video-link) at the Hearing, the Applicant conducted the Hearing without the assistance of the interpreter. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 22 July 2025, Order 4.
ISSUE IN DISPUTE
The issue in dispute is whether the Tribunal made a jurisdictional error in determining that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act or that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
BACKGROUND
The Applicant is a citizen of Pakistan.
On 27 May 2013, the Applicant was granted a Student (Temporary) (Class TU) (Subclass 573) visa and subsequently arrived in Australia on 16 June 2013 (first visa).[2]
[2] Court Book (CB) 414.
On 23 October 2014, the Applicant departed Australia.[3]
[3] CB 414.
On 7 November 2014, the Applicant received a Notice of Intention to Consider Cancellation (NOICC) while he was offshore.[4]
[4] CB 167.
On 8 November 2014, the Applicant arrived back in Australia.[5]
[5] CB 415.
On 1 December 2014, the Applicant applied for the Visa, the subject of these proceedings. The Applicant claimed that he holds a well-founded fear of persecution in Pakistan on the basis of his religious beliefs as a Sunni Muslim.[6]
[6] CB 61.
On 19 January 2015, the Applicant’s first visa was cancelled under s 116 of the Migration Act.[7]
[7] CB 167.
On 27 January 2017, the Applicant was invited by a Delegate of the Minister to attend an interview scheduled for 23 February 2017.[8] The Applicant attended the interview on the scheduled date with the assistance of an interpreter.[9]
[8] CB 116.
[9] CB 127-159.
On 24 February 2017, a Delegate of the Minister refused to grant the Applicant the Visa on the basis that they were not satisfied that the Applicant met s 36(2)(a) or s 36(2)(aa) of the Migration Act (Delegate’s Decision).[10]
[10] CB 162.
On 6 March 2017, the Applicant sought review of the Delegate’s Decision before the Tribunal (Review Application).[11]
[11] CB 176.
On 7 March 2017, the Tribunal wrote to the Applicant acknowledging receipt of the Review Application.[12]
[12] CB 192.
On 2 July 2019, the Tribunal wrote to the Applicant’s representative (Applicant’s Representative) confirming that the Applicant’s matter was allocated to the Tribunal.[13]
[13] CB 203.
On 18 July 2019, the Applicant’s Representative wrote back advising that they no longer acted for the Applicant.[14]
[14] CB 204.
On 19 July 2019, the Tribunal responded to the Applicant’s Representative and advised that correspondence would continue to be sent to them until the Applicant advised otherwise.[15] The Tribunal also wrote to the Applicant on date same to confirm the Applicant’s authorised representative.[16]
[15] CB 206.
[16] CB 208.
On 18 July 2019, the Applicant’s Representative provided a signed change of contact details form to the Tribunal.[17]
[17] CB 214.
On 22 August 2019, the Tribunal invited the Applicant to attend a hearing on 11 September 2019.[18]
[18] CB 219.
On 4 September 2019, the Tribunal wrote to the Applicant and confirmed that the hearing was to be rescheduled for 25 September 2019 following a request made by the Applicant over telephone on date same.[19]
[19] CB 229.
On 5 September 2019, the Applicant wrote to the Tribunal and requested that the hearing be postponed as he had appointed a new representative who needed time to prepare.[20] The Tribunal wrote back on date same and allowed for the hearing to be rescheduled until 8 October 2019.[21]
[20] CB 234.
[21] CB 235.
On 8 October 2019, the Tribunal Registry informed the Tribunal Member that the Applicant had failed to appear at the scheduled time of 1:00pm. The Member made an initial dismissal of the Review Application for non-appearance.[22]
[22] CB 413.
On 11 October 2019, the Applicant’s Representative wrote to the Tribunal requesting reinstatement of the Review Application with submissions attached.[23] The Applicant claimed that he had attended at the correct time and date but had been misdirected by the Tribunal Registry.
[23] CB 254.
On 14 October 2019, the Tribunal agreed to re-instate the Review Application on the basis of substantial evidence before it that the Applicant had in fact attended the Tribunal’s office at the scheduled time.[24]
[24] CB 259.
On 21 October 2019, the Applicant was invited to attend a second hearing before the Tribunal on 28 November 2019.[25]
[25] CB 325.
On 12 November 2019, the Applicant’s Representative wrote to the Tribunal dated 11 November 2019, requesting that the Member recuse himself and the matter be referred to a different member for the upcoming hearing.[26]
[26] CB 334-335.
On 19 November 2019, the Tribunal informed the Applicant there were no valid grounds for the recusal and refused the request.[27] In the correspondence, the Tribunal attached a corrigendum to the reinstatement decision made on 14 October 2019.[28]
[27] CB 337.
[28] CB 340.
On 28 November 2019, the Applicant attended the scheduled hearing on his own behalf and with the assistance of an interpreter.[29]
[29] CB 343.
On 17 April 2020, the Applicant was notified of the Tribunal’s Decision not to grant the Visa and upheld the Delegate’s Decision.[30]
[30] CB 410.
TRIBUNAL’S DECISION
The Tribunal’s Decision is at 412 to 462 of the Court Book.
The Tribunal first outlined the relevant law to the matter and the purpose of the Tribunal in relation to the Review Application: Tribunal’s Decision [1] to [9].
The Tribunal noted the procedural circumstances around the initial dismissal of the Review Application for non-appearance and the Applicant’s request that the Member be recused on the basis of prejudice to his Review Application at [16] to [28]. The Member refused the recusal request on the basis that there were no grounds supporting the presence of apprehended or actual bias by the Member.
The Tribunal noted that the central issue was whether the Applicant holds a well-founded fear of being persecuted in Pakistan and whether he would suffer significant harm if he were to return.[31]
[31] CB 413.
The Tribunal placed significant weight on DFAT country information, written and oral submissions by the Applicant, and the Applicant’s circumstances in coming to its decision. Although the Tribunal acknowledged that sectarian violence remains a serious problem in Pakistan, the Tribunal found that the risks faced by the Applicant are considerably low.[32] The Tribunal raised concerns around the credibility of the Applicant’s claims. On the evidence before it, the Tribunal found that the Applicant was not at risk of persecution or significant harm from family members or religious extremists upon returning to Pakistan.[33]
[32] CB 460.
[33] CB 461.
The Tribunal was not satisfied on the basis of its factual findings that the Applicant was a refugee in accordance with s 5H(1) and that his claims warranted protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act.[34]
[34] CB 462.
PROCEEDINGS IN THIS COURT
On 1 May 2020, the Application was filed in this Court, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 28 May 2024, Orders were made by Registrar Downing of this Court for the Applicant to file: written submissions, any amended application with proper particulars and any additional evidence. For the Respondent to file: written submissions and any additional evidence. That the Respondent serve on the Applicant a copy of the Court Book by no later than two weeks from the date of the Orders.
This matter was heard on 22 July 2025 for a Final Hearing before me.
The Applicant relied upon the following documents:
(a)The Application filed 1 May 2020;
(b)The Affidavit of the Applicant affirmed and filed 1 May 2020 (Applicant’s Affidavit); and
(c)The Applicant’s Submissions filed 20 June 2025.
(d)The Applicant’s Reply Submissions filed 22 July 2025.
The Minister relied upon:
(a)The Response, filed 20 May 2020;
(b)The Minister’s Outline of Submissions filed 8 July 2025; and
(c)List of Authorities filed 21 July 2025.
Both parties relied on the Court Book.
The Application contains the following grounds of review (Grounds of Review):
1. The decision of the AAT is affected by Actual and Apprehended bias. (Ground 1).
Particulars
a. That the Applicant and his Solicitor arrived at the Administrative Appeals Tribunal, situate at 15 William Street, Melbourne and presented themselves at the reception counter of the AAT on Level 4 at approximately 12.50pm and the Solicitor spoke to the male officer at the counter.
b. The male officer at the counter requested that the parties take a seat and both the Applicant and his Solicitor took a seat and waited to be told which room to attend.
c. The Applicant then again approached the reception counter and made enquires as to why they had not been called for their hearing, as now approximately 30 minutes had elapsed.
d. The female officer at the reception counter then checked the applicant's name and she gave them a ticket and requested that the Applicant and his Solicitor attend upon the 5th floor, Room 5.08.
e. The parties then went upstairs to Level 5 and went to room 5.8 and waited nearly 15 minutes. However, no one was there.
f. At approximately 1.40 - 1.45pm, the parties decided to return to the reception counter on Level 4, where they made further enquires as to what was happening to the scheduled hearing listed for 1 pm.
g. On arriving at level 4, two female tribunal officers approached the Applicant and his Solicitor and they discussed the issue of the hearing and what was happening. Both parties were then advised that the Tribunal member who was presiding over the Applicant's case was not in the building and had gone to lunch, as they had tried to contact the member but were unsuccessful.
h. The parties then waited for another 10-20 minutes and the female tribunal officer returned and she wanted to check the Solicitor's file in relation to this matter and the Solicitor obliged and showed her the file. The Solicitor was accused by one of the female tribunal officers of not filing an appointment of representative, to which he showed her a copy of the said form which had been sent via registered post.
i. The parties were then requested to attend the reception counter on Level 4 which they did.
j. That at no stage were the parties ever provided with any explanation, as to why the Applicant's case was not heard at 1 pm. By this stage both the Applicant and his Solicitor were very upset, given they had not been provided with any reasons as to why the Applicant's hearing had not proceeded and to hear that the member had left the building.
k. That upon returning to the offices of his Solicitor, his Solicitor received a letter via e mail from the AAT stating that his application for a Protection visa had been dismissed on the grounds that the Applicant had failed to attend for his scheduled hearing.
l. A letter of complaint was immediately sent to the AAT and in that letter it was stated the applicant will also be making an official complaint with regards the procedures followed by the Administrative Appeals Tribunal reception counter which were negligent and bordering on incompetent.
m. The letter also stated that a rehearing should be granted, but before a different member.
n. That request was refused and the applicant was notified that he should appear on 28 November 2019, before the same member.
o. That given the letter of complaint which was written by his Solicitor, the Applicant appeared before the tribunal without his legal representative.
p. Upon his appearance on 28 November 2019, the Applicant again repeated his request that a new member hear his case on the grounds of prejudice and gave his layman's reasons as to why.
q. The Applicant is of the belief that his criticism of the procedure on the day, including of the said member, could have impacted on his mindset and therefore his decision.
2. The Decision of the AAT is affected by jurisdictional error (Ground 2).
Particulars
a. The tribunal was required to consider if the applicant had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Pakistan. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was far fetched and then failed to properly address the issue of his fear of persecution from anti Sunni extremist groups and also from Shia Muslims, especially, because of his decision to convert from Shia to Sunni which is supported by Country Information it cites in its decision which increases his risk factors.
b. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s36(2)(aa), the decision maker has erred , by disregarding the FIR/police reports when coming to its decision.
(words in bold added otherwise as written).
APPLICANT’S SUBMISSIONS
The Applicant submits that the Tribunal’s Decision was affected by actual or apprehended bias making it a decision affected by jurisdictional error.
The Applicant contends, in applying the law to the circumstances, that the Member was affected by apprehended bias and was tainted in that “he was committed to an outcome and in doing so disregarded the facts that were put before him to recuse himself”.[35]The Applicant alleges that:[36]:
At no stage were the parties ever provided with any explanation, as to why the Applicant's case was not heard at 1 pm. By this stage both the Applicant and his Solicitor were very upset, given they had not been provided with any reasons as to why the Applicant's hearing had not proceeded and to hear that the member had left the building.
[35] Applicant’s submissions at [15].
[36] Applicant’s submissions at [13].
The Applicant filed an “outline” of submissions in reply in which the Applicant responded to the Minister’s written submissions in detail.
The Applicant’s reply submissions were made under the following headings:
(a)Introduction;
(b)I Totally Disagree With the AAT Decision of 8 October 2019;
(c)I Believe The Decision Breached Natural Justice;
(d)Applicant Was Not Contacted by the Tribunal;
(e)My Response to First Respondent’s Submissions dated 8 July 2025; and
(f)Relief Sought.
I have considered the contentions that are set out in the Applicant’s reply submissions.
At the Hearing, the Applicant proceeded to make oral submissions in two parts; first, in respect of his “lived experience”; second, in response to the Minister’s submissions dated 8 July 2025. The Applicant also tendered a copy of the transcript of the hearing before the Tribunal.
RESPONDENT’S SUBMISSIONS
The Minister submits that the Tribunal’s Decision was not affected by apprehended bias or jurisdictional error.
Ground 1
By Ground 1, the Applicant alleges actual or apprehended bias on the part of the Member on 8 October 2019, being the date of the scheduled hearing before the Tribunal.
The outline of events as advanced by the Applicant is not disputed. However, the Minister disputes the allegation of actual or apprehended bias and contends that the Applicant has not identified any factor that might have led to the Member deciding the matter other than on its legal and factual merits.
The Minister contends that the mistaken dismissal of the Applicant’s case did not reveal any actual or apprehended bias against the Applicant. It was the result of miscommunication in procedures and promptly rectified a week later with the reinstatement decision.
The Minister submits that there is no evidence that the Applicant’s criticism of the Tribunal’s procedure amounted to criticism of the Member. Even if the Applicant had criticised the Member personally, there is no evidence that the Member was aware of or took note of any personal criticism, nor that it “impacted on his mindset”.
The Minister submits the Applicant’s argument appears to be that criticising a Member for any procedural decision would give the Applicant the right to have that Member disqualified from hearing their application.
The Minister notes that the Applicant’s allegations of apprehension of bias arising out of the Member’s dismissal of the recusal application is untenable, circular and with no basis in authority.
The Minister submits that no reasonable or fair-minded observer could have concluded that the Member might not have brought an impartial mind by reason of pre-judgment of the Applicant’s substantive case.
Ground 2
The Applicant’s second ground raises two sub-grounds alleging jurisdictional error.
The first sub-ground contends that the Tribunal failed to consider a relevant consideration in deciding whether the Applicant had a well-founded fear of persecution or of significant harm due to his religious beliefs.
The Minister submits that the Tribunal’s Decision in respect of the above, in any event, was not unreasonable and was reached after taking into account all relevant considerations. The Tribunal’s conclusion that the Applicant was at no greater risk than others of his faith was one open to it on the evidence and had a rational basis.
The second sub-ground contends that the Tribunal failed to consider the First Instance Report (FIR) and police reports lodged by the Applicant in deciding whether the Applicant was at real risk of experiencing “significant harm” under s 36(2)(aa).
The Minister submits that the Tribunal did not fail to consider the FIR or police reports and instead considered them in light of DFAT Country Information. The Tribunal’s finding not to give weight to such evidence was legitimate and not unreasonable. .[37]
[37] CB 454-455 [190]-[194].
The Minister submits that concerns around the Applicant’s credibility was a finding open to the Tribunal and no jurisdictional error can be established on this ground.
PRINCIPLES
General
Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.
Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[38]
[38] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (Plaintiff S157/2002) .
“The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.” The Court neither considers the merits of the decision nor remakes it.[39] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[40]
[39] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 Allson CJ, Besanko and O’Callaghan JJ at [17].
[40] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323 (Yusuf)at [82] (per McHugh, Gummow and Hayne JJ).
The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[41] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include “misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness”.[42] Different kinds of error may overlap.[43] The categories are not closed.[44]
[41] Plaintiff S157/2002.
[42] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152 (LPDT) at [3].
[43] Yusuf at [82].
[44] LPDT at [3].
In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a “realistic possibility” that the decision that was made “could” have been different, but for the error.[45] This is to be determined as “a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”.[46] It has been described as an “undemanding” standard.[47]
[45] LPDT at [7].
[46] MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 per Kiefel CJ, Gageler, Keane and Gleeson JJ at [38].
[47] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 per Kiefel CJ, Keane and Gleeson JJ (at [33]).
Protection visas (Subclass 866)
Section 47(1) of the Migration Act requires the Minister to consider a valid application for a visa. Section 65(1) of the Migration Act provides that the Minister is to grant a visa if satisfied that the grant of the visa (as prescribed by the Migration Act or the Regulations) have been satisfied, and to refuse to grant the visa, if not so satisfied.
Section 36(2)(a) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. The term “refugee” is defined by s 5H of the Migration Act in terms that require the applicant for the visa to have a “well-founded fear of persecution”[48] as defined by s 5J(2).
[48] See s 5H(1)(a) of the Migration Act.
Section 36(2)(aa) of the Migration Act provides that a criterion for the visa is that the applicant for the visa is a non‑citizen in Australia (other than a non‑citizen mentioned in s 36(2)(a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.
Sections 36(2)(b) and (c) of the Migration Act provides that a criterion for a protection visa is that that applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.
The criteria that the Applicant was required to satisfy for the grant of a Protection visa (Subclass 866) are set out in cll 866.1 to 866.6 in Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations).
CONSIDERATION
Ground 1
Ground 1 is that:
The decision of the AAT is affected by Actual and Apprehended bias.
The evidence relied upon in support of this Ground is said to be found in both the Tribunal Decision and documents and the transcript of the hearing before the Tribunal.[49] The Minister does not dispute the broad outline of events of 8 October 2019 advanced by the Applicant. Those events are set out in the particulars to Ground 1.
[49] Exhibit 1A.
The Applicant gave the following evidence to the Tribunal of the circumstances of the dismissal and reinstatement of his application that form the basis of his bias application:
Our first hearing for tribunal AAT was 8 October 2019. We arrived 12:45, 15 minutes prior to my date of interview. We reported the reception, and they asked us to sit and wait for the call. We waited for like 25, 30 minutes. At 1:20, I went to the reception and asked the reception why they don't call us yet. They gave us the [token] number, and we went upstairs. After upstairs coming like 1:25, we waited again for 20 minutes outside the room, but nobody came to welcome us. We were about to leave at 1:45. Then I saw two ladies coming out from library and they came to us and ask about the details. I said, I have appointment for 1:00, and they said, you are late. We are already waiting here for like more than one hour, something.
They tried to call the Member, and they said the Member is not reachable. We tried to call the Member, but he's not maybe in the building. That's what they said to us. They asked us to wait furthermore, and we waited again for half an hour, 45 minutes. At 2:30, we went downstairs on the reception because they asked which guy you reported to. We talked to the guy, and we said, we are here well before the time, and we were waiting for our hearing for somebody to call us. They asked us – my lawyer to fill the form for representation again. He filled the form and for me, he just said to us, what do you want to do? Wait furthermore? They still not reached the Member.
The interpreter was not there all the time. So, we were waiting for the interpreter as well. Then they said, we can get back to you as soon as possible to give you a rearranged date. So, we left the building, and I go straight away to my home and my lawyer went to office. After one hour, like 4:00, we received a letter from AAT that my application is refusal. The reason I said we need two different members is because we reported and they know we are there, and they tell us they will reschedule the interview. After one hour, when you get the refusal letter, we thought that the decision is pre-made, and they already made the decision. It's not biased – it’s biased and prejudiced.
For the next time, if the Member is same, because for me it's a life and death situation and for the same Member, I don't think the decision will change next time because first you already made the decision. We don't expect next time for the different one and this is just the procedure.
The Tribunal Member’s explanation for what occurred is set out in the Tribunal’s Decision:
25. As I explained to the applicant, I initially dismissed the matter as I was informed by the Tribunal registry that he had not appeared. I had no indication at the time of initial dismissal (1.20pm on 8 October 2019) that he in fact had been present. If I had been aware I would have not initially dismissed the matter.
26. Upon becoming so aware I reinstated his case and gave him a selection of four dates to choose from in November 2019 for a hearing at his convenience.
On 12 November 2019, the Applicant’s Representative sent a letter to the Tribunal requesting “that the matter go before a different member to [Member] Myers” on the ground of apprehended bias.
The test for actual bias is where a decision-maker has “a state of mind so committed to a conclusion already formed as incapable of alteration, whatever evidence or arguments may be presented.”[50]
[50] Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [72].
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring a fair and impartial mind to the making of the decision.[51] This is sometimes referred to as the double “might” test.[52]
[51] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner).
[52] CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [18]
While the test is the same for judicial and administrative decision makers, its content may differ, depending on the type of decision maker.[53] In the case of administrative proceedings held in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue, and conduct said to give rise to the apprehension, might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.[54]
[53] Hot Holdings Pty Ltd v Creasey (2002) 210 CLR 438 per McHugh J (at 460) and Kirby J (at 480). See Sharma v Minister for Immigration and Border Protection [2017] FCFCA 227 at [21]-[23].
[54] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [27]–[28].
The test for apprehended bias involves a consideration of real and not remote possibilities, as opposed to probabilities.[55]
[55] Ebner at [7].
Its application of the test requires two steps. First, it requires the identification of what it is said might lead the decision maker to decide a case other than on its legal and factual merits. Second, “there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.[56]
[56] Ebner at [8].
I shall start by considering the allegation of ‘apprehended’ bias.
The first matter is to identify what it is said might lead the Tribunal to decide a case other than on its legal and factual merits.
The focus of the Applicant’s complaints concerns the conduct of registry staff and procedure, as opposed to conduct of the Tribunal Member. The relevant conduct of the Tribunal Member was to dismiss the application for non appearance, to reinstate the application, to refuse the Applicant’s application for recusal, and to proceed to hear and determine the application.
One complaint that was directed to the Tribunal Member by the Applicant in his reply submissions was comments made by the Tribunal Member on the hearing of the bias application itself. He contended that the “tone and framing” of the following comments from the Tribunal “suggest a hardened resistance to criticism rather than a neutral judicial mindset”:
Your claim is that psychologically I may be predisposed against you because of frustration, anger, disappointment or similar emotions on the part of the member because of a claim of bias. Whilst this can be a very speculative issue as to how a tribunal member or a decision maker might react to such claims, I can assure you that in administrative law, courts, tribunals, it is a very robust environment. People make lot of claims… And to be blunt about it, that’s part of the course in administrative law and migration or refugee matters.[57]
[57] Transcript p 17.
I can see nothing in the conduct of the Tribunal Member, including the comments set out above, that would lead a fair-minded lay person, properly informed as to the nature of the proceedings, the matters in issue, and conduct said to give rise to the apprehension, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question to be decided. Nor do I accept that those comments demonstrate actual bias, in the sense of a state of mind incapable of alteration.
I reject the Applicant’s contention that “the sequence of miscommunications, errors and omissions by the Tribunal, coupled with the Member’s role in both dismissing and later adjudicating the reinstatement” demonstrates bias.
In my opinion, on the basis of the facts alleged by the Applicant, a fair minded lay person may conclude that there had been a breakdown in the Tribunal processes and communications. Those matters, however unfortunate, were corrected by the rescheduling of the hearing, without impacting on the Tribunal Member’s ability to hear the case impartially and on its merits.
The Applicant complained that “The Member wrongly asserted that the applicant bore the burden of showing a connection between a procedural misstep and biased decision-making” and contended that this was a misstatement of the “controlling principle” in Ebner.
On this issue, it is worth setting out what Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner:
Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Plainly, it is incumbent upon the party moving for recusal, the Applicant in the present case, to identify the matters relied upon as being the basis for the recusal (first step), and to articulate the “logical connection” between those matters and the “feared deviation” (second step).
The allegation of bias is not advanced by reference to the Applicant’s own criticism of the Tribunal. First, the criticism predominantly relates to the Tribunal and registry staff as opposed to the Tribunal Member.[58] Second, there is nothing to suggest that the Tribunal Member responded to this criticism in a way that would give rise to any apprehension of bias, including in the passage that I have set out above.
[58] Compare Transcript at p 17 – where the applicant criticised the Tribunal member.
As to the allegation of ‘actual’ bias, I can see nothing in the evidence to demonstrate that the Tribunal Member had “a state of mind so committed to a conclusion already formed as incapable of alteration, whatever evidence or arguments may be presented”. It goes without saying that neither the adverse ruling on the Applicant’s own bias application, nor the dismissal of the Applicant’s substantive application, demonstrate ‘actual’ or ‘apprehended’ bias.
Finally, I note that section C of the Applicant’s reply submissions had the heading “I believe the decision breached natural justice”. Under this heading, the Applicant contended that:
By choosing to proceed without referring the recusal application to an independent officer or properly addressing the substance of the objections, the Tribunal denied the applicant a fair opportunity to have his concerns heard by an impartial forum. This conduct constituted a breach of the rules of natural justice and undermined the integrity of the hearing process.
I do not consider that there is any substance in the complaint the Tribunal Member heard the bias application himself, as opposed to referring it to another Tribunal Member, circumstances giving rise to what he described as a “self-adjudicating conflict”.[59] The approach whereby the decision maker subject to the claim of bias, then rules on that application is “common practice” in Australian courts because the “judge who is the target to the objection determines the objection because [he or she] constitutes the court”.[60] I see no reason for a different approach in the case of an administrative decision making body such as the Tribunal.
[59] Applicant’s reply submissions at [6(b)].
[60] Mason, "Judicial Disqualification for Bias or Apprehended Bias and the Problem of Appellate Review" (1998) 1 Constitutional Law & Policy Review 21 at 24. Cited in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [30].
I am not satisfied that jurisdictional error is made out by reference to Ground 1.
Ground 2
Ground 2 is that:
The Decision of the AAT is affected by jurisdictional error
Failure to properly address issue of fear of persecution
Particular (a) of Ground 2 is that:
The tribunal was required to consider if the applicant had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Pakistan. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was far fetched and then failed to properly address the issue of his fear of persecution from anti Sunni extremist groups and also from Shia Muslims, especially, because of his decision to convert from Shia to Sunni which is supported by Country Information it cites in its decision which increases his risk factors.
The basis for Ground 2 particular (a) is that the allegation that the Applicant converted from Shia to Sunni; or at least that his father had converted from Shia to Sunni while he was a child.
The Tribunal found that:[61]:
It further finds he is from Punjab, Pakistan. His ethnic group is Punjabi and his religion is Sunni Islam. His mother is from a Sunni family and his late father adopted Sunni practice from the time of going to Saudi Arabia, having come from a Shia background.
[61] CB 455 [196].
The Applicant’s written claims to the Department included the following (at [30]):
His mother is a Sunni and his father is a Sunni convert from the Shia faith. Although he was born in Pakistan, he spent a large portion of his life in Saudi Arabia (from 1997 to 2010). He completed his primary and secondary education in Saudi Arabia which is a Sunni majority country. He was taught to pray in the Sunni way and had always considered himself to be a Sunni. He has three younger brothers who also identify as Sunni.
The Applicant submitted to the Tribunal that (at [36]):
“because of the perception that [he] was a Shia who has renounced his religion, [he] will be treated as someone who has converted to being a Sunni”.
The Applicant summarised his evidence:[62]
while he was taught Sunni practices, he was perceived in his extended family and community as having departed from his ancestral Shia identity, which exposed him to real danger.
[62] Applicant’s reply submissions at [25].
The next element of Ground 2 particular (a) is the allegation that the Tribunal ‘formed a mindset’ that the claimed fear of persecution was ‘farfetched’. This would appear to be a reference to the finding that “the applicant’s case has so many cumulative credibility concerns that I do not accept the credibility and genuineness of the remainder of the claims”.[63]
[63] CB 455-456 [197].
The critical element of Ground 2 particular (a) is the allegation that the Tribunal “then failed to properly address the issue of his fear of persecution from anti Sunni extremist groups and also from Shia Muslims”. After referring to the “cumulative credibility concerns”, the Tribunal proceeded to make express findings negativing each of the express allegations in support of the Applicant’s claimed fear of persecution.[64]
[64] CB 456 [198].
The Tribunal’s Decision makes it clear that it did not overlook the Applicant’s claim that he had converted from Shia to Sunni. In particular, the Tribunal found that:[65]
He will not face significant harm from anti-Sunni extremist groups and also people from the Shia community because of his decision to convert from Shia to Sunni.
[65] CB 456 [198].
Further, the Tribunal found that:[66]
The applicant claimed that he will face significant harm from anti-Sunni extremist groups and also people from the Shia community (his father's family) because of his decision to convert from Shia to Sunni.
Consequently, and having regard to the findings of fact set out above, and considering all evidence cumulatively, the Tribunal has concluded that the risk of significant harm to the applicant from Shia Muslim extremists and/or family members as a consequence of him being a Sunni Muslim who left Shia Islam, is remote and not real. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from Shia extremist or terrorist groups, extremists, militants, or belligerent family members and/or their sympathisers, government forces, criminal elements or anyone else as part of the generalised or sectarian violence, or for any other reason, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
[66] CB 461 [226]-[227].
The allegation of a failure to “properly address” the Applicant’s claimed fear of persecution would appear to be a challenge to the Tribunal’s findings as to the credibility of the Applicant’s evidence and claims, including its reasons for rejecting them.
In Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J rejected (at [67]) a challenge to the Tribunal’s adverse finding concerning the prosecutor’s evidence on the basis that “a finding on credibility… is the function of the primary decision maker par excellence.”.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455–456 [14]–[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
(emphasis added)
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 the Full Federal Court (Griffiths, Perry and Bromwich JJ) summarised the relevant principles[67] at [83]:
[67] Discussed in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496.
a. McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary Judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
b. the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
c. in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
d. without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
•failure to afford procedural fairness;
•reaching a finding without a logical or probative basis;
•unreasonableness; and/or
•other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] 233 FCR 451; [2015] FCA 1089 at [20]–[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]–[42].
In BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 the Full Court stated (at [34]):
…Furthermore, findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error: SZMDS at [132] (Crennan and Bell JJ). This is particularly so where, relevantly, the adverse credibility finding was a critical step in the Tribunal's decision that it was not satisfied that an applicant met the criteria for the grant of a visa: DAO16 at [30(4)] (approving Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [56] (Wigney J)).
(emphasis added)
The Tribunal set out its assessment of the various claims made by the Applicant;[68] and in particular its reasons for rejecting those claims.
[68] CB 450 [160], 454 [189].
The Tribunal’s findings would appear to have a logical and probative basis that is explained in its decision. For example, the Tribunal Decision gives detailed reasons for rejecting the Applicant’s evidence of the “main incident” involving an ambush when he and his family were driving near Islamabad;[69] the Tribunal Decision identifies discrepancies in the Department interview on 23 February 2017 and the evidence given by the Applicant at the hearing;[70] and the Tribunal Decision also sets out detailed reasons for not accepting the Applicant’s evidence as to other threats and harm.[71] These findings and others formed part of the “cumulative credibility concerns” that led the Tribunal to make the specific findings[72] negativing key claims.
[69] CB 450-451 [162]-[167].
[70] CB 451-452 [168]-[179].
[71] CB 453-454 [182]-[188].
[72] CB 456-457 [198].
Ultimately, the question of the Applicant’s credibility was a matter for the Tribunal to resolve as the finder of fact. In the absence of error of the type identified above, it is not for the court to intervene in relation to that matter.
I am not satisfied that jurisdictional error is made out by reference to Ground 2 particular (a).
Disregard of FIR/police reports
Particular (b) of Ground 2 is that:
In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s36(2)(aa), the decision maker has erred, by disregarding the FIR/police reports when coming to its decision.
The FIR and police reports referred to in Ground 2 particular (b) would appear to be the FIR lodged by the Applicant with respect to be one with respect to a violent ambush that the Applicant claimed to have experienced.[73]
[73] CB 88.
The Tribunal summarised the Applicant’s claim:[74]
After some days, he travelled with his mother and brothers to his maternal uncle's home which was 350 kilometres away from his paternal uncle's house. About an hour away from their destination, his car was intercepted by another car. Three men got out of the car and began to verbally abuse him for changing his religion. One of the men then pulled out a gun and pointed it at him. The perpetrators ran away when the occupants of the car travelling behind them came out to find out what was happening. He lodged an FIR (First Information Report) with the authorities the next day, and returned to Australia shortly afterwards.
[74] CB 415 [33].
The Tribunal considered the weight to be attributed to the FIR in its reasons.[75]
[75] CB 454-455 [190]-[194].
After considering DFAT advice, the Tribunal concluded that it “must be very cautious regarding the weight that it ascribes to the documents produced in Pakistan submitted in support of claims for protection”.[76] The Tribunal concluded that the FIR should not be given weight to the claims and found that they did not occur on the basis of its “unfavourable analysis of the Applicant’s claims” and the “issues” with FIR reports produced in Pakistan.
[76] CB 455 [191].
Having regard to the fact that the Tribunal did consider the FIR, but afforded it no weight, the critical question in connection with Ground 2 particular (b) is whether the finding that the FIR should not be given weight is ‘illogical’, ‘irrational’ or ‘unreasonable’ in the sense described in the authorities like Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS).
In SZMDS, Crennan and Bell JJ stated (at [130] and [131]):
In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
(emphasis added)
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J stated (at [52], [53] and [55]):
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22–23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
…
…The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137–138 [151]–[153]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [61]–[62].
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137–138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at 598–599 [83]–[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]–[67].
(emphasis added)
In Minister for Home Affairs v DUA16 (2020) 271 CLR 550, Kiefel CJ, Bell, Keane, Gordon and Edelman JJ stated (at [26]):
A requirement of legal reasonableness in the exercise of a decision-maker's power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high[21]. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn "from the facts and from the matters falling for consideration in the exercise of the statutory power".
(footnotes omitted) (emphasis added)
In Plaintiff S183/2021 v Minister for Home Affairs (2022) 178 ALD 289, Gordon J held (at [43]) that legal unreasonableness may be found “if there is no logical connection between the evidence and the inferences or conclusions drawn”.
The critical basis for rejection of the FIR was the “unfavourable analysis of the Applicant’s claims”.[77] While the Tribunal noted the prevalence of document fraud in Pakistan, it also noted that not every document prepared in Pakistan is fraudulent. Rather than corroborating the Applicant’s ambush claim, the Tribunal looked to its own findings of concern in the Applicant’s claims to reject the FIR. While there is no flaw in this methodology, it does raise questions as to whether there is any flaw in the Tribunal’s findings concerning the credibility of the Applicant. As set out above, I have not identified any jurisdictional error in the Tribunal’s findings concerning the credibility of the Applicant. Further, I can discern no jurisdictional error in the Tribunal’s reliance on those findings in rejecting the FIR.
[77] CB 455 [194].
I am not satisfied that jurisdictional error is made out by reference to Ground 2 particular (b).
Ground 3
The next ground is that:
The Tribunal made a jurisdictional error by failing to consider the applicant’s brother’s asylum card as part of the evidence.
The Tribunal’s Decision provided:[78] :
His brother Saad ended up in Europe. He first went to Hungary ‘for the visa requirements’ – he was allowed to do an accounting course there. He then went to Spain and made a refugee claim there because the rules there are more lenient. So far the Spanish government has not decided his brother’s claim.
[78] CB 423 [102].
This would appear to be an accurate summary of the Applicant’s evidence on this matter that is set out at pp 49 and 50 of the transcript.[79]
[79] Exhibit 1A.
The Applicant’s brother’s asylum card is in evidence.[80] However, given the findings of the Tribunal (at [102]) and which is consistent with the Applicant’s case that the Applicant’s brother had applied of asylum in Spain and had been granted interim residency and a work permit, nothing would appear to turn on the card itself.
[80] Exhibit 2A.
The alleged facts that the Applicant’s brother had been granted interim residency and a work permit provided little to no additional support to the Applicant’s own claim. For this reason, I do not consider that the absence of reference to the brother’s asylum card in the Tribunal’s Decision demonstrates that it made a jurisdictional error by failing to refer to it. To the extent that the brother’s circumstances were relevant to the Tribunal’s Decision, I consider that the findings made at [102] are a sufficient indication that the Tribunal did consider those circumstances in making its decision.
I am not satisfied that jurisdictional error is made out by reference to Ground 3.
CONCLUSION
As the Applicant has not established that the Tribunal made a jurisdictional error, and where I have not otherwise been able to discern jurisdictional error,[81] the Application for review must be dismissed.
[81] Noting the comments of Mortimer J (as her Honour was then) in MZAIB v Minister for Immigration and Border Protection (2015) 238 FCR 158 at [113].
Costs
At the end of each party’s submissions, I invited them to make submissions as to costs in the event that the Application succeeded or was dismissed. In the event that the Application was dismissed, the Minister sought costs in the sum of $8,371.30 being the scale amount.[82] I am satisfied that costs ought to follow the event,[83] and that it is appropriate to make an Order in that amount having regard to the scale and the extent of work undertaken as evidenced by the court file.[84]
[82] See Division 1 of Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Compare Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 12.
[83] Compare Oshlack v Richmond River Council (1998) 193 CLR 72.
[84] Compare Gehlert v Minister for Immigration and Multicultural Affairs (2024) 305 FCR 172.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 30 July 2025
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