COH25 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1783

1. The name of the first respondent is amended to 'Minister for Immigration and Citizenship'.
2. The application is dismissed.
3. The Court orders the applicant to pay the first respondent's costs in the sum of $5,400.00.
4. Orders 2 and 3 above are stayed until the applicant receives a written record of the oral ex tempore decision delivered by the Court on 30 September 2025 by email to his email address.

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).

1. This is an application for a constitutional writ within the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) ("the Act") in respect of a decision of the second respondent, the Administrative Review Tribunal ("the Tribunal") made on 4 February 2025 affirming a decision of the delegate of the first respondent ("delegate"), Minister not to grant the applicant a protection (subclass 866) visa ("protection visa"). The applicant is a citizen of Pakistan who arrived in Australia on a student visa on 21 April 2010. The applicant did not apply for a protection visa until 15 March 2019.
2. The applicant claimed to fear harm as a result of a marriage to a Pakistani woman in 2013 that he left in Pakistan, and who then made allegations as to infidelity, and in respect of whom she obtained a divorce in a Pakistani Court on 30 July 2015. The applicant claimed to have received threats of harm from his ex-wife's family, and related threats from other persons, and fears that he will not be able to obtain assistance from police or law enforcement because he says Pakistan is, in general, corrupt.
3. On 18 June 2019, the applicant attended an interview at the department in relation to his visa claims and application. On 10 October 2019, the delegate refused the grant of the visa. On 6 November 2019, the applicant applied for review and, as is disclosed on page 79 of the Court book that was admitted into evidence as exhibit A the applicant provided a copy of the delegate's decision to the review Tribunal. The applicant submitted a number of documents on 23 and 25 January 2025 in support of his application, and he was represented at the hearing before the Tribunal on 30 January 2025 and was assisted by an Urdu interpreter. On 4 February 2025, the Tribunal affirmed the delegate's decision.
4. The Tribunal summarised the background to the application for the protection visa and set out the relevant criteria for the grant of a protection visa. The Tribunal identified that it was up to the applicant to provide sufficient evidence to establish the protection obligations. The Tribunal, having identified the applicant's background, accepted that the applicant returned to Pakistan and married a particular person in February 2013. The Tribunal referred to the applicant's evidence about the breakdown of the relationship and allegations being advanced in support of the divorce application. The applicant identified communications between him and the ex-wife ceased in July 2013, and in his protection visa, he made reference to the ex-wife informing him over the phone that she wanted a divorce in 2015.
5. The Tribunal identified the inconsistency in that regard and asked the applicant about that inconsistency in the course of the hearing. The Tribunal identified the concern about the applicant's narrative surrounding the breakdown of events and referred to the inconsistency just identified. The applicant sought to blame his then solicitor for incorrectly recording the claims. The Tribunal noted such an explanation had not been raised during the interview and noted that the delegate had also referred to the inconsistency between the narratives presented. In that regard, the Tribunal found the applicant's explanation for the inconsistency unpersuasive and was not satisfied that his claims were incorrectly recorded and did not accept his evidence in that regard. The Tribunal also referred to the divorce and reasons in respect of the making of the divorce order, which asserted that the applicant had married someone else abroad. The applicant contended that that was a lie and that the applicant had not married another person.
6. The Tribunal found it hard to reconcile the applicant's evidence with the record provided in respect of the decision, being the translated divorce judgment. The Tribunal referred to concern in relation to the location of the place where the ex-wife had been living and the inconsistency in relation to the communications assertion. The Tribunal referred to the allegations of threats after the divorce and identified the generalised terms about the threats made and referred to assertions from the ex-wife's mother and sister that he cheated and that they will not spare him. The Tribunal referred to the alleged male voice calls in December 2015 and January 2016. The Tribunal referred to the applicant's evidence as to when that call was made and his assertion that he would be tortured or killed if he returns to Pakistan. The Tribunal raised with the applicant the passage of time since the divorce of the ex-wife and expressed concern about the general and vague nature of the threats asserted.
7. The Tribunal turned to the delay by the applicant in applying for protection and the applicant's explanation in relation to that delay related to completing his student visa and a suggestion he was unaware of his ability to apply for a protection visa. The Tribunal was not satisfied with the applicant's hopes of a favourable outcome in respect of his student visa or that he even believed he would succeed and found it did not adequately explain the delay for the protection visa, nor did the Tribunal accept the applicant's explanations about communications with a legal practitioner explaining the delay, nor did the Tribunal accept the applicant's assertion of a lack of awareness about the ability to apply for a protection visa. The Tribunal found the applicant's evidence to be persistently vague and elusive and found the applicant to be an unreliable witness who lacked credibility.
8. The Tribunal referred to a statement from a friend of the applicant's which evidence the Tribunal found to be vague and unconvincing. The Tribunal referred to the issue of whether the applicant faces a real chance of harm arising out of or in relation to his divorce from his ex-wife. The Tribunal accepted that there was a social stigma associated with divorce. The Tribunal was prepared to accept that the ex-wife has now married an army officer. The Tribunal found the applicant's evidence not to be credible or reliable. The Tribunal referred to the divorce judgment and was not satisfied on the contents of the evidence, individually or cumulatively, that the applicant faces real chance of harm from the ex-wife, her family or associated persons either now or in the reasonably foreseeable future.
9. The Tribunal was not satisfied threats were made. The Tribunal did not accept the applicant received a call from an unknown person using an unknown number that was a threatening call. The Tribunal was not satisfied there being any other ongoing threats of harm if the applicant were to return to Pakistan. The Tribunal was not satisfied that the ex-wife's new husband would use his position in any way to expose the applicant to a real chance of harm if he were to return to Pakistan. The Tribunal was not satisfied that the ex-wife or husband have any desire or intention to harm the applicant. The Tribunal found the applicant does not face a real chance of harm from either person now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant would have an adverse profile with the authorities in Pakistan or the TPP. The Tribunal was not satisfied the applicant faces a real chance of harm from any such profile.
10. The Tribunal was not satisfied that if the applicant were to return to Pakistan, he would face a real chance of harm because he does not communicate with his mother or siblings. The Tribunal did not accept that the stigma faced by the applicant would lead to a real chance of harm from people in and around his village in a particular area. The Tribunal was not satisfied the applicant faced a real chance of harm, let alone serious harm, having considered the applicant's claims cumulatively, upon returning to Pakistan. The Tribunal found that if the applicant were to return to Pakistan, he would not face a real chance of harm either now or in the reasonably foreseeable future. The Tribunal considered the applicant's claims individually and cumulatively and was not satisfied the applicant faces a real chance of harm, let alone serious harm, in relation to the non-exhaustive examples in the Act.
11. The Tribunal was not satisfied the applicant has a well-founded fear of persecution within s 5J(1) of the Act. The Tribunal found the applicant is not a refugee within the meaning of the Act. In s 36(2)(a) of the Act, the Tribunal found that it was not satisfied that the applicant would face a real chance of significant harm, and that the applicant failed to meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.
12. The grounds in the application are as follows:

Ground 1

The Tribunal failed to comply with s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.

Particulars

1. The Tribunal in para 29 raised an adverse issue the applicant had told to the delegate of the Minister during the departmental interview. This is an 'information' which should have been put to the applicant under s 359 A of the Migration Act.

2. The Tribunal in para 50 discussed about the delay in seeking protection and the explanation the applicant has given to the delegate of the Minister during the interview.

Ground 2

The Tribunal conducted the hearing in a manner that would cause a reasonably well-informed observer to conclude that the Tribunal had reached a decision prior to the hearing that was not amenable to change regardless of the documentary and oral evidence submitted by the Applicant.

The applicant has submitted and informed to the Tribunal he was assisted by Ms Sophie Manera of Rothstein Lawyers in Western Australia. The applicant has mentioned that he applied for a protection visa based on the strong recommendation of her. The applicant alleged that Ms Manera failed to advise him what documents he had to provide to the Department. Through his submission, the applicant submitted he was not given proper professional guidance by Ms Manera. The Departmental documents with the Tribunal will reveal that Ms Manera terminated her services after the Departmental interview.

It should be noted that Ms Manera is a current Member of Administrative Review Tribunal (ART) attached to Western Australia ART Registry. The Tribunal member in the applicant's case is also attached to the ART Western Australia. The Tribunal member in the present case, failed to advise the applicant regarding possible conflict of interest since the applicant's previous representative and the applicant's Tribunal member are working together in the same Tribunal in the same registry. The Tribunal should have advised the applicant and explained and altered the applicant before conducting the member. Failure to that, it is submitted creates a perception to a reasonable minded person that this case may not have been assessed with open mind and raised apprehended bias.

1. At the commencement of the hearing, the Court explained to the applicant with the benefit of an interpreter the nature of the hearing, and then heard submissions from the applicant, and heard submissions on behalf of the respondent, and then heard submissions from the applicant in reply. The applicant made reference to the second ground in his application about his practitioner becoming a member of the Tribunal, in respect of which the decision-maker in the present case was a member of the same Tribunal. The applicant said that he was not saying that the member did anything wrong, but that it did not appear right and that he should have been informed. The applicant did not identify any conduct by the member beyond the fact that his former lawyer had been appointed to the Tribunal.
2. The Minister put submissions in relation to both grounds. On the first ground, the Minister said there was no information enlivening any obligation under s 359A of the Act, and in relation to the second ground, the Minister submitted that there is nothing identified to support the assertion that the Tribunal had a closed mind in the determination of the matter, and that there is nothing to support that the Tribunal engaged in any conduct that could meet the criteria of apprehended bias. The Minister also submitted that there was no logical connection between the appointment of the counsel to the Tribunal and the allegation advanced as to why the Tribunal would not bring an independent and impartial mind to the determination of the matter on its merits.
3. In relation to ground 1, the Court accepts the Minister's submissions that the inconsistencies that were identified were not information of a kind that enlivened any obligation under s 359A of the Act. The applicant provided with his application for review the delegate's decision, which fell within the type of excluded information under s 359A(4) of the Act. The reasoning of the Tribunal is also not information of a kind that enlivens any obligation under s 359A of the Act. The Court accepts the minister's submissions and finds that no jurisdictional error is made out by ground 1.
4. In relation to ground 2, there is nothing before the court to suggest that the Tribunal member did other than approach the conduct of the review with an open mind reasonably capable as to persuasion on the merits. There is no material before the Court that identifies any conduct by reason of which any assertion of actual bias could be made out. In relation to apprehended bias, the mere fact that a practitioner is appointed to the same Court as a decision-maker is not a basis upon which a reasonably informed lay observer might reasonably apprehend that the Tribunal member might not bring an independent and impartial mind to the determination of the matter on its merits. The detailed reasons of the Tribunal in the oral hearing and reasoning in respect of the inconsistencies are all inconsistent with the assertion that the Tribunal engaged in anything other than a determination of the matter on the merits. No jurisdictional error as alleged in ground 2 is made out.
5. The applicant in his oral submissions also maintained that the submissions that he had put to the Tribunal were true. This Court is not engaged in a review of the matter on its merits. The Court has no power to do so. The applicant's disagreement with the adverse decision by the Tribunal is in substance an invitation to merits review. This Court has no power to review the merits. Nothing said by the applicant identified any jurisdictional error.
6. It is for these reasons the Court makes the above orders.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.