EAE18 v Minister for Immigration and Citizenship

Case [2025] FedCFamC2G 1448

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EAE18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1448   

File number(s): SYG 2156 of 2018
Judgment of: JUDGE ZIPSER
Date of judgment: 4 September 2025
Catchwords: MIGRATION – judicial review – decision of Immigration Assessment Authority refusing to grant protection visa – whether Authority failed to consider matters, evidence or claims – whether applicant made claims to Authority which applicant contends in court proceeding Authority did not consider – reason Authority did not refer to matters in statement of reasons was because matters were not material – whether Authority made incorrect finding of fact – application dismissed
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) ss 36(2)(aa), 65, 430(1), 473EA, 476
Cases cited:

Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 424; 164 ALD 258

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1

Navoto v Minister for Home Affairs [2018] FCAFC 135
Division: Division 2 General Federal Law
Number of paragraphs: 55
Date of hearing: 31 July 2025
Place: Parramatta
Counsel for the Applicant: Glenn Fredericks
Solicitor for the Applicant: McCabes Lawyers
Counsel for the Respondents: Greg Johnson
Solicitor for the Respondents: Mills Oakley Lawyers

ORDERS

SYG 2156 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

EAE18

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

4 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs 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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

REASONS FOR JUDGMENT

JUDGE ZIPSER

INTRODUCTION

  1. On 3 August 2018, 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 16 July 2018. 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.

  2. For the reasons that follow, the application is dismissed.

    FACTUAL BACKGROUND

  3. In June 2013, the applicant, a citizen of…

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EAE18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1448
Case
[2025] FedCFamC2G 1448
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought judicial review of a decision by the Immigration Assessment Authority (IAA) to refuse his application for a protection visa. The applicant had arrived in Australia as an unauthorised maritime arrival in June 2013 and applied for a protection visa on 29 November 2016, claiming that he was at risk of harm if returned to Pakistan. The IAA affirmed the delegate's decision to refuse the visa on 16 July 2018. The applicant challenged the IAA's decision on two grounds, contending that the IAA failed to consider material provided to it and made an incorrect finding of fact.

The primary issue for the court was whether the IAA erred in its assessment of the applicant's claims for a protection visa. Specifically, the court needed to determine whether the IAA failed to consider certain material and made an incorrect finding of fact regarding the applicant's claims of being threatened and targeted due to his role as a witness in a political murder trial.

The court found that the IAA did not err in its assessment of the applicant's claims. The court accepted that the IAA was not satisfied that the applicant faced a real chance of harm, based on the evidence provided. The court also found that the IAA did not make an incorrect finding of fact regarding the applicant's claims of being threatened and targeted. The court held that the IAA's decision was based on a proper consideration of the evidence and was not affected by any alleged errors. Therefore, the application for judicial review was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the application is dismissed.FACTUAL BACKGROUND In June 2013, the applicant, a citizen of Pakistan, arrived in Australia as an unauthorised maritime arrival. On 29 November 2016, the applicant applied for a SHEV, claiming to be at risk of harm if returned to Pakistan. The application included a statement of the applicant dated 29 November 2016 setting out his claims (November 2016 Statement). On 9 February 2018, following an interview in January 2018, a delegate of the first respondent made a decision refusing to grant the applicant a SHEV. On 14 February 2018, the applicant’s matter was referred to the IAA for review under Part 7AA of the Act (as it then was). On 16 July 2018, the IAA made a decision affirming the delegate’s decision not to grant the applicant a SHEV.IAA’S DECISION The IAA at [7] summarised the applicant’s claims for protection. The IAA at [11]-[22] considered the applicant’s claim to have witnessed the shooting of a friend in 2011 and related claims concerning threats against him when he agreed to be a witness for the prosecution against the men accused of, and charged with, the shooting. The IAA accepted that the applicant witnessed the shooting, that he was a witness for the prosecution and that, prior to and during the trial, he was threatened. However, the IAA at [13]-[18] did not accept the applicant’s claim that he was personally targeted in a shooting, and the IAA at [19] did not accept the applicant’s claim that he was threatened after the trial at which he had initially agreed to give evidence. As explained by the IAA at [19], the purpose of the threats against the applicant was “to intimidate him and prevent him giving evidence” and “as he did not attend the final trial and as the men were acquitted, this purpose has been achieved and there is no reason for the men or their associates to threaten the applicant now”. The IAA at [20] was “not satisfied that the applicant faces a real chance of harm from the accused men, or from any organisation or other person for any reason linked to the shooting of Ibrahim Brohi”, who was the applicant’s friend. The IAA at [23]–[32] considered the applicant’s claim to fear harm from extremists and generalised violence. The IAA at [27] found that the chance of the applicant being harmed by generalised violence or as a bystander was remote. The IAA at [32] was “not satisfied that the applicant faces a real chance of harm at the hands of any extremist or religious group, or from extremist, religious or generalised violence should he return to Pakistan”. The IAA at [33] was “not satisfied that [the applicant] will face a real chance of harm because of any anti-government opinion he holds”. The IAA at [34]–[39] considered the applicant’s claims to fear harm as a returned asylum seeker. The IAA at [39] was “not satisfied that the applicant faces a real chance of harm for being a returned asylum-seeker or a returned asylum-seeker who has spent time in the West”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 16 July 2018, the IAA made a decision affirming the delegate’s decision not to grant the applicant a SHEV.IAA’S DECISION The IAA at [7] summarised the applicant’s claims for protection. The IAA at [11]-[22] considered the applicant’s claim to have witnessed the shooting of a friend in 2011 and related claims concerning threats against him when he agreed to be a witness for the prosecution against the men accused of, and charged with, the shooting. The IAA accepted that the applicant witnessed the shooting, that he was a witness for the prosecution and that, prior to and during the trial, he was threatened. However, the IAA at [13]-[18] did not accept the applicant’s claim that he was personally targeted in a shooting, and the IAA at [19] did not accept the applicant’s claim that he was threatened after the trial at which he had initially agreed to give evidence. As explained by the IAA at [19], the purpose of the threats against the applicant was “to intimidate him and prevent him giving evidence” and “as he did not attend the final trial and as the men were acquitted, this purpose has been achieved and there is no reason for the men or their associates to threaten the applicant now”. The IAA at [20] was “not satisfied that the applicant faces a real chance of harm from the accused men, or from any organisation or other person for any reason linked to the shooting of Ibrahim Brohi”, who was the applicant’s friend. The IAA at [23]–[32] considered the applicant’s claim to fear harm from extremists and generalised violence. The IAA at [27] found that the chance of the applicant being harmed by generalised violence or as a bystander was remote. The IAA at [32] was “not satisfied that the applicant faces a real chance of harm at the hands of any extremist or religious group, or from extremist, religious or generalised violence should he return to Pakistan”. The IAA at [33] was “not satisfied that [the applicant] will face a real chance of harm because of any anti-government opinion he holds”. The IAA at [34]–[39] considered the applicant’s claims to fear harm as a returned asylum seeker. The IAA at [39] was “not satisfied that the applicant faces a real chance of harm for being a returned asylum-seeker or a returned asylum-seeker who has spent time in the West”. The IAA at [40] was not satisfied the applicant faced a real chance of harm for any of the reasons claimed, and at [41] concluded that the applicant did not meet the criterion for a protection visa in s 36(2)(a) of the Act. The IAA at [42]-[45] considered whether the applicant met the complementary protection criterion in s 36(2)(aa) of the Act. The IAA at [45] concluded that the applicant did not meet s 36(2)(aa).PROCEDURAL HISTORYJudicial review application and steps up to hearing on 31 July 2025 On 3 August 2018, the applicant filed in this Court an application for judicial review of the IAA’s decision. On 26 March 2019, the applicant filed an amended application (Amended Application) which contained the following grounds (as written):1.I don’t believe my claims for refugee status were correctly considered.2.In making the decision of 16 July 2018 (Decision), the Second Respondent (the IAA) failed to exercise its statutory function pursuant to section 473DB of the Migration Act 1958 (Cth) (the Act) when considering the material provided to it under section 473CB of the Act.Particularsa. The IAA found that the Applicant’s fear was not well-founded and it was not satisfied that the Applicant faced a real chance of harm as a member of a particular social group, namely as a targeted witness in a political murder trial (Decision [18]-[22]).b. The IAA accepted that:i.The Applicant witnessed the shooting of Ibrahim Brohi, an activist with the Pakistan People’s Party (Decision [11]);ii.The killing of Mr Brohi was a political killing (Decision [12]);iii.The Applicant was a witness for the prosecution in the trial for the murder of Mr Brohi (Decision [11]); andiv.The Applicant was threatened at the trial for the murder of Mr Brohi (Decision [12]).c. In making the Decision, the IAA failed to consider certain matters in the material provided to it under section 473CB of the Act, namely:i.The Applicant is the son of a former politician in Karachi, Pakistan which heightened his profile;ii.The Applicant had received threatening messages by telephone both before and after an incident during which the Applicant was shot at whilst in a vehicle (the shooting incident), and the messages indicated that the Applicant had been personally targeted during the shooting incident;iii.The shooting incident occurred in the context of a police officer connected with the murder trial also being shot by associates of the gunmen; andiv.Before they were ultimately acquitted, the gunmen accused of murdering Mr Brohi were imprisoned for approximately five years, and their capture and imprisonment was partly or wholly attributable to the Applicant’s role as a witness to the murder of Mr Brohi.d. Further, in respect of the matters enumerated at sub-paragraph (c)(iv), the IAA:i.Failed to consider that the acquitted gunmen or their associates might seek revenge against the Applicant for their five year imprisonment; andii.Failed to consider whether the release of the acquitted men increased the chance of harm coming to the Applicant in circumstances where their capture and imprisonment were partly or wholly attributable to the Applicant’s role as a witness to the murder of Mr Brohi. e. Each of the matters referred to in sub-paragraphs (c) and (d) above was important to the Applicant’s claim for protection as a targeted witness in a political murder trial and further or alternatively, each of the matters was an integer of his claim for protection.f. Had the IAA considered the matters referred to in sub-paragraphs (c) and (d) above, either individually or cumulatively, this could have resulted in a finding that the Applicant had been personally targeted by reason of his role as a witness to the murder of Mr Brohi and therefore his fear was well-founded and he faced a real chance of harm as a member of a particular social group.3.The IAA made an incorrect finding of fact in respect of a matter of significance:Particularsa. The IAA found that the Applicant did not claim to have received telephone calls identifying him as a target or threatening him with other similar incidents (being incidents similar to the shooting incident) (Decision [18]).b. Having regard to the totality of the material provided pursuant to section 473CB of the Act including the Applicant’s evidence at the interview with the delegate of the First Respondent, this finding was incorrect as a matter of fact.c. The incorrect finding of fact was a matter of significance because the IAA’s conclusion that the Applicant’s fear was not well-founded and he did not face a real chance of harm was based on the finding that the Applicant had not been personally targeted because of the trial or for any other reason arising from the shooting of Mr Brohi.

Ratio Decidendi

Legal Principle Established

Counsel for both parties made oral submissions which supplemented their written submissions. The submissions are addressed below. CONSIDERATIONIntroduction The two grounds in the Amended Application challenge the manner in which the IAA dealt with the applicant’s claim that he faced a real chance of serious harm arising from:(a)witnessing the shooting of a friend by some men; and(b)agreeing to be a witness for the prosecution in the trial against the men. To appreciate the applicant’s contentions in this Court, it is useful to understand the applicant’s claims before the IAA and the manner in which the IAA dealt with the claims. The applicant stated in the November 2016 Statement: (CB 80-81)10.Around 2011 during Ramzan period, I was heading to a shop near my friend, Ibrahim Brohi’s home (Gulshan Iqbal in Karachi) on my motorcycle. As I approached the shop, I had to u turn in order to park the motorcycle. While I was u-turning, I saw two gunmen about 10 to 15 metres from where my friend was sitting shooting at my friend from a white Suzuki sedan.11.I saw that the Suzuki sedan had five people in the vehicle but only two of them had guns. The vehicle stopped and one of the men with guns got out of the vehicle and fired several shots into my friend’s body. Two of my friend’s employees and Ibrahim’s cousin were also killed.…14.Ibrahim died in hospital six days later. Ibrahim’s father wanted me to give evidence to the police against the ANP gunman involved in his son’s shooting and I agreed to do so. I went to the local police station in Gulshan Iqbal and made a report about the shooting.15.The police started looking for the responsible ANP members and managed to catch them one by one. They were all arrested and confessed to killing Ibrahim and the other people. I was asked to attend the police station to identity the shooters around one week after the shooting.16.I was asked to provide evidence at court against the shooters. The court hearing was a few days later and I attended the court and provided evidence against the ANP gunman. I gave evidence on two different court dates; the second hearing was a week after the first hearing.…18.After the second hearing, I was in the corridor and one of the ANP gunman, Sami, threatened to kill me by making gestures that suggested that I was going to get killed.19.Shortly after this I started receiving private number phone calls telling me that I was not to attend the final hearing or I will get killed. One day while I was in Clifton going to attend a food market. After I parked the car, I was shot at from behind by unknown gunmen. They missed me but some bullets hit the back of my car and broke the rear windshield.20.I was so frightened for my life that I decided not to go to the final hearing. I received calls after the car park shooting saying that I was lucky and that next time I will not be so lucky.21.I decided that it was no longer safe to stay and in Pakistan and started to make arrangements to leave the country. I eventually left Pakistan around 30 April 2013.