EAE18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1448
•4 September 2025
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
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.
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”.
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 HISTORY
Judicial 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.
Particulars
a. 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]); and
iv.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; and
iv.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; and
ii.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:
Particulars
a. 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.
Following a period of inactivity, on 21 May 2025 the registry of the Court notified the parties that the matter was listed for hearing on 31 July 2025.
On 17 July 2025, the applicant filed a written submission (AS).
On 25 July 2025, the first respondent filed a written submission (RS).
Hearing on 31 July 2025
At the hearing in this Court on 31 July 2025, Glenn Fredericks of counsel appeared for the applicant on a pro-bono basis, instructed by a solicitor at McCabes Lawyers retained by the applicant on a no-win no-fee basis. I appreciate the assistance (and quality of assistance) provided by Mr Fredericks, and the work undertaken by his instructing solicitor, on behalf of an applicant for whom the IAA’s decision has serious consequences.
Greg Johnson of counsel appeared for the first respondent.
A court book (CB) was tendered which contained the Tribunal’s reasons for decision and documents before the Tribunal.
Counsel for both parties made oral submissions which supplemented their written submissions. The submissions are addressed below.
CONSIDERATION
Introduction
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.
On 25 January 2018, the applicant attended an interview with the first respondent’s delegate. The delegate wrote in a decision dated 9 February 2018: (CB 128, 130)
… I am prepared to accept that [the applicant] was a witness to Ibrahim Brohi’s murder and subsequently appeared [as] a witness at the associated murder trial. The applicant also claims that he was threatened in relation to appearing as a witness and he was shot at after giving testimony, and I am also prepared to accept that these events occurred, although I note that the applicant stated at interview that he believes he was shot at, but does not know who shot at him or whether he was the target of the shooting.
…
I have accepted that the applicant witnessed his friend Ibrahim Brohi’s murder and subsequently gave evidence as a witness in the associated murder trial. I also accept that the Awami National Party were behind the murder, as the applicant’s friend was a member of the Pakistan People’s Party. The applicant claims that the people who murdered his friend want to kill him because he gave evidence against them. I have considered whether the applicant would still be of interest to the gunmen, who were acquitted of the charges due to irregularities with the evidence presented by the police. I note that the case is over, and the gunmen have no further need to prevent the applicant from testifying, and they achieved their goal by coercing the applicant into not attending the final hearing.
The delegate, after considering relevant country information, concluded: (CB 130-131)
I am satisfied that the chance of the applicant being harmed for appearing as a witness in the murder trial is exceedingly low, to the point that I consider it to be remote … I am satisfied that the chance of harm coming to the applicant due to his membership of the particular social group “targeted murder witness in an ANP murder trial” to be remote …
On referral to the IAA, the applicant did not take up the opportunity, offered in information attached to a letter dated 15 February 2018, to “provide a written submission on why you disagree with the department’s decision”: CB 142.
The IAA dealt with the applicant’s claims arising from the shooting of his friend in the following manner at [11]-[20]:
[11] The applicant claims that he witnessed a shooting in 2011 in which his friend Ibrahim Brohi was killed. He has provided a judgment from the Karachi Anti-Terrorism Court that confirms the applicant’s claimed version of events and the fact that the applicant was a witness. I also note a media report of the incident which states that Ibrahim Brohi was an activist with the Pakistan People’s Party (PPP). I accept that the applicant witnessed the shooting and was a witness for the prosecution, although the court document does not refer to the content of the applicant’s statement. The document, which is dated 2016, referred to problems with the police evidence and concluded that the prosecution has failed to prove the charge against the accused persons, who were acquitted. The applicant claims that there were two trials at which he appeared but he did not attend the third and final hearing. The document he has provided appears to relate to that final hearing.
[12] The applicant claims that he was threatened during the two earlier trials and on one occasion he was shot at. According to the media report, the shooting of Ibrahim Brohi was linked to his role with the PPP and I am prepared to accept that it was a political killing. In that context, the applicant’s claims of being threatened during the trial are plausible and I am prepared to accept them.
[13] In relation to the claim that he himself was shot at, the applicant claimed in his statement with his SHEV application that:
One day while I was in [a location] 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. 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.
[14]At the interview with the delegate on 25 January 2018 (the interview), when the delegate asked about this incident the applicant said that at the time he made his statement, his migration agent was asking questions and he felt like the agent was an immigration official. He told the agent that he had seen many people get killed and maybe the interpreter who was helping with the statement got some statements mixed together.
[15]The delegate then took the applicant through his statement with the assistance of the interview interpreter. I note that at the start of the interview the applicant had agreed that he understood the interview interpreter had no objections to that interpreter. He made no objections or statements during the interview to indicate that he had any concerns with the interpretation and his agent’s post-interview submissions do not raise any concerns about interpretation at the interview. On that basis, to the extent that the evidence given at the interview is inconsistent with the evidence in the SHEV statement, I consider the interview to be more reliable evidence.
[16] The delegate asked if someone had shot at the applicant and the applicant said “Yes. Maybe they were going to shoot at someone else as well but I was very scared.” The delegate asked if the applicant thought he was the target and the applicant said “It is normal that people are getting killed over there. The situation was pretty bad over there. I was scared because I was getting threats and I thought these are the people.”
[17] Later in the interview the applicant referred again to this incident and told the delegate that before the third hearing there was an attack on his car, but when he read over his SHEV statement before the interview he thought there was something wrong with what the statement said. He said that there is some mention of a food market and he has seen people being killed near that market, but he thinks there is something wrong in what is written in the statement. He thought he may have mixed things up and did not think that the interpreter who helped with the statement spoke good Urdu.
[18] Although the applicant’s statement indicates that the applicant was telephoned and threatened after the incident, his evidence at the interview is that he does not know who shot at him or why, or if he was the intended target; nor did he claim to have received any telephone calls identifying him as the target or threatening him with other similar incidents. Having regard to all of the evidence and the factors considered above, while it is possible that the applicant’s car was damaged in a car park, I do not accept that the applicant was personally targeted because of the trial or for any other reason arising from the shooting of Ibrahim Brohi. He has not claimed or indicated any other reason why he may have been personally targeted by any person.
[19] I have then considered whether the applicant may continue to face harm because of the shooting of Ibrahim Brohi. I take into account that the shooting incident occurred seven years ago and the accused men were acquitted. While I accept that the applicant was threatened during the trial, I am satisfied that the purpose of those threats was to intimidate him and prevent him giving evidence. 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 or supporters to threaten the applicant now.
[20]I have also considered whether the applicant faces harm because the accused or their associates may seek revenge. As noted above, the accused were all acquitted on the basis of problems with the police evidence. The court document provided by the applicant indicates that there were a number of civilian witnesses involved in the trial and the information in the review material does not indicate that any of those witnesses have been targeted for revenge. While the applicant claimed in his statement that a person he knows in Pakistan has heard that the gunmen know that the applicant is in Australia seeking protection, he has not provided any further evidence of this. He has not claimed that the gunmen, or any persons associated with them, have contacted his family to ascertain his whereabouts or intentions, or that anyone has expressed an intention to seek him out and harm him for revenge. While I understand that the applicant may be scared, particularly as he was subjected to threats during the trial, having regard to all of the above I do not consider that this fear is well-founded and I am 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.
Ground 2 in Amended Application
In the ground in paragraph 2 of the Amended Application the applicant contends that the IAA “failed to consider” six matters particularised in paragraphs 2(c)(i)-(iv) and (d)(i)-(ii). In the following paragraphs I address each of the six matters. Two preliminary observations are as follows.
First, the mere fact that the IAA has not referred to an item of evidence or matter in its statement of reasons prepared under s 473EA(1) of the Act does not mean the IAA did not consider the matter. As for the former Refugee Review Tribunal (RRT), “it is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons” and “the inference that the Tribunal has failed to consider an issue … is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47].
In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 the respondent contended that the RRT, which had prepared a written statement of reasons under s 430(1) of the Act, overlooked an item of evidence. There is no relevant difference between s 430(1) (which applied to the RRT) and s 473EA(1) (which, supplemented by s 25D of the Acts Interpretation Act 1901 (Cth), applied to the IAA). The Full Court, in considering whether the court, on a judicial review application, could infer from the RRT’s statement of reasons that the RRT overlooked the item of evidence, stated at [33]-[34]:
[33] The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: …
[34] The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
Second, the IAA’s reasons at [19] indicate that a principal reason the IAA was not satisfied the applicant faced a real chance of harm from the accused men or their associates was that:
While I accept that the applicant was threatened during the trial, … the purpose of those threats was to intimidate him and prevent him giving evidence. 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 or supporters to threaten the applicant now.
There appears to be force in this reasoning process. At the hearing on 31 July 2025, Mr Fredericks did not contend there was an error in this reasoning process.
Further, the IAA’s reasons at [20] indicate that another reason the IAA was not satisfied the applicant faced a real chance of serious harm from the accused men or their associates was that “the accused were all acquitted on the basis of problems with the police evidence”, the material before the IAA “does not indicate that any of the [civilian witnesses involved in the trial] have been targeted for revenge” and the applicant “has not claimed that the gunmen, or any persons associated with them, have contacted his family to ascertain his whereabouts or intentions, or that anyone has expressed an intention to seek him out and harm him for revenge”.
Again, there appears to be force in this reasoning process. Again, at the hearing on 31 July 2025, Mr Fredericks did not contend there was an error in this reasoning process.
Paragraph 2(c)(i): It is contended that the IAA failed to consider that “the applicant is the son of a former politician in Karachi, Pakistan which heightened his profile”. Although neither party tendered a transcript of the applicant’s interview with the first respondent’s delegate in January 2018, at the hearing before the Court in July 2025 the parties agreed that the applicant stated at the interview:
Then I started getting threats that we are not letting me go on the third time. We know everything about you and we won’t spare you. They had enquired about the names of my family as well. My father, you know, won the election twice as an independent councillor, so he was quite famous. So they could easily find me out then.
By this evidence, the applicant told the delegate that, because of his father’s profile, the persons threatening the applicant “could easily find me”. As stated by the first respondent at RS [43], “the applicant never made a claim (let alone a clearly articulated claim) that he had a heightened profile as the son of a former politician”. The IAA, in considering the risk of harm to the applicant from the accused men or their associates, was not required to consider a contention not made by the applicant: see, for example, NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 at [55]-[68]. It is clear from the IAA’s statement of reasons that it listened to an audio recording of the applicant’s interview with the delegate. I consider that the IAA considered and took into account the applicant’s evidence referred to in the above paragraph. A reason the IAA did not refer to the father’s profile at [11]-[22] is because the IAA did not consider the evidence to be material to its reasoning process at [11]-[22].
Paragraph 2(c)(ii): It is contended that the IAA failed to consider that “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”. However, first, the IAA at [12] referred to the applicant’s claim “that he was threatened during the two earlier trials” and accepted this evidence. Second, the IAA at [18] considered the applicant’s claim that he “was telephoned and threatened after the incident”. It is clear that the IAA considered the applicant’s evidence that he received threatening messages, including by phone.
The nub of the applicant’s complaint to the Court in paragraph 2(c)(ii) appears to be as follows. The applicant stated in paragraph 20 of the November 2016 Statement: (CB 81)
I received calls after the car park shooting saying that I was lucky and that next time I will not be so lucky.
The words used by the person making the threat over the phone suggest the applicant was the intended target. The nub of the applicant’s complaint to the Court appears to be that, since the IAA did not accept that the applicant was personally targeted, the Court should infer that the IAA did not consider the applicant’s evidence. However, the reasons of the IAA at [13]-[18] indicate that the IAA was aware of the applicant’s evidence in the November 2016 Statement, but also concerned that some of “the evidence given at the interview [with the delegate] is inconsistent with the evidence in” (IAA at [15]) the November 2016 Statement. For example, in relation to the applicant’s evidence in paragraph 20 of the November 2016 Statement, as stated by the IAA at [18], the applicant’s evidence at the interview with the delegate was:
that he does not know who shot at him or why, or if he was the intended target; nor did he claim to have received any telephone calls identifying him as the target or threatening him with other similar incidents.
As stated by the IAA at [15], where there was an inconsistency, the IAA “consider[ed] the interview to be more reliable”.
In summary, it is clear from the IAA’s reasons at [13]-[18] that the IAA was aware of the applicant’s evidence in the November 2016 Statement (including paragraph 20 of the statement), was aware of inconsistent evidence the applicant gave at the interview with the delegate, and took all these matters into account in reaching the conclusion at [18] that it did “not accept that the applicant was personally targeted because of the trial or for any other reason arising from the shooting of Ibrahim Brohi”.
Paragraph 2(c)(iii): It is contended that the IAA failed to consider that “the shooting incident occurred in the context of a police officer connected with the murder trial also being shot by associates of the gunmen”. This is a reference to the applicant’s evidence in paragraph 17 of the November 2016 Statement – see paragraph 28 above. However, first, based on the evidence before the Court, there was no contention by the applicant before the IAA to the effect that the incident referred to in paragraph 17 of the November 2016 Statement increased the chance the accused men may seek to harm the applicant. The IAA, in considering the risk of harm to the applicant from the accused men or their associates, was not required to address a contention not made by the applicant. While I appreciated Mr Fredericks’ efforts at AS [13]-[15] to explain to the Court how this incident increased the risk of harm to the applicant, a difficulty he faces is that, based on the evidence before the Court, the applicant did not make this contention to the Department or IAA. The first respondent’s written submission at RS [46]-[47] suggests the applicant gave some evidence to the delegate at the interview in January 2018 concerning the incident in paragraph 17 of the November 2016 Statement. However, neither party tendered a transcript of the interview before the Court. Second, it is clear from the IAA’s reasons at [11]-[22] that the IAA considered in some detail that part of the November 2016 Statement concerning the witnessing of the shooting in 2011 and the subsequent trial of the accused and threats received by the applicant. The applicant’s contention to the Court is to the effect that, while the IAA considered most of the statement in some detail, the IAA overlooked paragraph 17. I am unwilling to draw this inference. I consider that a reason the IAA did not refer to the incident referred to in paragraph 17 of the November 2016 Statement in its reasons at [11]-[22] is because the IAA did not consider the evidence to be material to its reasoning process at [11]-[22].
Paragraph 2(c)(iv): It is contended that the IAA failed to consider that “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”. However, first, it is not clear from materials before the IAA that the accused “were imprisoned for approximately five years” before being released. Nor is it clear that the “capture and imprisonment [of the accused] was partly or wholly attributable to the applicant’s role as a witness to the murder of Mr Brohi”, in a context where the shooting occurred on a public road (see paragraph 10 of the November 2016 Statement) and there were probably many witnesses to the shooting. Second, in any event, the IAA at [20] expressly considered “whether the applicant faces harm because the accused or their associates may seek revenge” (Revenge Consideration) and, after addressing some matters (see the full text of [20] in paragraph 32 above), concluded that it 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”. Mr Fredericks did not explain to the Court how the matter in paragraph 2(c)(iv) was not an aspect of the Revenge Consideration. I am not persuaded the IAA failed to consider the matter in paragraph 2(c)(iv) in a manner which involves jurisdictional error.
Paragraph 2(d)(i): It is contended that the IAA failed to consider “that the acquitted gunmen or their associates might seek revenge against the applicant for their five year imprisonment”. However, as stated in the above paragraph, the IAA at [20] expressly considered “whether the applicant faces harm because the accused or their associates may seek revenge” and, after addressing some matters (see the full text of [20] in paragraph 32 above), concluded that it 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”. It is clear the IAA considered whether the acquitted gunmen or their associates might seek revenge against the applicant.
Paragraph 2(d)(ii): It is contended that the IAA 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”. However, first, it is clear the IAA, in considering at [20] whether the accused may seek revenge, was aware that the accused were no longer in prison. Second, the applicant has not identified in the Court Book an occasion on which he made the submission to the delegate or the IAA which he now contends the IAA failed to consider. The IAA, in considering the risk of harm to the applicant from the accused men or their associates, was not required to consider a contention not made by the applicant.
For the above reasons, paragraph 2 of the Amended Application does not identify a jurisdictional error in the IAA’s decision.
Ground 3 in Amended Application
The IAA at [18] found that, “at the interview” with the first respondent’s delegate in January 2018, the applicant “did [not] claim to have received any telephone calls identifying him as the target or threatening him with other similar incidents” (Did Not Claim Finding). The applicant contends in paragraph 3 of the Amended Application that this is “an incorrect finding of fact”. However, first, the way in which Mr Fredericks developed the ground at AS [17]-[18] suggests that he understood that the IAA, in the first sentence of [18], found that the applicant did not claim in any part of his written or oral evidence “to have received any telephone calls identifying him as the target or threatening him with other similar incidents”. However, I consider that the better and more likely reading of the first sentence of [18] is that the IAA found that the applicant “at the interview” with the delegate in January 2018 did not claim “to have received any telephone calls identifying him as the target or threatening him with other similar incidents”.
Second, I understand from the parties’ submissions at the hearing on 31 July 2025 that the single occasion on which the applicant gave evidence at the interview with the delegate concerning threats he received is contained in an extract of transcript at RS [38] where the applicant stated:
Then I started getting threats that we are not letting me go on the third time. We know everything about you and we won’t spare you. They had enquired about the names of my family people as well.
I agree with the first respondent’s submission at RS [54] that the IAA’s use in the first sentence of [18] “of the definite article ‘the target’ suggests that it was focused on whether the applicant had received any calls in which he was identified as the target of the shooting incident – or threatening other similar incidents”. On reading the Did Not Claim Finding in this way, there is no inconsistency between the applicant’s evidence at the interview with the delegate referred to above and the Did Not Claim Finding.
Third, even if the IAA made a finding of fact with which a court on a judicial review application might disagree, this is not a jurisdictional error, although “a finding of fact made in the absence of evidence” may, in some circumstances, amount to a jurisdictional error: see Navoto v Minister for Home Affairs [2018] FCAFC 135 at [63]-[64]; see also Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 424; 164 ALD 258 at [15]-[19].
For these reasons, paragraph 3 of the Amended Application does not identify a jurisdictional error in the IAA’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Both parties accepted that costs should follow the event and the unsuccessful party should be ordered to pay the successful party’s costs in the scale amount of $8,371.30. Since the application is to be dismissed, I will order that the applicant pay the first respondent’s costs in the sum of $8,371.30.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 4 September 2025
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