ASW23 v Minister for Immigration and Citizenship [2026] FedCFamC2G 35

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 typographic, clerical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules), or to record a variation to the order pursuant to r 24.04(h) of the Rules.

1. The case law is clear that a failure by the Tribunal to consider a substantial and clearly articulated claim or submission may constitute jurisdictional error, and this may be demonstrated where the decision maker does not engage in an active intellectual process directly addressing a claim which, if accepted, could be evidence of a well-founded fear of persecution. This is such a case. The Tribunal decision must be quashed, and the review application re-heard and determined.

1. The applicant is a Pakistani man aged in his late-30s who had been working on a ship that docked in Australia when he deserted that ship and applied for a Protection (Class XA) visa (protection visa). His initial claim was not accepted by a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) (the Act). His review to the second respondent (the Tribunal) was also unsuccessful. He now applies for judicial review of the Tribunal decision under s 476 of the Act.
2. The essence of his claim is that he feared persecution by reason of his political opinions, in particular, he claimed his life was in danger from the Taliban, including because he was a member of the Awami National Party (ANP), and also because he supported the Pakistani Army, including through his uncle, who was an army officer, against the Taliban.

1. The claims said to be unaddressed by the Tribunal were concisely put at the hearing before me.
2. In a critical passage the Tribunal found the applicant to be:

[62] ... a comprehensively unreliable witness in this matter. For this reason I do not accept that the TTP [the Tehrik-e-Taliban Pakistan (Movement of the Pakistani Taliban)] ever threatened him for assisting the army, let alone in locating TTP houses ...

[63] I am all the more confident that [he] gave no potentially significant assistance to the army in 2008 or at any time before evacuating his family temporarily ... around that time because of the evidence he gave about his uncle having been an officer in the army who fought the TTP ... in 2008 and subsequent years and who is now a retired resident of [...], living there unharmed and apparently unafraid. I give no weight to [his] suggestion that this is only possible because his uncle is "trained". [emphasis added]

1. In Ground 1 of his application, the applicant contends that the Tribunal did not consider the applicant's claims in his statutory declaration to the Tribunal when he said this:
   1. During the Taliban uprising my brother in law [R] was very active with Taliban from our village. He went missing during the Army operation. In about late 2017, my brother in law [R] came to visit his family. I informed the Army of his arrival and the Army raided his home. Before the Army raid, he already left his home and the Army officer then arrested his father and they told his family that they will release him once [R] handed himself over to the Army. My father in law was in Army custody and he died there on 25th July 2019. His body was handed over to his family members and they were not allowed to do a post mortem to find the cause of his death.

1. Taliban are after their target and people who have opposed them. I was against their organisation and have shown the Army names of Taliban known to me who were later arrested and their houses destroyed in our presence. They are after their target no matter whether they are high profile or a low profile person. The Army have now released some Taliban from their custody including [H] and [Y] and I fear they will mistreat me on my return. I also fear from the family members of Taliban who have been arrested through our assistance and their houses being destroyed.
2. The Minister conceded in the hearing before me that paragraph 18, if accepted, could be relevant to whether there was a well-founded fear of persecution.
3. In Ground 2, the applicant contends that the Tribunal's finding quoted above that I give no weight to [his] suggestion that this is only possible because his uncle is "trained" did not consider or overlooked the following evidence he gave to the Tribunal:

Tribunal Member: Now what's happened to your uncle?

Applicant: My uncle is retired now.

Tribunal Member: He's where?

Applicant: Retired.

Tribunal Member: Retired. Where's he retired to?

Applicant: 2017.

Tribunal Member: And where is he?

Applicant: He is in my village now.

Tribunal Member: So the Taliban want to kill you -

Applicant: Yep.

Tribunal Member: - for helping your uncle?

Applicant: Yep.

Tribunal Member: But your uncle's in the village.

Applicant: Yep.

Tribunal Member: So they're not killing your uncle.

Applicant: No, they will - if they find a chance, because he is army officer, he is a trained person. I already tell him "What are you doing here?" but he said "If I run away, if other people run away, who will fight against these people?" He under the bodyguards, he have a licensed gun. [emphasis added]

1. At the hearing before me, the applicant contended that "He under the bodyguards" was evidence that the uncle "has bodyguards to protect him". The Minister conceded it was evidence of "presumably having a bodyguard, it's not entirely clear". I consider it is at least some evidence (its credibility and weight are different matters) that the uncle, a retired army officer, had "bodyguards". Neither the uncle's bodyguards nor his possession of a firearm were explicitly considered by the Tribunal.
2. In summary, the applicant contends that, examined closely, there are two clearly articulated claims or items of evidence which have not been dealt with; the Minister responds that not every piece of evidence must be referred to and that these matters have been dealt with, subsumed in findings of greater generality. For the reasons which follow, the applicant's arguments should be accepted.

1. Counsel for the applicant took me to a number of the leading cases on this point. First, counsel referred to Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (Plaintiff M1/2021) at [24] and [27] (citations omitted) where Kiefel CJ, Keane, Gordon and Steward JJ said:

[24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder.

[27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

1. In the same decision, Gleeson J said the following at [105]:

The delegate was required to consider the plaintiff's representations in order to decide whether there was "another reason" why the decision to cancel the plaintiff's visa should be revoked. This entailed engaging with any substantial and clearly articulated argument contained in the plaintiff's representations that there was "another reason" why the cancellation of the plaintiff's visa should be revoked. Failure to consider such an argument is at least a denial of procedural fairness and may also constitute a constructive failure to exercise jurisdiction.

1. The applicant particularly emphasised the requirements Plaintiff M1/2021 place on the Tribunal, to:

[25] ... have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.

and that:

[27] ... if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument ... that may give rise to jurisdictional error.

1. The applicant also referred to what Lindgren, Rares and Foster JJ said in Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49], emphasising in particular that an applicant should not be "left to guess" whether their claim has been dealt with.
2. The applicant acknowledged what was said in the case relied upon by the Minister Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] by French, Sackville and Hely JJ, but emphasised the importance of reading that paragraph as a whole, not just the words I have italicised, thus:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that 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. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. [emphasis added]

1. The applicant also referred to what Robertson J said in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [111] and [112], and referred to [119] as an example:

[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. To the extent that the Minister's submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal's reasons I do not agree.

[119] The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal's rejection of the applicant's claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal's approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

1. Further, Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [70], which affirms what SZRKT decided, said as follows:

With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot "put out of account the actual course of decision-making by the Tribunal" and cannot proceed "by reference to categories or formulas", observing that "there are many ways, actual or constructive, of failing to consider the claim". His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error". We agree with his Honour's analysis.

1. The applicant also referred to what Katzmann, Griffiths and Wigney JJ said in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (SZSRS) at [47], [49] and [54]:

[47] The minister sought to characterise the situation here as, at worst, the tribunal ignoring a mere "piece of evidence", as opposed to ignoring a claim or claims. Ultimately, however, he accepted that whether or not the tribunal's failure to consider the letter amounted to a jurisdictional error turns on the importance of the ignored material to the tribunal's process of decision-making. That was inevitable in the light of his ultimate acceptance of the correctness of Robertson J's analysis of this kind of error in SZRKT.

[49] In SZRKT the minister submitted that failing to take the academic transcript into account did not amount to a jurisdictional error so long as it did not mean that the tribunal overlooked the applicant's claim or claims. In substance he made the same submission in the present case. But in SZRKT Robertson J rejected the submission as reflecting an approach to jurisdictional error that relied on categories or formulas. In particular, his Honour held (at [110]) that while the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error. His Honour said (at [98]) that "although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim".

[54] It may be accepted that the authorities referred to by the minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a "tool of analysis". His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the tribunal's functions. We respectfully agree with Robertson J's analysis.

1. Finally, on credit findings, the applicant referred to what Katzmann J said in BTF15 v Minister for Immigration and Border Protection [2016] FCA 647 at [56]:

Nevertheless, I am troubled by the Tribunal's conclusion that the statements of the two witnesses were fabricated. It is one thing to find that evidence should not be given any weight. It is quite another to conclude that evidence is a fabrication. The High Court has said in a different context that "as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence": Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 268 (Brennan, Dawson, Toohey and Gaudron JJ). The Tribunal was entitled to find that the evidence of the two witnesses could not overcome the inconsistencies in the appellant's account. It was unnecessary and inappropriate, however, for the Tribunal to go further and find that their evidence was a fabrication: Smith at 271-2 (Deane J). In the circumstances, that finding was unreasonable. It should not have been made.

1. Here the finding against the applicant is not that his evidence was fabricated, but a finding that he was a "comprehensively unreliable witness" about intrinsically memorable matters which he asserted to know first hand, is not far from that.
2. I now undertake the required "case-specific analysis focusing on the importance of the ignored material and the seriousness of the error."
3. The "Consideration of Claims and Evidence" by the Tribunal consists of the following main parts:

(a) Claims to the Department;

(b) Evidence to the Tribunal;

(c) Independent country information;

(d) Findings in relation to s 36(2)(a) of the Act;

(e) Findings in relation to s 36(2)(aa) of the Act;

(f) Conclusions.

1. In his original statement to the Minister's delegate, the applicant emphasised events said to have occurred in 2006-2007, stating that when the army came to where he lived in the Swat district in Pakistan, he assisted them by identifying members of the Taliban, and their houses. He said he was threatened in 2008 by a Taliban leader who, because of that assistance, ordered his execution. He fled to the Punjab Province as a result although later returned when the TTP had retreated. He moved around and worked as a mariner overseas for long periods, before returning to Karachi but visiting his in-laws occasionally in his old village. He said that in 2018, he was telephoned by the Taliban and told that he should spy for them if he wanted the Taliban to "pardon" him, but he refused.
2. In the Tribunal he gave evidence, expanding on his earlier claims. The Tribunal member was openly sceptical of the spying claims, even more so when the applicant suggested the TTP intended to "brainwash" the applicant into loyally spying for the TTP.
3. As to the applicant's uncle, a retired Pakistani army officer, the Tribunal said:
   1. I asked [him] to explain the significance of his uncle who, he claimed, was an army officer. He said that he was targeted by the TTP for helping his uncle. I asked why the TTP was targeting him and no other males in his family, like his two brothers ... and he said that it was he alone who had shown the army which local houses were inhabited by TTP operatives back in 2008.
   2. I asked [him] to describe his uncle's current circumstances. He said his uncle had retired from the army and was now living in the village ... I asked him if his uncle is suffering any potentially relevant harassment or harm and he said his uncle is "trained," implying that his uncle is able to avoid anything that anyone might try to do to hurt him. I asked [him] again if anything relevant had ever happened to his uncle and he said that nothing had. I put to [him] that the ongoing wellbeing of his uncle who is residing in the same home village did not appear to help support his own claims about facing a real chance of serious harm there. He said that it is different for anyone who showed Taliban houses to the army.
4. Under the heading "Findings in relation to s 36(2)(a) of the Act" the Tribunal said:
   1. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant's claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. [emphasis added]
5. It follows from this statement at [51] that the later finding of comprehensive unreliability at [62ff] was a significant basis for the rejection of the applicant's claims: were it not so, the benefit of the doubt would have been given to the applicant's claims and the Tribunal would have assessed claims on the basis that [they] might possibly be true.
6. The Tribunal accepted that the applicant was a member of the ANP, but denied that he had a high profile as such (at [64]).
7. The Tribunal accepted (at [56]) that the Taliban engaged in coercion and violence when it ruled the applicant's village up until 2008 and 2009. In paragraphs 58, 59 and 60, it said:
   1. I do not accept as factual the suggested timeline in which the TTP, having threatened to kill [the applicant] in 2008, failed to get around to doing so and then later demanded in 2018 that he spy for them and then failed in that endeavour too. [The applicant] was unable to explain how the Taliban would ever have been able to rely on him to provide them with useful intelligence from anywhere. Also, the demand as described had no credible concomitant mechanisms capable of ensuring that [the applicant] would succumb to it. For example, whereas a person may indeed be coerced into spying for an entity in the context of extortion of some kind, there is no evident extortion in this story, and nothing else to give the TTP leverage over [the applicant] in the matter. In addition, the TTP gave itself no advantage by making the demand over the telephone as [the applicant] was all too easily able to hang up, move soon enough ... and go offshore. I find the claim nonsensical, even more so in light of [the applicant's] late suggestion that the TTP wanted to brainwash him. ... On the evidence before me, I am not satisfied that the TTP ever communicated any demand to [the applicant] that he spy for them.
   2. This in itself does not provide sufficient basis for disbelieving that the TTP threatened to kill [the applicant] back in 2008. It is possible that an applicant for protection may have embellished a truthful claim about a long-past problem to give it a little more currency. However, in light of the poor quality of the evidence discussed below, it is hard to accept the claims about the TTP seeking to avenge [the applicant's] assistance of the army back in 2008.
   3. With regard to [the applicant's] "missing" brother, he spoke throughout the hearing as though unaware of that brother, in fact, being a missing person. He spoke of that brother living in [...] and of himself being the TTP's only target. I give this failure some cumulative negative weight in this matter overall. Meanwhile, I am not satisfied on the evidence before me, viewed as a whole, that the content of the police documents and the family notice in the newspaper are factually reliable. Whereas I can accept that [the applicant's] family published a notice in a newspaper on some recent day, I am not satisfied, in the context of the absurdly-dated police request document authored by [the applicant's] father (on "30 January 2023"), that the content of that notice is in any way truthful. This inconsistency regarding the date of the discovery of the alleged disappearance also leaves me unable to give any weight to the purported 31 January 2023 FIR, even though it purportedly describes the police's investigation on the alleged disappearance. The police might be telling the truth, meaning that their report is genuine, but I do not accept that [the applicant] and his family made truthful reports to the police. Hence I give no weight to any of those three documents. I give no weight to the claim about [the applicant's] brother having disappeared. On the quality of the evidence before me, I give no weight to the references to various relatives having been killed by the TTP in recent years.
8. It then came to the following key findings:
   1. On the vague, inconsistent and somewhat nonsensical evidence before me, I do not accept that [the applicant] tried and failed or was blocked by any person or party from coming ashore to claim asylum in Australia on many occasions in the decade preceding his coming ashore in September 2018. Hence I find there has been an unsatisfactorily-explained delay on his part in [bringing] his asylum claims to light. I find on the evidence before me that [the applicant] [came] ashore with other members of his crew to protest in the context of a pay dispute.
   2. All of this [a reference to the three key rejected claims at paragraphs 58, 59 and 61] is to say that I find [the applicant] a comprehensively unreliable witness in this matter. For this reason I do not accept that the TTP ever threatened him for assisting the army, let alone in locating TTP houses ... On the evidence before me, [the applicant's] training as a merchant seaman and long periods away from Pakistan at sea have nothing at all to do with a genuine fear of being persecuted.
   3. I am all the more confident that [the applicant] gave no potentially significant assistance to the army in 2008 or at any time before evacuating his family temporarily ... around that time because of the evidence he gave about his uncle having been an officer in the army who fought the TTP ... in 2008 and subsequent years and who is now a retired resident ... living there unharmed and apparently unafraid. I give no weight to [the applicant's] suggestion that this is only possible because his uncle is "trained."
   4. I am prepared, however, [to] accept that [the applicant] joined the ANP more than a decade ago in Pakistan. Thousands of ethnic Pashtuns his age would have done so at the time. The ANP is a party of mass appeal to Pashto-speaking people in Pakistan. However, on the evidence before me, I am not satisfied that mere membership of the ANP is sufficient to give rise to a real chance of being persecuted in Pakistan, even in these times of TTP resurgence. As noted, I gave [the applicant] an opportunity to describe to me any particular aspects of his involvement with the ANP that might have led to his being singled out for serious harm by the TTP, and he mentioned having been involved in election campaign activities back in 2008. As also noted, I asked how these activities might give rise to sustained and systemic harm now or in the reasonably foreseeable future and he said that he would be seen by the TTP as a person "against" the TTP because he had been an ANP member. However, at other times during the hearing he said he was being singled out by the TTP not merely because of his ANP membership but because of his having helped the army to locate TTP houses in 2008. At the same time as threatening to kill him for exposing the TTP houses, the TTP were also asking him to help them construct a Taliban centre in [the] village. His evidence about his relationship with the TTP is confused. I have already found that I do not accept that the claim [about] showing the army the TTP houses is truthful. On [the applicant's]

...

1. Notwithstanding the DFAT reporting of recent targeting of some ANP figures by a resurgent TTP, particular [sic, particularly] during election campaigns, I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted in Pakistan for reasons of having been or being a member and supporter of the ANP.
2. On the evidence before me, I do not accept that [the applicant] came ashore with any genuine asylum claims, let alone the one about the TTP having then-recently demanded he spy for them. I find that the pay dispute on board the ship he crewed led to sackings and left [the applicant] stranded in Australia without much if any economic future in Pakistan and that this was his real motivation for lodging his PV application.
3. On the evidence before me, I am not satisfied that [he] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future ... He [sic, his] claimed fear of being persecuted is not well founded. He is not a refugee. [emphasis added]

1. I have earlier set out this ground.
2. The statement in paragraph 18 of the statutory declaration, it will be recalled, is as follows.

During the Taliban uprising my brother in law [R] was very active with Taliban from our village. He went missing during the Army operation. In about late 2017, my brother in law [R] came to visit his family. I informed the Army of his arrival and the Army raided his home. Before the Army raid, he already left his home and the Army officer then arrested his father and they told his family that they will release him once [R] handed himself over to the Army. My father in law was in Army custody and he died there on 25th July 2019. His body was handed over to his family members and they were not allowed to do a post mortem to find the cause of his death.

1. The claim is obviously of potential significance and cogency, and one which, if accepted, would be substantial and consequential in the assessment of the applicant's overall claims, especially having regard to the Tribunal's course of reasoning. As noted above, at the hearing before me, the Minister conceded that this claim, if accepted, could be relevant to whether there was a well-founded fear of persecution by the applicant. I consider that it clearly goes to whether the applicant had helped the army in 2017, not just in 2007/8. If that claim was accepted, it is an additional reason for the applicant being singled out by the Taliban, and that claim or evidence would have been taken into account by the Tribunal on the finding of general unreliability as a witness. But there is simply no reference to the quoted portion of the statutory declaration, including in paragraphs 62 and 63 of the Tribunal decision.
2. The Minister says two main things in response. First, as there is reference in the decision to the statutory declaration at [46] of the decision, which contains a quote from the same page on which paragraph 18 appears, and from the page immediately preceding that on which paragraph 25 can be found, the Minister submits that this indicates it is implausible that those claims were overlooked. Second, he submits that the Tribunal's general conclusion that the applicant is a comprehensively unreliable witness in this matter and that "For this reason I do not accept that the TTP ever threatened him for assisting the army, let alone in locating TTP houses" encompasses a general rejection of evidence including the claim at paragraph 18 of the statutory declaration.
3. I do not accept either contention. The opening sentence of paragraph 62 that "All of this is to say that I find [the applicant] a comprehensively unreliable witness in this matter" is a reference to the three key rejected claims at paragraphs 58, 59 and 61. None of those claims include the claim at paragraph 18 of the statutory declaration at all nor at a level of generality.
4. I do find that it was overlooked in the sense that, even if it was adverted to at the hearing, it was simply never considered and it was required to have been. Given the concession that the evidence was capable of affecting a finding about well-founded fear of persecution and, obviously enough, the general finding of being a comprehensively unreliable witness, it was certainly required to be dealt with specifically.
5. There is an analogy between the facts of this case and those considered in SZRKT where Robertson J said at [119]:

The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal's rejection of the applicant's claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal's approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

1. Here also, the Tribunal disbelieved the applicant generally. It cannot be concluded that such a central matter, if consciously engaged with, as the Tribunal was obliged to, might not have led to a different conclusion. It is not necessary now to decide it would have done so.
2. Equally, in the language of SZSRS, this approach by the Tribunal was "ignoring a claim or claims" rather than "ignoring a mere 'piece of evidence'", and also "ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction."
3. It matters not, to quote what Robertson J said in SZRKT, whether paragraph 18 of the statutory declaration is described as a claim or as evidence. It certainly concerned a topic which was required to be intellectually engaged with by the Tribunal and its clear failure to do so meant that there was a denial of procedural fairness and therefore a jurisdictional error by the Tribunal.
4. The applicant rightly says this is a substantial and clearly articulated claim which was not dealt with by the Tribunal, in the sense that it was neither actively engaged with nor the subject of a finding, and that a jurisdictional error resulted. Ground 1 is made out.

1. Ground 2 concerns the applicant's uncle as to which the Tribunal said:

[63] I am all the more confident that [the applicant] gave no potentially significant assistance to the army in 2008 or at any time before evacuating his family temporarily ... around that time because of the evidence he gave about his uncle having been an officer in the army who fought the TTP ... in 2008 and subsequent years and who is now a retired resident ... living there unharmed and apparently unafraid. I give no weight to [the applicant's] suggestion that this is only possible because his uncle is "trained."

1. The Tribunal rejected the applicant's contention that the uncle being unharmed by and apparently unafraid of the Taliban "is only possible because his uncle is 'trained'", whereas it overlooked clear evidence that not only was the uncle trained but also that he had bodyguards and carried a licensed gun, additional matters of obvious relevance and potential weight. The claim was misunderstood and not dealt with. While the Tribunal may have ultimately rejected that evidence as lacking weight or otherwise being implausible, what it could not do was ignore it, but it did ignore it. It thus failed to consider a material claim or evidence, or overlooked or misconstrued relevant material. Ground 2 is also established.

1. The establishment of either ground, let alone both, is enough to justify the quashing of the decision as it is infected by jurisdictional error.
2. In this Court, although the effect does not differ in this matter, there appear to be two main forms of order made when jurisdictional error is made out in migration matters under s 476 of the Act: orders quashing or setting aside, and re-hearing; or alternatively the formal issue of writs of mandamus, prohibition (once known as the "prerogative writs", now as "constitutional writs": see eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [20] per Gleeson CJ) or certiorari. Either course is permissible in view of s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which provides:

The Federal Circuit and Family Court of Australia (Division 2) has power, in relation to matters in which it has jurisdiction, to:

(a) make orders of such kinds, including interlocutory orders, as the Court considers appropriate; and

(b) issue, or direct the issue of, writs of such kinds as the Court considers appropriate.

1. The choice of standard orders contained in the prescribed form contains a mixture of constitutional writ, and orders to the same effect. In my respectful opinion, I prefer the former approach. The jurisdiction under s 476(1) of the Act is "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution." In turn that confers jurisdiction in matters "in which a writ of Mandamus or prohibition or an injunction is sought". Once jurisdiction is attracted, certiorari may be granted alone, or in combination with other remedies: see my decision in BGJ22 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1841 at [19]- [22]. Issuing constitutional writs reminds those bound by them of the nature and provenance of the jurisdiction being exercised.
2. Given the findings on credit previously made, it is appropriate that the Tribunal be differently constituted.
3. Costs must follow the event. The scale costs were claimed by counsel for the applicant and, considering the amount of work in the submissions and the conduct of the hearing, the scale fee of $9,097.93 is appropriate.
4. The orders will be as follows:

(a) A writ of certiorari issue quashing the decision of the second respondent dated 27 February 2023 in case number 1905785.

(b) A writ of mandamus be directed to the second respondent, differently constituted, requiring it to reconsider and determine the applicant's review application according to law.

(c) The first respondent pay the applicant's costs fixed in the sum of $9,097.93.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Renwick.