CMU18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1025

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) dated 19 April 2018, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise visa (visa).

1. The following background and summary of the Authority's decision are derived from the written submissions of the parties and, unless otherwise indicated, do not appear to be in dispute. Given the length and extent of the Authority's decision, the following summary has been limited to findings which are referable and relevant to the ground of review raised.
2. The applicant is a male citizen of Pakistan and a Shia Muslim, who arrived in Australia on 3 August 2013 as an unauthorised maritime arrival (CB 137).
3. At the applicant's arrival interview on 9 December 2014, he claimed his uncle was a Shia scholar with whom he attended sermons. The applicant claimed that he and his uncle had been targeted, had "narrowly escaped" and in 2011 they had been followed one night and had to stay in the jungle. The applicant claimed he was not himself involved in any political groups, protests or particular social groups.
4. On 20 September 2016, the Department wrote to the applicant to notify him that the Minister had lifted the bar imposed by s 46A(1) of the Migration Act 1958 (Cth) (Act), and to invite him to apply for either a Temporary Protection (Class XD) (subclass 785) visa or a Safe Haven Enterprise visa (CB 29 to 30). On 29 December 2016, the applicant lodged the visa application (CB 37 to 160).
5. In a written statement provided with his visa application (CB 154 to 157), the applicant claimed he and his family lived in a particular place in the Punjab[1]. He claimed to have marks on his back from self-flagellation. Notably, he claimed that his uncle, was a famous Shia religious scholar and that he and that his family followed the path of Alama Sajid Naqvi (Naqvi) of the Shia movement Tehrik Nifaz-e-Fiqah-e-Jafria (TNJF). He also claimed two of his uncles were Shia preachers and his family was a well-known Shia family who promoted the Shia religion. He claimed that some of the elder members of his family had a dispute with the Sunni people in his home area. The applicant claimed that after he completed his studies, he worked with his uncle in promoting Shia Islam and that, in 2011, he joined the Shia Imamia Student Organisation (ISO) to recruit students. The applicant claimed he provided security services to his uncle during Moharram celebrations. He claimed that in 2011 he was in a car with his uncle, and they were chased by Sunni extremists (the 2011 incident). The applicant further claimed that in 2013, while working as a security guard during a particular religious event at an Imambargah (mosque), he detained a suspicious looking person and handed them over to the police (the 2013 incident). The applicant claimed that he was later informed by the police that the person he detained was a close associate of a notorious Sunni extremist.
6. The applicant claimed to fear harm in Pakistan on the basis of his Shia religion, being the nephew of his uncle by reference to the profile of the latter, his membership of the ISO, threats from Sunni extremists and his ongoing Shia religious activities in Australia with Bazm-e-Ahlebait (BEA).
7. On 13 July 2017, the delegate refused to grant the applicant the visa (CB 304 to 321). The delegate rejected many of the applicant's key claims for protection on the basis of country information, and identified inconsistencies and deficiencies in the applicant's evidence.
8. On 14 July 2017, the delegate's decision was referred to the Authority for review (CB 327).
9. On 19 April 2018, the Authority affirmed the delegate's decision (CB 367 to 394).

1. The Authority obtained information titled "Shias killed in Pakistan since 2001", which focused on the deaths of Shia Muslims as a result of sectarian violence in Pakistan and was more recent that similar information which had been before the delegate. Accordingly, the Authority was satisfied there were exceptional circumstances to justify considering this new information (CB 368 at [4]).
2. The Authority acknowledged receipt of three submissions from the applicant's representative (at CB 368 at [5]) on each of:

(a) 4 August 2017 (first submission) which contained legal argument, an array of information reports and articles;

(b) 8 September 2017 (second submission) which repeated legal arguments and aspects of the new information which formed part of the first submission and;

(c) 13 September 2017 (third submission) which included other country information that had not been before the delegate.

1. To the extent the first submission contained new information, the Authority was not satisfied that this could not have been provided to the delegate prior to their decision, nor that it was credible personal information: s 473DD(b) of the Act. In relation to the information which post-dated the delegate's decision, for the reasons it gave, the Authority was not satisfied there were exceptional circumstances to justify considering it: s 473DD(a) (CB 370 at [14]). In relation to the second submission, the Authority referred to previous findings in respect of these matters in the context of the first submission and noted that no new information was included or referred to in the second submission (CB 371 at [20]). The Authority acknowledged that none of the new information provided with the third submission could have been provided to the delegate (s 473DD(b)(i)), and for the reasons it gave, it was not satisfied there were exceptional circumstances to justify considering the new information (CB 373 at [28]).

1. The first submission also included a request from the applicant that the Authority interview him and contact the authors of the supporting documents. The Authority noted the review was generally to be conducted without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1) (CB 370 at [17]). The Authority was satisfied that the applicant had the opportunity to put forward all of his claims and was not satisfied that an interview was necessary. Accordingly, the Authority decided not to exercise its discretion to conduct an interview in this case (CB 370 to 371 at [17] to [18]).
2. For essentially the same reasons as those for refusing to exercise the discretion to interview the applicant, the Authority also decided not to exercise its discretion to get new information from the authors of the supporting documents (CB 371 at [19]).

1. The Authority found it to be unlikely that either the applicant's self-flagellation scars (which were on his back and apparently not visible) or last name (which was used by both Shias and Sunnis) would make him readily identifiable as a Shia Muslim. However, it was prepared to accept that he may be identified as such for attending Shia venues and events (CB 273 at [31]).
2. In relation to the applicant's claimed involvement with the TNFJ, for the reasons it gave at (CB 376 to 377 at [36] to [41]), the Authority ultimately concluded that the applicant was not a member or supporter of, or involved in any way with the TNFJ, Naqvi or the TJP, on the basis of his limited knowledge of these things (CB 377 at [43]).
3. In relation to the applicant's claims to fear harm by reason of his family's high-profile, the Authority accepted the applicant's uncle was the person whom the applicant claimed,[2] and that the applicant's extended family was associated with an Imambargah in their home area[3] (CB 378 at [50]). The Authority however did not accept that these matters would be more broadly known, nor that the applicant's family was broadly perceived as a well-known Shia family (CB 380 at [58]).
4. The Authority discussed, and made findings in relation to, the applicant's claims about having worked for his uncle (CB 380 to 381 at [58] to [66]) and the 2011 incident (CB 382 to 383 at [70] to [74]). The Authority found it likely that the applicant exaggerated his involvement with his uncle and only accepted he attended events with him once or twice at most, but did not work for him in any capacity at any time (CB 381 to 382 at [68]). For the reasons that it gave at [70] to [74], the Authority concluded that the 2011 incident had not occurred (CB 382 to 383).
5. The Authority considered the applicant's claims about providing assistance for security at events and membership of ISO and found, in light of what it considered was the "vague and inconsistent nature" of the applicant's claims about ISO, was not satisfied he was a member of, or perceived to be a member of ISO, or that he undertook any work for them other than voluntary security in his personal capacity as a member of the Shia community (CB 384 at [83]).
6. In relation to the 2013 incident, the Authority:

(a) summarised the applicant's changing evidence about the 2013 incident (CB 384 to 385 at [84] to [87]);

(b) found it to be unclear why the man (whom the applicant allegedly detained) had been able to enter the Imambargah in the first place if his appearance was suspicious, as claimed, or how he had been allowed to come and go on a number of occasions. The Authority noted that the applicant's evidence had developed, from initially describing the man as an unauthorised person (in the visa application) to having a long beard, being a Pashtun and from Afghanistan (in the SHEV interview). Further, the Authority found it was difficult to understand why, if the man had been released, why he or his associates would have maintained the claimed level of interest in the applicant (CB 385 at [87]);

(c) noted the applicant did not refer to the 2013 incident at his entry interview (at [88]) and found that, even having regard to the limited time allowed to the applicant at that interview (CB 386 at [91]);

(d) on the basis of the issues it had identified in the applicant's evidence, found that the 2013 incident had not occurred (CB 386 at [92]); and

(e) accepted that the applicant was an actively practising Shia Muslim in Pakistan who sometimes provided assistance with security arrangements during Shia religious events, but did not accept he was (or was perceived to be) a Shia activist for any reason at the time he left Pakistan (CB 386 at [93]).

1. Finally, the Authority found that the applicant's new claim raised for the first time at the SHEV interview that the applicant's father was involved in a protest was, essentially, vague and did not accept the applicant would be considered a Shia activist for this reason (CB 386 to 387 at [94] to [96]).

1. The Authority embarked on a detailed consideration of the country information before it in relation to the treatment of Shia Muslims in Pakistan, the activities of Sunni extremist groups, and the Pakistani Government's response to terrorism and other violence in Pakistan (CB 387 to 389 at [100] to [106]).
2. Considering the applicant's evidence individually and cumulatively, the Authority was ultimately not satisfied that any of the combinations of the applicant's circumstances would expose him to a real chance of serious harm in his home areas (CB 392 to 393 at [123]).

1. The Authority referred to its anterior factual findings by which it accepted that the applicant may be briefly detained by Pakistani authorities on return to check whether he is wanted for committing any crime and/or placed on a blacklist. The Authority was not satisfied that any harm experienced as a result of any such treatment would constitute significant harm for the purposes of s 36(2A) of the Act or that there were substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a result of this treatment, should it occur, on his return to Pakistan (CB 393 at [127]).
2. The Authority also referred to its findings that there was not a real chance of harm to the applicant on the bases claimed.

(a) being a readily identifiable Shia Muslim who actively practised his faith;

(b) his involvement in Shia community activities or his contribution to security arrangements during Shia religious occasions;

(c) any reason related to his membership of his family;

(d) his actual or perceived involvement in his uncle's activities;

(e) his father's possible involvement in a Shia protest;

(f) any reason related to his father's employment; the security situation in their home areas;

(g) his return to Pakistan having sought asylum and lived in a Western country; or

(h) as a result of any combination of these matters.

1. Given that "real chance" and "real risk" involve the same standard, the Authority was also not satisfied there was a real risk of any of the applicant suffering significant harm for these reasons (CB 393 at [128]).

1. These proceedings were commenced by an application to show cause filed for the applicant on 15 May 2018. The proceedings were initially docketed to a different Judge of the Court (first primary Judge). On 7 June 2018, a Registrar of the Court made orders (inter alia) for the proceedings to be listed for final hearing before the first primary Judge on a date to be administratively advised, together with a timetable for the filing and service of Affidavit evidence and written submissions by the parties. Included in the Registrar's orders was a grant of leave to the applicant to file and serve any amended application by 30 August 2018. No such application was filed within that grant of leave.
2. The proceedings were later transferred to the central migration docket.
3. On 4 February 2019, a Notice of Address for Service was filed for the applicant by which the identity of his legal representative was changed. On 23 August 2019, a Notice of Appointment of Lawyer was filed for the applicant appointing another, different lawyer to represent him.
4. On 15 July 2021, written submissions prepared by Counsel were filed, unprompted, on behalf of the applicant.
5. On 28 August 2024, the proceedings were docketed to me, and I made orders on that date listing them proceedings for final hearing before me on 8 October 2024 and providing for a timetable for the filing and service of evidence, and written submissions by the parties 14 and 7 days (respectively) before the hearing (August orders). The applicant was granted further leave to file and serve any amended application by 24 September 2024.
6. On 26 September 2024, the applicant's solicitor wrote to the Court to request that the hearing scheduled for 8 October 2024 be adjourned, in circumstances where the applicant's Counsel (who had apparently been briefed for some time, and was the author of the written submissions referred to at [32] above) was not available. In those circumstances and given that the first respondent consented to the requested adjournment, I acceded to it and the final hearing was duly adjourned to 21 November 2024, being a date mutually available to the parties' respective legal representatives.
7. On 31 October 2024, proposed consent orders were provided to the Court seeking to vary the timetable in circumstances where each of the parties were already in breach of the August orders. The correspondence provided no context or explanation as to why the breach had occurred. In order not to jeopardise the hearing date, and despite the absence of any explanation, I made the following orders by consent on 1 November 2024, to regularise the timetable for the filing and service of documents:

1. The applicant must file and serve the following documents by 4:00pm on 1 November 2024:

1. any amended application giving complete particulars of each ground of review relied upon; 2. any Affidavit evidence to be relied upon; and 3. a written outline of submissions and list of authorities and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.

1. The first respondent must file and serve the following documents by 4:00pm on 14 November 2024:

1. any Affidavit evidence to be relied upon; and 2. a written outline of submissions and list of authorities and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.

1. On 1 November 2024, the following documents were filed for the applicant:

(a) an Affidavit of Jack Bulloch affirmed on 1 November 2024 (Bulloch Affidavit) which annexed an Amended Application; and

(b) an Application in a Proceeding by which he sought to:

(i) rely on the transcript of the audio recording of the applicant's entry interview held on 9 December 2014, annexed and marked "JMS-1" in the Affidavit of Julia Mary Sweeney affirmed 21 October 2024; and

(ii) amend the originating application in the form exhibited to the Bulloch Affidavit and marked "JMS-2".

1. On 21 November 2024, the parties were each represented by their respective Counsel at hearing before me. Counsel for the applicant confirmed that he continued to rely on the written submissions filed in 2021 (see [32] above). Written submissions had also since been filed for the first respondent on 2 October 2024.
2. At hearing, leave was granted to the applicant to file and rely on the proposed amended application annexed to the Bulloch Affidavit (Amended Application) on the basis that it be filed on or by 22 November 2024, which duly occurred.
3. For the applicant, the Affidavit of Julia Mary Sweeney affirmed on 21 October 2024 (transcript Affidavit) annexing the transcript of the audio recording of the applicant's entry interview was read without objection. The applicant also tendered the Court Book which was received by the Court and marked as Exhibit "1A".

1. The Amended Application raises the following, sole ground of review:

The IAA failed to consider, on its proper import, the actual evidence of the entry interview.

Particulars

a. The IAA drew a significant adverse inference from the Applicant not having mentioned at the entry interview, the claim about the unauthorised man at the Imambargah.

b. But the IAA did not consider that the reason why this was so, is that the interviewing officer specifically asked the applicant to give only a "one or two sentence" summary of why he left Pakistan, and that it was not the occasion for the applicant to mention all such evidence.

1. Given that the ground is of relatively narrow scope, and that each of the parties are represented by Counsel experienced in this jurisdiction, it is possible to address that ground succinctly.

1. The ground of review takes issue with the Authority's reasoning to support its finding at [92] of its decision that it was not satisfied that the 2013 incident occurred. It is sensible therefore to set out [92] in its entirety:

Given the issues discussed in relation to the applicant's evidence about this incident, and in particular the omission of any reference to this incident from the applicant's description of his reasons for leaving Pakistan during the entry interview, I am not satisfied that this incident occurred. I do not accept that the applicant was involved in the apprehension of a Sunni militant or the handover of the Sunni militant to the police. It follows that I do not accept that the applicant was subsequently followed or threatened for this reason, or that he left Pakistan because of any such threats.

1. The applicant acknowledges that there were several aspects to the Authority's reasoning in [92] but says that a "material strand" of the basis for rejecting the applicant's claim was the applicant's:

...omission of any reference to this incident from the applicant's description of his reasons for leaving Pakistan during the entry interview...

1. The applicant says that the Authority erred by disbelieving him, for reasons including his failure to raise the 2013 incident at his entry interview. The applicant relies on the transcript of the entry interview which forms Exhibit "JMS-1" to the transcript Affidavit. The applicant says that, even accepting the Authority listened to the audio recording of the entry interview, it failed to appreciate that the applicant was "directed"[4] by the delegate to provide "truncated"[5] and brief answers and was not given the opportunity to expand upon all of the occasions on which he had been targeted for adverse treatment as the Authority allegedly "moved away from the topic".[6]
2. The applicant says that the Authority failed to consider the whole of the entry interview in its proper context, and relied on a "wrong understanding of that interview".[7]
3. Contending that the entry interview constituted important evidence in the review, the applicant says the Authority's alleged failure to understand that evidence, or its misconstruction of the evidence in the review constitutes a jurisdictional error of the kind identified in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 per Kenny, Griffiths and Mortimer JJ (as her Honour then was).
4. In the alternative, the applicant alleges that there was no rational basis for the Authority to draw an inference adverse to the applicant from his failure to mention the 2013 incident at the entry interview.

1. The first respondent says that the ground of review is misplaced given that the Authority confirmed it had reviewed a recording of the entry interview and that the interviewing officer only asked the applicant to describe his reasons for leaving Pakistan "very briefly and in only one or two sentences" at [89] of its decision (CB 385 to 386). The first respondent says that rather than explaining why the applicant had not mentioned the unauthorised man at the Imambargah, the fact that the applicant was asked to distil his reasons for leaving Pakistan underscores that he failed to prioritise and mention the 2013 incident among his brief description. This is said to be particularly so given his later claim that it was the reason he decided to leave Pakistan.
2. The first respondent says the Authority was plainly cognisant of the fact the applicant was directed to give truncated answers and, given that understanding, the findings it made were therefore reasonably open to it.
3. The first respondent also says that the allegation the Authority failed to consider evidence such that this constituted jurisdictional error is baseless, particularly in circumstances where the Authority noted that it had listened to the entry interview (CB 385 to 386 at [89]).
4. Additionally, the first respondent says that the Authority did not take an incautious approach of the kind identified in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; (2014) 239 FCR 436 per North, Bromberg and Mortimer JJ (as her Honour then was). The first respondent says that while the Authority relied on the failure by the applicant to mention the 2013 incident at interview, it referred to other factual findings made in respect of the claimed incident also in reaching its conclusions (CB 386 at [92]).

1. I accept the submissions of the first respondent and am satisfied that there is no error of the kind the applicant alleges.
2. When consideration is given to the transcript of entry interview, it reveals the following:

(a) towards the conclusion of the interview the interviewer said at Q85 "Now the next lot of questions I have for you I just need a yes or a no, unless I ask you any further questions.";[8]

(b) as the first respondent correctly submitted, by the time the interviewer has reached Q110,[9] he had abandoned that requirement for "yes" or "no" responses. This is evidence because thereafter the applicant was not only providing longer answers, but the interviewer was asking open-ended questions;

(c) Q110 was as follows: "Just really briefly, because today is just to get a snapshot, I just want a one to two sentence summary of why you left Pakistan."[10] (emphasis added), to which the applicant made reference to being a scout in the Imambargah. While the applicant mentioned the Imambargah, he did not mention the incident in question but talked instead about his having been "targeted" two or three times. The targeting was therefore revisited a short time later (see [53(e)] below);

(d) at Q112,[11] the interviewer then asked about the applicant's uncle and the work the applicant used to do with him;

(e) at Q120 the interviewer picked up the applicant's earlier comment about having been targeted and asked: "And just very briefly tell me about the target that you were subjected to".[12] The applicant replied by mentioning one incident and the interviewer prompted him to elaborate about the further times he was targeted (Q121 to Q123 (inclusive));

(f) the interviewer then began to conclude at Q124 by saying: "And just very briefly, what reasons to you have for not wanting to return to Pakistan?" (emphasis added). In reply the applicant again referred to having been targeted; and

(g) at Q125 the interviewer asked: "That's all the questions I have for you today, okay. I've got enough from what I need from my perspective. Is there anything else that we haven't discussed that you wanted to include?"[13] to which the applicant expressly said there is not.

1. Questions 110 and 124 are different. The applicant was being asked by the former question why he left Pakistan and by the latter why he did not want to return. It can be accepted in a protection context that there may be a considerable degree of overlap in the answers to those questions. However, when given the opportunity (in response to questions 110 and 124) to explain his reason/s for leaving Pakistan and/or the reason/s he did not wish to return, the applicant did not raise the claimed 2013 incident in answer to either question. It was open to the Authority to consider that omission to be a matter of moment.
2. I am satisfied that despite being asked to keep his answers brief, the applicant was thrice given the opportunity to make the 2013 incident claim by questions 110 and 124, and then again at Q125 whereby he was given a broad opportunity to raise anything else that he "wanted to include". If the applicant had felt somehow that the 2013 incident did not arise as an answer to either of questions 110 or 124, that was his additional opportunity to say so, in particular given that by Q125 the interviewer did not seek to encourage brevity. I accept the submissions of the first respondent that the interviewer was not otherwise under any obligation to "prompt" the applicant to raise the 2013 incident.
3. Nonetheless, the Authority's adverse finding arose from the fact that the applicant later claimed that the entire reason he left Pakistan was the 2013 incident. Based on the matters set out in the preceding paragraph, I am satisfied that finding was open to it.
4. In relation to the applicant's contention in the alternative argument that there was "no rational basis" for the Authority to draw an adverse inference from the applicant's failure to mention the 2013 incident, the first respondent is correct that the ground as it evolved and was articulated at hearing, namely that the Authority's conclusions were based on illogical or irrational findings, is not raised in terms by the Amended Application. However, I agree that even if it could be taken to have been raised (or been the subject of formal leave to add), that the Authority did disclose a legitimate basis for its finding that the 2013 incident did not occur and therefore any allegation in this respect fails: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] per Crennan and Bell JJ.

1. I am satisfied that he decision of the Authority is not affected by jurisdictional error as alleged, or at all. The application, as amended, must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Details removed so as to avoid any potential identification of the applicant

[2] Details removed so as to avoid any potential identification of the applicant

[3] Details removed so as to avoid any potential identification of the applicant

[4] Applicant's written submissions filed on 15 July 2021 at [7]

[7] Applicant's written submissions filed on 15 July 2021 at [8]