EPD24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 640

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 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. By an application to show cause filed with this Court on 4 July 2024, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 11 June 2024, which affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant him a Protection (Subclass 866) visa (visa).

1. The following background is derived from the written submissions of the first respondent, and the material in the Court Book. Unless otherwise indicated, it does not appear to be in dispute. Some locations have been described generally, so as to limit the possibility of identifying the applicant and his brother (B), in the spirit of s 91X of the Migration Act 1985 (Cth) (Act).
2. On 1 April 2018, the applicant and B arrived in Australia as the holders of tourist visas (Court Book (CB) 14 and 118).
3. On 23 April 2018, the applicant and B lodged protection visa applications, with the assistance of a registered migration agent (CB 1 to 27). They claimed to have been targeted by extremists in Pakistan because they each had high profiles as Shia community leaders, that B had received phone calls in September 2017 threatening him if he did not remove a Shia (Alam) flag from their family home. They also claimed that on 28 March 2018, they had both escaped being shot at by 3 men who threatened them, and their family moved to another (named) place as a result (the March 2018 incident).
4. On 16 January 2019, the representative of the applicant and B submitted supporting documentation to the Department (CB 65 to 79)
5. On 22 January 2019, the applicant and B attended an interview with the delegate (CB 119).
6. On 29 January 2019 and 5 February 2019, the representative for applicant and B provided the delegate with further documents (CB 85 to 113).
7. On 7 May 2019, the applicant provided the delegate with an uncertified copy of the death certificate pertaining to the father of the applicant and B (CB 113 and 121).
8. On 9 September 2019, the delegate refused to grant the applicant (and B) the visa (CB 118 to 137).

1. On 23 September 2019, the applicant and B sought review of the delegate's decisions in the Tribunal (CB 138 to 139).
2. On 19 March 2024, the Tribunal invited the applicant and B to provide further supporting material and to complete pre-hearing information forms (CB 143 to 149).
3. On 18 April 2024, the Tribunal invited the applicant and B to attend a joint hearing, scheduled for 17 May 2024 (CB 150 to 153).
4. On 24 April 2024, the applicant and B provided completed hearing invitation forms and consented to the Tribunal holding a joint hearing (CB 155 to 157).
5. On 17 May 2024, the applicant and B attended the scheduled hearing (CB 211 to 213).
6. Prior to the hearing, the applicant and B provided:

(a) country information (CB 158 to 210); and

(b) a discharge summary from a hospital pertaining to B (CB 227 to 232).

1. On 11 June 2024, the Tribunal affirmed the delegate's decision (CB 220).

1. The Tribunal set out the claims and evidence of the applicant and B (CB 222 to 227 at [15] to [18], [22], [33] to [36]).
2. The Tribunal made the following findings:

(a) it accepted that the applicant and B were citizens of Pakistan, and that Pakistan was their receiving country (CB 227 at [32]);

(b) the applicant and B were Shia Muslims of the Jafari sect and had a Syed family background, however, there was no information that being a member of Syed ethnic group or Jafari increased the risk of harm to Shias (CB 228 at [39]);

(c) the Alam flag was displayed at their home, however, this did not increase their risk of harm (CB228 to 229 at [42] to [43]);

(d) the applicant and B's biological father had not been threatened because of his religious belief, noting that he had suffered heart complications during a Shia festival and died in 1980 (CB 229 at [45]);

(e) the applicant and B's family were the first Shia family in their home area and played a significant role in building the Shia community, the Tribunal found they were involved in organising Shia religious processions but had not faced major issues in that place because they were Shia (CB 229 at [46] to [47]);

(f) their family was known to other religious leaders and Shia communities outside their local area (CB 230 to 231 at [54]);

(g) the Tribunal was not convinced that the applicant and B were appointed or held official roles as Shia religious community leaders or engaged with the Shia community in that capacity due to their lack of involvement in any ongoing community religious events or affairs outside the months of Muharram and Safar. It did not accept that they were prominent religious leaders and considered that they had exaggerated their roles and status to strengthen their claims (CB 231 at [55] to [57]);

(h) the Tribunal considered it plausible that B had received anonymous telephone calls in September 2017. Based on country information however, the Tribunal did not accept that the callers were members of extremist militant groups. This was because there had been government operations to curb militant activities and a reduction in targeted Shia killings. The Tribunal also observed that no action had been taken against the applicant or his family after their non-compliance with the callers' demands and there was no evidence that other members of the Shia community or leaders received the same treatment. It therefore concluded that the callers may have been members of the Sunni community who were unhappy with the activities of the Shia community (CB 232 at [61] to [64]);

(i) the Tribunal had serious concerns about the credibility of the March 2018 incident claims, the same anonymous callers tried to harm the applicant and B. It had concerns about the authenticity of a police document and a newspaper article provided in support of that claim and noted that country information indicated document fraud in Pakistan was common and widespread. The Tribunal also had concerns about the three Affidavit documents provided, because the authors did not appear to have witnessed the incident to which they were deposing and two of the deponents had not indicated how they became aware of the claimed incident (CB 232 to 234 at [64] to [74]);

(j) the Tribunal observed that neither the applicant, B nor the Alam flag were of concern to the attackers given that they had not approached their family members who reside at the family home. It took the view that the lack of any inquiries made about the brothers and that no further threats had been made to their family members about taking down the flag undermined the credibility of their claim that they were targeted by extremist groups (CB 234 at [75] to [76]);

(k) based on its credibility concerns and country information, the Tribunal did not accept that the March 2018 incident had taken place, nor that the applicant and B's family moved to a named place because of that incident. Despite their claimed Shia profile, it also did not accept that the applicant and B were personally known to (or targeted) by members of extremist groups, or that they were of adverse interest or had any adverse profile to those groups or the Sunni community prior to their departure (CB 235 at [79] to [82]);

(l) the Tribunal recorded DFAT information which assessed that Shias in Pakistan faced a moderate risk of sectarian violence, but that the situation had improved considerably. It observed that there had been a decline in sectarian violence and targeting of Shias by militant groups in recent years, and that those groups had shifted their focus to attacking authorities and tribal and political leaders. It also observed that there was no credible evidence that the applicant and/or B, their family members, or members within the Shia community had encountered any incidents of harm or discrimination by reason of their religion. It was therefore not satisfied that the applicant and B faced a real chance of harm (CB 235 to 240 at [83] to [100]);

(m) after a comprehensive analysis of relevant country information, the Tribunal did not accept that the Pakistani authorities were aware that B had sought asylum in Australia. It also noted that returnees in a similar situation to him were not attributed with any adverse political opinion or targeted by authorities or militants. Furthermore, although it accepted that B had suffered a cardiac arrest on 24 January 2023 and that their family had a history of heart conditions, it found that this information did not assist in its assessment of whether the applicant or B faced a real chance of harm because of their religion. It also accepted, based on the applicant and B's own evidence at hearing, that they did not have a political profile, did not fear any harm on that basis if returned, and did not face a real chance of any harm on that basis if returned (CB 240 to 241 at [101] to [105]); and

(n) overall, the Tribunal was not satisfied that either the applicant or B met s 36(2)(a) or (aa) of the Act (CB 241 at [106] to [112]).

1. As noted above, these proceedings were commenced on 4 July 2024. On the same date, B commenced separate judicial review proceedings in this Court in which he was given the pseudonym "EPE24". The respective proceedings travelled together for case management purposes, with a view to them being listed consecutively for hearing.
2. On 30 August 2024, a Registrar of the Court made orders which included that the proceedings would be listed for final hearing on a date to be advised, together with some procedural orders for the preparation for that hearing.
3. On 10 March 2025, the proceedings were docketed to me. On the same date and I listed them for hearing today and made further orders for the preparation for that hearing which included an additional opportunity to amend. These proceedings were listed to be heard consecutively with B's judicial review application.
4. On 21 March 2025, a Notice of Discontinuance was filed by B, which had the effect of concluding his judicial review proceedings. While the first respondent filed separate Court Books in the respective brothers' proceedings, a single set of written submissions were filed for the first respondent to address the applications jointly. Ultimately, upon the discontinuance of B's proceedings, regard has been had only to the aspects of those submissions which are relevant to the instant case.
5. Despite having twice been given the opportunity to amend, the applicant has not done so. Accordingly, the grounds of review are those that are included in his originating application as follows (errors in original):
   1. The Tribunal erred in failing to find that the second respondent did not consider evidence that corroborated the appellant's claims

Particulars

a) The appellant claimed to have been the subject of an attack by militants in Pakistan on 28 March 2018

b) The appellant provided corroborating evidence of the attack; namely:

1. Frist instance Report made to the Pakistan police on 10 April 2018
2. News article that describes the incident reported.
3. Affidavits of members of Shia community confirming the attach and surrounding circumstances.

1. The Tribunal having made the findings about the incident that it may have occurred but place little weight in relation to the other factual claims, gave no evidentiary weight to the corroborating evidence.
2. In the circumstances, the Tribunal was required to specifically address and make findings in relation to the corroborating evidence, rather than incorrectly rely upon country information and give no evidentiary weight to the corroborating evidence.
3. The Tribunal failed to consider that the applicant is marked person as opposed to a general member of the Shia community and carry real risk of being attacked for his defiance to the demands of the militants.

1. The applicant appeared before me this morning for hearing as scheduled. He is unrepresented but was assisted throughout the hearing by an interpreter in the Urdu language. The first respondent is represented by Counsel. I confirmed with the applicant and the interpreter that they could understand one another. As the Tribunal recorded in its decision, the applicant is also reasonably fluent in English. At hearing the applicant said that he wished to conduct the hearing in English, utilising the interpreter only as needed. There were some moments during the hearing where it was preferable to have the interpreter intercede. I also ensured that each of the grounds of application were interpreted to the applicant, so that he could have an opportunity to properly address them in turn.

1. It is convenient to consider grounds 1 and 2 together because of the manner in which they were addressed by the applicant at hearing.
2. The applicant alleges that the Tribunal erred by failing to consider certain evidence, which is particularised at ground 1(b) of the application as falling into two categories:

(a) the first instance police report (FIR) and a news article; and

(b) Affidavits of members of the Shia community.

1. In respect of the FIR and the news article, at hearing today the applicant essentially alleged that there was a duty on the Tribunal to make further inquiries as to the veracity of those documents. The applicant said that this would have been easily verifiable by the Tribunal by consulting the police station which had issued the FIR report and, that the news article was an article from a national newspaper and, therefore, it would also have been easy to verify that it was genuine.
2. As the first respondent submits, the Tribunal's reasons demonstrate it considered the relevant claims and documents submitted in support: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582. I agree. In particular, the following findings bear this out:

(a) the Tribunal considered the police document where it expressed its concern about its authenticity, noting that various important details and features were omitted, and that the date of the document contradicted the applicants' claim that they had paid a police officer to lodge a report on the system the day after March 2018 incident (CB 233 to [67] to [68]);

(b) it then had regard to the news articles and expressed concerns about their authenticity, noting that various important details and features were missing, that they reproduced information contained within a claimed temporary police report which was issued on 10 April 2018 while the applicant and B were in Australia, and there was no explanation as to how media outlets obtained such information (CB 233 at [66] to[67] and [69] to [70]); and

(c) it also had regard to the three Affidavits which referred to the claimed incident, noting that the authors did not appear to have witnessed the incident happen, that 2 of them did not indicate how they became aware of the incident, and that the authors' opinion that it was not safe for the applicant and B was not based on any independent evidence (CB 234 at [73] to [74]).

1. The applicant told the Court said that he and B had limited resources, and they had obtained whatever documents they could from Pakistan in the circumstances. By contrast the applicant said that the Australian authorities have a "much better ability to get more information about those things at their level".[1] Counsel for the first respondent made submissions that the Tribunal was not required to make independent enquiries in respect of the police report nor in respect of the newspaper article, citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 (SZIAI).
2. The test arising from SZIAI requires that to establish error of the kind the applicant alleges he must establish that there was an obvious inquiry about a critical fact, the existence of which was easily ascertainable.
3. In the case of both the FIR and the newspaper article, I am not satisfied that such a duty arose.
4. The very basis upon which those documents were rejected was that they were not considered to be genuine based on detailed reasoning, including as to the prevalence of document fraud in Pakistan. The Tribunal discussed that information with the applicant at the hearing. The Tribunal identified various indicia that the documents might also not have been genuine, including the absence of details from the FIR such as the address of the police station and, in the case of the newspaper article, the absence of the name and date of the newspaper.
5. The absence of such basic and intrinsic identifying information in those documents, by definition, renders them as not giving rise to obvious inquiries, much less about critical facts. Given there was no obvious source for either of the documents was a basis upon which it was clearly open to the Tribunal to make the findings it did. Accordingly, I am not satisfied that there was any duty to inquire in respect of the FIR report and the newspaper article, and that the ground as it was addressed before the Court today, does not give rise to any error.
6. The other documents the subject of this ground are the Affidavits deposed by members of the Shia community. The applicant says the Tribunal found the Affidavits to not be genuine.
7. However, that is not borne out by the reasoning of the Tribunal. Rather, the reasoning of the Tribunal was that the deponents of said Affidavits were not, in fact, witnesses to the events in respect of which they purported to evidence. The Tribunal recognised that the deponents of the Affidavits were said to be Shia leaders, and referred to their respective credentials and relationships to the applicant and B (CB 224 at [17]). This included an understanding on the part of the Tribunal that the deponents were religious leaders involved in the Shia community, which was reflected in the way that the applicant described them in a letter to the Tribunal (CB 108). I am satisfied that there is no error in the manner in which the Tribunal dealt with the Affidavits, nor because it was not prepared to accept the Affidavits as being probative of the matters to which they purported to go. Those findings were open to the Tribunal.
8. It will be obvious from the fact that the Court has now considered the manner in which the Tribunal gave detailed consideration to the documents which are particularised in ground 1(b)(iii), that the ground itself as pleaded i must fail because the very basis upon which it was raised was that there was a failure on the part of the Tribunal to consider that evidence at all. Clearly, that is not borne out on an even basic reading of the Tribunal's reasons for decision. Rather than failing to consider the evidence, the applicant's complaint in truth is that the Tribunal failed to accept his claims. For all of the above reasons, ground 1 is not made out, and nor is ground 2 which the applicant confirmed on several occasions turns upon the same complaint as ground 1.

1. By ground 3 the applicant alleges the Tribunal was required to make specific findings in relation to corroborative evidence, rather than relying on country information. The manner in which this ground was developed at hearing gave rise to a complaint by the applicant that, in essence, the Tribunal relied upon country information in coming to its conclusion that he was not a person to whom Australia owed protection obligations.
2. The basis for the complaint is said to be that the situation in Pakistan is much worse than what emerges from country information, particularly information about religion and politics. The applicant says that information released on those topics involves deliberate attempts on the part of "the powers that be" in Pakistan to ensure that information does not "get out",[2] such that independent country information about Pakistan conveys an inaccurate impression and, by relying upon it, the Tribunal misinformed itself and incorrectly found that the applicant was not at risk of the requisite levels of harm.
3. The first respondent says the Tribunal did not find that the March 2018 incident "may have occurred". Rather, it did not accept the March 2018 incident took place (CB 235 at [79]). This was based on its serious credibility concerns about this claim, having regard to:

(a) the applicants' evidence at hearing that their family had returned to their home and the Alam flag was still raised (CB 234 at [75]);

(b) the lack of evidence of any follow up incidents from the alleged extremists (CB 234 at [76]); and

(c) country information which indicated an improvement in Pakistan's security situation (CB 234 to 235 at [77] to [78]).

1. In response to this ground, Counsel for the first respondent says it is to be understood as a complaint about whether or not independent country information could be trusted, which was characterised by the first respondent as a complaint about merits, being a matter exclusively for the Tribunal. The first respondent also noted that by the statutory declarations of the applicant and B, they referred to their own independent country information submitted to support their claims to be at risk of harm as Shias in Pakistan (CB 70 at [47] in respect of the applicant and CB 79 at [49] in respect of B). Counsel for the first respondent submitted that the applicant and B had also submitted independent country information of their own to the Tribunal (CB 158 to 210), which it expressly identified at [22] of its reasons for decision (CB 225 to 226).
2. The Tribunal's review of independent country information was said by the first respondent to be extensive and to include references to DFAT reports and also to a range of sources. I agree with that characterisation.
3. It was a matter for the Tribunal exclusively as to both the source of the country information to which it had regard, as well as the weight to apply to that information: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] to [13] per Gray, Tamberlin and Lander JJ. I also accept the first respondent's submission that the Tribunal was not required to make a finding on every piece of evidence: see NAHI (supra), Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] to [7] per RD Nicholson J and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [39] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ.
4. To the extent that the ground alleges that independent country information cannot be relied upon because it paints an inaccurate picture of the situation, that does not give rise to a jurisdictional error. At most, that could be a factual error on the part of the Tribunal. It is well established that in such circumstances, that this does not give rise to a jurisdictional error in and of itself. The Tribunal was entitled to source for itself the country information to which it would have regard and the manner in which it reasoned based on that country information does not, in my view, give rise to any error as alleged or at all. Accordingly, I am not satisfied that ground 3 is made out in the manner alleged in the originating application, nor as it was developed by the applicant in court today.

1. By ground 4 of the application, the applicant alleges the Tribunal failed to consider that he was a "marked person" of the Shia community and that this carried with it a real risk of his being attacked by virtue of the defiance by he (and also B) of the militants in question. When asked to address this at hearing, the applicant says that the issue was to what extent the applicant and B were themselves Shia leaders in various areas in which they and their family resided.[3] The applicant said that the Tribunal did not accept that he and B were in the leadership roles to the extent they claimed, despite he and B having organised events in various cities and that the Tribunal wrongly assumed that the applicants could relocate.
2. The first respondent says that the Tribunal's reasons demonstrate that it considered the claimed role and profile of the applicant and B in the Shia community, but did not accept that they held a prominent or leadership role based on their own evidence that they was not involved in any ongoing religious events or affairs, nor that they maintained any continued major role within the community, outside of the months of Muharram and Safar (CB 231 at [55] to [57]).
3. Further, the first respondent says the Tribunal's conclusion (CB 240 at [100]) that there was no real chance that the applicant or B would be targeted or attacked by militants was open to it and demonstrates consideration of whether the applicants faced a real risk of harm. I accept that submission, particularly in light of:

(a) the Tribunal's findings on the applicant's and B's role within the Shia community and profile: (CB 231 at [55] to [57]);

(b) its rejection that B was threatened by or that he and the applicant were attacked by militants and that no action had been taken against them for not complying with the demands to take down the Alam flag (CB 235 at [79] to [82]); and

(c) its comprehensive analysis of country information which indicated that militants were targeting security and law enforcement personnel and tribal and political leaders (CB 239 at [95]). Further, whilst the DFAT report referred to a "moderate risk" of harm the glossary provides that this term merely refers to there being "sufficient incidents to suggest a pattern of behaviour."

1. Counsel for the first respondent submitted it was open to the Tribunal to make the findings it did as to whether it accepted that the applicant and B were Shia leaders in their community. The first respondent's also says that, while it could be understood that the applicant disagreed with the conclusions to which the Tribunal came, each of the Tribunal and the delegate were entitled to reach the conclusions they did (albeit on different bases), but the fact that there was a discrepancy between the reasons of the delegate and the Tribunal did not give rise to an error in and of itself. It was also submitted for the first respondent that, unless that reasoning was wrong, it was not a matter for the Court to set it aside because of the applicant's disagreement, nor would it be appropriate even if the Court disagreed with the reasoning, unless it was legally unsound.
2. It is true that the delegate and the Tribunal reasoned on different bases. The delegate accepted that there was a real chance that the applicants would face persecution in their home areas but that it was open to them to relocate (CB 128). By contrast, the Tribunal did not accept that the applicants' claims had a proper basis, that they had received calls from members of extremist groups, that they were targeted nor that the alleged March 2018 incident took place. In its ultimate conclusions, the Tribunal found there to be no credible evidence before it that family members of the applicants (or any other members of the Shia community in the relevant areas) had encountered incidents of harm due to their religion. The Tribunal considered the overall profile of the applicant and B, including their lack of personal involvement with the militias in the past and its rejection of the earlier claims, and was not satisfied that there was a real chance that they would be targeted or attacked by militants or by the Sunni population for any of the reasons claimed in their home area or, in fact, at all.
3. The Tribunal concluded that the chances of the applicant suffering harm due to sectarian violence or religiously motivated attacks was no more than remote. Accordingly, while it can be accepted that there is a difference between the reasons of the delegate and the Tribunal. As I explained to the applicant at the hearing, this Court has no jurisdiction in respect of the decision of the delegate. Section 476(2A) of the Act excludes from this Court's jurisdiction an ability to review a primary decision, which the delegate's decision was.
4. Overall, I accept the first respondent's submissions made at hearing today and in writing in relation to how ground 4 was initially raised in the application. Ground 4 is not made out.

1. While I can understand in all of the circumstances of the case that the applicant disagrees with the findings that were made by the Tribunal, I am satisfied that they were open to the Tribunal to make based on the material before it. Accordingly, I am not satisfied that there is any jurisdictional error as raised in the application, or at all. Absent a jurisdictional error, the decision of the Tribunal is a privative clause decision and must be dismissed.
2. I will so order.

1. Consequent upon my dismissal of the application, counsel for the first respondent seeks an order that the applicant pay some part of the first respondent's costs fixed in the sum of $6,500. When asked to speak to whether or not costs should follow the event and, if so, in what amount, the applicant made submissions to me to the effect that he is not in a position to pay any amount. The applicant says that he has been ill for the last one and a half years, which is part of the reason that he is unrepresented today.
2. The applicant also made submissions to the effect that he is still paying fees to a previous lawyer. This representation appears to be unrelated to these proceedings as the applicant has been unrepresented since their commencement. The applicant explained that he owes said lawyer somewhere between $30,000 to $35,000 and is continuing to pay that amount in instalments. While I can understand the applicant's submissions about his impecuniosity, that is not ordinarily a basis upon which costs would not be ordered in circumstances where they should follow the event and where they represent a reasonable amount which is a proper indemnity of the first respondent's costs. If the applicant is unable to pay costs as ordered by this Court, it will form a debt to the Commonwealth.
3. As I explained to the applicant, he will receive correspondence in due course from the solicitors for the first respondent, which will explain to him at whom at the first respondent's Department he can speak in respect of applying for either a reduction of any costs order, time to pay and/or, potentially, the ability to pay in instalments. For as long as the costs order is not paid, it will simply remain as a debt to the Commonwealth and the applicant should inform himself as to the potential consequences of departing Australia with such a debt in place.
4. In all of the circumstances in this case, I am satisfied that costs should follow the event. I am also satisfied that the amount sought is reasonable.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] Transcript dated 28 March 2025 at T18.4 to 6

[2] Transcript dated 28 March 2025 at T10.21 to 26 and T11.3

[3] See [3] above in respect of generalisation