ASR20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1919

1. On 18 February 2020, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 24 January 2020. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants protection (subclass 866) visas under s 65 of the Act.
2. For the reasons that follow, the application to this Court is dismissed.

1. In February and July 2014, the applicants, citizens of Pakistan, applied for protection visas. The first applicant (Applicant) is the primary applicant. The second applicant is the Applicant's husband. The third, fourth and fifth applicants are children of the Applicant and second applicant.
2. On 4 May 2016, a delegate of the first respondent refused to grant the applicants protection visas.
3. On 3 June 2016, the applicants applied to the Tribunal for review of the delegate's decision.
4. On 13 September 2019, the Tribunal invited the applicants to attend a hearing on 1 November 2019.
5. On 1 and 18 November 2019, the Applicant and second applicant attended a hearing before the Tribunal to give evidence and present arguments with the assistance of an Urdu interpreter.
6. On 24 January 2020, the Tribunal made a decision affirming the delegate's decision not to grant the applicants protection visas.

1. The Tribunal at [8] noted the Applicant claimed protection "on the ground that she will suffer serious harm because she and her sister did not comply with a demand made by the Taliban that they cease providing private tuition to students and that they teach at a madrassa". The Tribunal at [8] also made an upfront observation that it "holds concerns about the credibility of the [A]pplicant" and her sister.
2. The Tribunal at [9]-[29] summarised the evidence given by the Applicant at the hearings on 1 and 18 November 2019.
3. The Tribunal at [30]-[45] summarised the evidence given by the Applicant's sister at the hearings on 1 and 18 November 2019.
4. The Tribunal at [46]-[52] summarised the evidence given by the husbands of the Applicant and the Applicant's sister.
5. The Tribunal at [53]-[169] explained its credibility concerns about the Applicant and the Applicant's sister under the topics:

(a) the basis on which the Taliban held adverse interest in the Applicant and her sister;

(b) the willingness of the Applicant and her sister to continue teaching after the attack on the Applicant's husband;

(c) the Taliban's demand made in January 2013;

(d) intensification of adverse interest in the Applicant and her sister after they left Pakistan;

(e) evidence about employment in Pakistan; and

(f) evidence about the father of the Applicant and her sister

1. The Tribunal at [170] found, based on its cumulative credibility concerns about the Applicant and her sister, that "they are not witnesses of truth and the account of events on which their protection claims are based is false". The Tribunal at [171] found that the husbands of the Applicant and her sister "are not witnesses of truth and their evidence is false".
2. The Tribunal at [173]-[175], after recording its disbelief concerning evidence given by the Applicant and her sister concerning various claims, found that it "has no credible evidence before it that they or any member of their families suffered harm in Pakistan" or "that anyone in Pakistan seeks to harm them".
3. The Tribunal at [176]-[185] considered whether the applicants faced a risk of suffering serious harm on return to Karachi as Sunni Muslims. The Tribunal at [185] concluded "that the risk of the applicants suffering serious harm on return to Karachi is remote".
4. The Tribunal at [186]-[187] concluded "that there is not a real chance that the applicants will suffer serious harm in Pakistan", "there is not a real risk that they will suffer significant harm" in Pakistan, and the applicants did not satisfy the criteria for a protection visa.

Judicial review application and steps up to hearing on 10 September 2025

1. On 18 February 2020, the applicants filed an application in this Court seeking judicial review of the Tribunal's decision. The application contained the following grounds (as written) (Application):

Ground 1

The Tribunal deprived the Applicant of procedural fairness in failing to disclose the existence of section 438 certificate during the hearing and invite him to comment, such certificate also being invalid.

Particulars

The certificate was invalid because the information it purported to relate to was not 'given' to the Department, nor given 'in confidence'. The Tribunal noted in its decision in footnote that the s.438 certificate issued in this case is invalid. Its existence was not disclosed to the applicant until 24 January 2020.

Ground 2

The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact and failed to engage in genuine and realistic consideration.

Particulars

1. The applicant articulated in her submission dated 21 December 2018 which the Tribunal advert it in its decision at para 65 that she fears harm from Baloch settlers. The Tribunal failed to consider or engage in active intellectual consideration of the claim.

2. The applicant articulated in her submission dated 21 December 2018 which the Tribunal advert it in its decision at para 66 that she fears harm due to her failure to wear Burkhas. The Tribunal failed to engage with the claim.

3. The Tribunal failed to consider the claim advanced by the applicant, namely that she is from an educated family. The Tribunal did not dispute that the applicant is a highly educated woman and father was an educated person. The applicant in her statement dated 21.12.2018 submitted that she is from an educated family and at least implicitly articulated it as a ground to seek protection. The Tribunal failed to consider it.

4. The applicant in her statement dated 21.12.2018 advanced a claim that she never liked the TTP expansion and respectfully submitted that it is a political opinion applicant submitted against TIP (Active or imputed). The Tribunal failed to consider it.

Ground 3

The Tribunal engaged in legal error by misconstruing or failing to apply the correct law or test.

Particulars

The applicant continued to articulate during her protection visa process that she would face harm as an educated woman. The Tribunal accepted that the applicant is a highly educated woman but failed to apply the correct test of forward-looking test to assess whether she would face harm if she were to return to Pakistan now or in a foreseeable future.

1. Following a period of inactivity, on 10 March 2025 a registrar of this Court made procedural orders, including that, upon the matter being listed for hearing, the applicants file and serve at least 28 days before the hearing a written submission, any amended application and any additional evidence on which the applicants sought to rely.
2. On 30 July 2025, the parties were notified by the registry of the Court that the matter was listed for hearing on 10 September 2025.
3. On 26 August 2025, the first respondent filed a written submission (RS).
4. The applicants did not file or serve any further materials before the hearing on 10 September 2025.

1. At the hearing in this Court on 10 September 2025, the Applicant appeared unrepresented, assisted by an Urdu interpreter. The Applicant appeared on behalf of the remaining applicants. Kerrie Pieri from MinterEllison appeared for the first respondent
2. The Applicant brought to the hearing a copy of the Court Book, filed and served by the first respondent in May 2020, which contained the Tribunal's decision and documents before the Tribunal. At the commencement of the hearing, I directed the Applicant's attention to the Tribunal's decision. I explained that the Court's role was limited to considering whether there is a jurisdictional error, which I described as a significant error or mistake, in the Tribunal's decision. With reference to the Tribunal's reasons for decision, I explained the main categories of jurisdictional error. I explained that, for the applicants to win the Court proceeding, the Applicant must persuade the Court there is a jurisdictional error in the Tribunal's decision.
3. I offered the Applicant a 10-minute break to consider oral submissions she wanted to make. The Applicant replied that she did not want a break.
4. Ms Pieri tendered a copy of the Court Book (CB).
5. I invited the Applicant to make oral closing submissions. The Applicant stated that she relied on the grounds in the Application and did not wish to make oral submissions. I directed the Applicant's attention to the Application and asked her some questions to help me understand the grounds.
6. Ms Pieri, in her oral submissions, principally relied on the first respondent's written submission filed in August 2025.

1. The Tribunal wrote in footnote 14 to its decision:

... the Tribunal records that the delegate issued certificates restricting the disclosure of certain documents on the Department file and on Department file CLF2014/60951. There was no need for the Tribunal to raise this with the applicant because the documents in question amounted to nothing more than administrative records relating to the processing of the protection visa application. The contents of these documents are not relevant to the grounds on which this review has been determined and they are not adverse to the applicant. Further, the certificates were issued on the basis that disclosure of the information contained in the documents would 'prejudice the security, defence or international relations of Australia'. This is not a satisfactory justification for the delegate's claim that disclosure of this information would be contrary to the public interest. Accordingly, the certificates in question are not valid.

1. The two certificates appear at CB 141 and 148. The first respondent accepts the certificates were invalid, and thus the Tribunal correctly found the certificates were invalid.
2. The Applicant contends in ground 1 that "the Tribunal deprived the Applicant of procedural fairness in failing to disclose [the two certificates to the Applicant] during the hearing and invite [her] to comment". For the following reasons, I reject this contention:

(a) The Applicant did not contend there was any error in the Tribunal's reasoning process that "there was no need for the Tribunal to raise this with the [A]pplicant because the documents in question amounted to nothing more than administrative records relating to the processing of the protection visa application", and the documents "are not relevant to the grounds on which this review has been determined".

(b) I cannot identify an error in the Tribunal's reasoning process. It follows that I am not persuaded that procedural fairness required the Tribunal to disclose the certificates to the applicants and invite them to comment.

1. Further, as stated by the first respondent at RS [36], "even if it is established that the Tribunal should have put the certificates and material it covered to the applicants for comment, any error would be immaterial": see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [9]- [16] (LPDT). The Applicant did not "satisfy the court that the threshold of materiality is met": LPDT at [14].
2. For these reasons, ground 1 does not identify a jurisdictional error in the Tribunal's decision.

1. Particular A: It is contended that the applicants articulated in a submission dated 21 December 2018 (December 2018 Submission) (at CB 188-191) that the Applicant feared harm from Baloch settlers, and the Tribunal failed to consider or engage in active consideration of this claim.
2. The Applicant wrote in the December 2018 Submission that, when she lived in Pakistan, she was not eager to teach at a madrassa in Karachi at the request of her father "due to the escalating problems from the TTP and the Balochs who were settling in Karachi in large numbers".
3. For the following reasons, Particular A does not identify a jurisdictional error in the Tribunal's decision:

(a) As correctly noted by the first respondent at RS [38], the Applicant did not claim to fear harm from Baloch settlers, but merely expressed a past concern of a risk of harm in Karachi arising from "escalating problems [between] the TTP and the Balochs".

(b) The Tribunal referred a number of times to the December 2018 Submission (see for example in footnote 4, at [64]-[70], [96], [99]-[102]), and expressly referred at [65] to the part of the December 2018 Submission the subject of Particular A. For this reason, I consider that the Tribunal expressly considered and had regard to the information the subject of Particular A.

(c) To the extent that the information the subject of Particular A could be characterised as a claim, the Applicant claimed a fear of harm in Karachi from generalised violence. The Tribunal at [176] commenced "an assessment of the risk of the applicants suffering serious harm on return to Karachi". In the course of this assessment, the Tribunal at footnote 12 noted that "the steady migration of Pashtuns from Khyber Pakhtunkhwa ... to Karachi has reportedly contributed to violence between the armed wings of major political parties". The Tribunal at [185] concluded "the risk of the applicants suffering serious harm on return to Karachi is remote. The Tribunal thereby addressed the claim in respect of which the information the subject of Particular A was a part, and satisfactorily dealt with the information the subject of Particular A in considering the Applicant's claims.

1. Particular B: It is contended that the Applicant claimed in the December 2018 Submission that she feared harm due to her failure to wear a burqa and "the Tribunal failed to engage with the claim".
2. The Applicant wrote in the December 2018 Submission that:

The TTP men ... humiliate us in public for not wearing scarfs or Burgahs and threatened us with abduction to Madrassas.

1. For the following reasons, Particular B does not identify a jurisdictional error in the Tribunal's decision:

(a) I agree with the first respondent's submission at RS [41] that "this was not a claim in and of itself to fear harm, but rather was simply part of the Applicant's narrative for why she feared harm from the TTP".

(b) The Tribunal at [66] expressly referred to the part of the December 2018 Submission the subject of Particular B. For this reason, I consider that the Tribunal expressly considered and had regard to the information the subject of Particular B.

(c) To the extent that the information the subject of Particular B could be characterised as a claim, the Tribunal at [170]-[175] comprehensively rejected "the account of events on which [the Applicant's] protection claims are based" (at [170]), including that she "suffered harm in Pakistan" or "that anyone in Pakistan seeks to harm" her (at [175]). This included the claim the subject of Particular B.

1. Particular C: It is contended that "the Tribunal failed to consider the claim advanced by the Applicant ... that she is from an educated family".
2. The Applicant wrote in the December 2018 Submission that:

Our family is well known as an educated family because of my father who got us to become teachers. We never liked the TTP expansion but we did not have the support from the MQM members ... under these circumstances, if I go back, I would put by husband and children in danger.

1. The applicants' agent added in a submission dated 3 December 2019 (CB 258):

[The Applicant] says the basis for her protection claims is that the TTP targeted her. She says that this could be due to the fact that she is an educated woman spreading knowledge on subjects disliked by the TTP, or that she refused to teach at Madrassas1 or that the TTP found her to be competent and skilled in spreading TTP' s radicalised ideas. She says TTP is an extremist terrorist organisation that could oppose many things that normal people do not.

1. For the following reasons, Particular C does not identify a jurisdictional error in the Tribunal's decision:

(a) It is clear from the Tribunal's reasons at [64]-[70] that the Tribunal considered the December 2018 Submission. There is no reason for the Court to infer that the Tribunal did not consider the entire submission. It follows that the Tribunal expressly considered and had regard to the information the subject of Particular C.

(b) It is clear from the agent's submission at CB 258 that the relevance of the Applicant's evidence that she was educated was to support her claim that the TTP targeted the Applicant because she was an educated woman. The Tribunal at [170]-[175] comprehensively rejected "the account of events on which [the Applicant's] protection claims are based". This included the Applicant's claim that she was targeted by the TTP and her claim based on her being an educated woman. For these reasons, to the extent that the information the subject of Particular C could be characterised as a claim, the Tribunal considered and (at [170]-[175]) comprehensively rejected the claim.

1. Particular D: It is contended that the Applicant, in the December 2018 Submission, "advanced a claim that she never liked the TTP expansion", and this "is a political opinion ... against TTP" which "the Tribunal failed to consider". The part of the December 2018 Submission concerning this contention is set out in paragraph 41 above.
2. For the following reasons, Particular D does not identify a jurisdictional error in the Tribunal's decision:

(a) I agree with the first respondent's submission at RS [46] that "it could not be inferred that the Applicant claimed to fear harm due to her political opinion".

(b) For reasons explained in paragraph 43(a) above, I consider that the Tribunal expressly considered and had regard to the information the subject of Particular D.

(c) To the extent that the information the subject of Particular D could be characterised as a claim, the Tribunal considered and rejected the claim as part of its comprehensive rejection of the Applicant's claims at [170]-[175].

1. The nub of ground 3 appears to be that the Tribunal "failed to apply the correct test of forward-looking test to assess whether [the Applicant] would face harm if she were to return to Pakistan now or in a foreseeable future". The applicants do not particularise or explain the manner in which the Tribunal "failed to apply the correct test".
2. The Tribunal:

(a) at [176] stated that it "now turns to an assessment of the risk of the applicants suffering harm on return to Karachi";

(b) at [177] stated that "the risk of the applicants suffering serious harm as Sunni Muslims on return to Karachi is remote";

(c) at [185] repeated that "the risk of the applicants suffering serious harm on return to Karachi is remote"; and

(d) at [186] found that "there is not a real chance that the applicants will suffer serious harm in Pakistan" and also considered "the necessary and foreseeable consequences of [the applicants] removal from Australia to ... Pakistan".

1. This language by the Tribunal at [176]-[186] appears orthodox, and suggests the Tribunal applied the correct forward-looking test. I cannot identify any error in the Tribunal's approach.
2. For these reasons, ground 3 dos not identify an error in the Tribunal's decision, let alone a jurisdictional error.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Ms Pieri sought an order for costs in the sum of $5,900 against the Applicant, as well as the second and third applicants.
2. The Applicant opposed an order in the amount of $5,900 because she faces financial hardship. However, as stated in Northern Territory of Australia v Sangare [2019] HCA 25; 265 CLR 164 at [26] and [27], "the impecuniosity of an unsuccessful party, without more, is not a sufficient reason for depriving a successful party of its costs" and "the statutory power to order costs affords the successful party necessary protection against unmeritorious litigation; and unmeritorious litigation is no less unmeritorious because it is pursued by a person who is poor or who is a litigant in person".
3. The Applicant, by filing and progressing the Application to hearing, has forced the first respondent to incur legal costs. Her claimed limited financial position does not affect a determination of an appropriate amount in the present matter.
4. In relation to whether the costs order should also be made against the second and third applicants:

(a) The second applicant is the husband of the Applicant. The Applicant stated at the hearing that a costs order should not be made against the second applicant because the Applicant is the main applicant. I disagree. The second applicant, like the Applicant, filed and progressed the Application to hearing and thereby caused the first respondent to incur costs. The costs order should also be against the second applicant.

(b) The third applicant is a child of the Applicant and second applicant. He was born in 2006. He was about 14 years old when this court proceeding commenced. He is now about 19 years old. On 12 March 2020 the Court ordered that the Applicant be appointed his litigation guardian. The first respondent has not clearly put the third applicant on notice that it would seek a costs order against him. In these circumstances, it is not appropriate to make a costs order against the third applicant.

1. For the above reasons, I will order that the first and second applicants pay the first respondent's costs in the sum of $5,900.

1. At the conclusion of the hearing, Ms Pieri requested that the litigation guardian order made by the Court in respect of the third applicant on 12 March 2020 be discharged. Since the third applicant is no longer a minor, I will discharge the order.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.