FGC24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1385

1. By an application to show cause filed with the Court on 24 July 2024, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate (delegate) of the first respondent to not grant the applicant a Protection (subclass 866) visa (visa).

1. The applicant, a citizen of Pakistan, arrived in Australia with his grandfather on 4 March 2018 on a tourist visa (CB 148 to 149).
2. On 1 June 2018, the applicant and his grandfather made a joint application for the visa and raised separate but similar claims (CB 1 to 53). They claimed to have left Pakistan because they had been attacked multiple times in Karachi on their way to Sunday mass. When they attended separate interviews with a delegate on 4 February 2019, they claimed that unknown men had harassed and beat them at their home due to their Christian religion (CB 149 and 151).
3. On 20 June 2019, a delegate of the Minister refused to grant the applicant and his grandfather the visa. The delegate was not satisfied that they were persons in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act) (CB 148 to 159).
4. On 16 July 2019, the applicant and his grandfather applied to the Tribunal for review of the delegate's decision (CB 168 to 186).
5. On 27 March 2024, the Tribunal invited the applicant and his grandfather to attend a hearing scheduled for 23 April 2024, which was postponed twice (CB 193 to 196, 223, 226, 233 to 234).
6. On 9 May 2024, the applicant advised that his grandfather had passed away on that day (CB 235 to 236).
7. On 13 May 2024, the Tribunal invited the applicant to attend a hearing scheduled for 30 May 2024, which he attended with the assistance of an interpreter in the Punjabi language (CB 238 to 241, 243 to 245 and 249 to 252).
8. On 1 July 2024, the Tribunal affirmed the delegate's decision (CB 448 to 473).

1. The Tribunal determined that, because the grandfather had died, there was no longer a valid application for review before it and therefore it no longer had jurisdiction to review it (CB 449 to 450 at [8] to [12]).
2. The Tribunal recorded the applicant making a new claim at hearing that, during his employment at Engineering Facilities & Management Company (EFMC), he had been accused of disrespecting the Quran and his co-workers threatened to cut off his head, and that he left that job the next day. It recorded that there was a letter from EFMCA dated 3 months after the applicant left that employment and observed that his evidence explaining this was vague (CB 452 at [26] to [29]).
3. The Tribunal expressed concerns about the applicant's credibility and reliability as a witness for the following reasons. First, in relation to his employment incident claim, the Tribunal considered his evidence about what had occurred to be vague, inconsistent and implausible. It considered his evidence about how he obtained the EFMCA letter three months after he left to be vague and unconvincing, and his explanation for the delay in raising this claim. More specifically, that he did not have "proof" to be unconvincing especially where he had raised new claims at his protection visa interview without any proof. Furthermore, given that he had provided an abundance of country information about blasphemy allegations and their consequences, the Tribunal concluded that he had fabricated his employment incident to claim that he was the target of such an allegation (CB 466 to 467 at [119] to [122]).
4. Despite the applicant's claim to have been struck on the head which required stitches, the Tribunal observed that the photographs he had provided did not show his face or the injury he claimed to have sustained. It did not accept that, having gone to the effort to take photographs of the injuries of himself and his grandfather, he would have omitted to take a photograph of the injury to his head that required stitches (CB 467 at [123]).
5. The Tribunal considered the applicant's oral evidence about when he attended church to be vague and confused. This was because he consistently claimed that he was attacked while attending Sunday mass on 7 December 2017, which was a Thursday. When this was put to him, the Tribunal observed that his demeanour had changed markedly, he would avoid answering the question, and he eventually explained that he was attending "practice" for Sunday mass. The Tribunal did not accept that he would be mistaken in his recollection about the purpose of his attendance at church when he was first attacked and instructed to change his religion (CB 467 to 468 at [124] to [136]).
6. The Tribunal observed the applicant's oral evidence that "nothing happened" after the second attack to be inconsistent with his evidence at his interview with the delegate where he claimed to have been attacked at his home. It also observed that he had failed to mention these home-attacks at the hearing until he had been prompted, and that his explanation of what had occurred was generalised and lacked detail. Therefore, it did not accept that the home-attack claims were credible and rejected that they had occurred (CB 467 to 468 at [127] to [130]).
7. In relation to the medical documents dated 7 December 2017, the Tribunal observed that the applicant said he did not provide those documents and then said that he may have provided "one or two papers" but could not remember. It also observed that these documents were provided to it shortly after the delegate had relied on the absence of documents to make an adverse finding. The Tribunal put to him that document fraud was prevalent in Pakistan, the applicant denied the documents were fraudulent and the Tribunal otherwise observed that the handwriting and the doctor's name on the documents were largely illegible. It was troubled by the circumstances surrounding the medical documents and was not prepared to attach any weight to them (CB 468 at [131] to [138]).
8. The Tribunal recorded that it generally preferred the country information from Department of Foreign Affairs and Trade (DFAT), the UK Home Office, and organisations such as the Centre for Research and Security Studies (CRSS) to those provided by the applicant. It placed some weight on those provided by him but was conscious that some articles were divorced from his circumstances or related to areas outside of Karachi (CB 469 to 470 at [139] to [144]).
9. Overall, based on its credibility concerns, the Tribunal did not accept that the applicant was accused of blasphemy, disrespected the Quran, or was threatened at EFMC. It also did not accept that he or his grandfather were attacked on 7 December 2017, 25 February 2018, or at all in Pakistan, attacked at their home on any occasion, or that the police refused to register a case (CB 470 at [147]).
10. The Tribunal observed that the applicant had not claimed that he had or would proselytise or evangelise and found that he would return to Karachi where his father and fiancée lived. It accepted that he would be identified as a Christian and would attend church if returned but found that he did not have a profile as a religious leader and was not personally targeted before he departed Pakistan (CB 470 at [148] to [150]).
11. Turning to the country information, the Tribunal assessed that Christians faced a moderate risk of official discrimination and a moderate risk of violence throughout Pakistan. However, given that the risk of violence across Pakistan was not uniform, and where the risk in Karachi was such that, it could be regarded as safe for Christians, the Tribunal found that the risk of harm toward the Christian population as "remote" (CB 470 at [152] to [153]).
12. Taking into account the evidence that the applicant had been consistently employed as a graduate, had not been employed in low-paid or menial work like most Christians, and the letter from EFMC which suggested he was a good employee, the Tribunal did not accept that he would face a real chance of significant physical harassment, ill-treatment or economic hardship that would threaten his capacity to subsist. It also rejected that he would be denied access to basic services or a capacity to earn a livelihood that would threaten his capacity to subsist (CB 471 at [154]).
13. Having regard to country information, the Tribunal was satisfied that the prospect of the applicant being seriously harmed by sectarian violence was remote and did not rise to a real chance. It found, based on the decline of attacks against Christians since the mid-2010s and where Pakistan provided security to Christians in their places of worship, that Karachi could be identified as safe for Christians who did not have an elevated profile (CB 471 at [155] to [159]).
14. Based on the above findings, the Tribunal did not accept that the applicant faced a real chance of serious harm for any reason and was not satisfied that any non-violent harm he may be exposed to would be capable of amounting to persecution. It therefore concluded that he did not meet s 36(2)(a) or (aa) of the Act (CB 471 to 472 at [160] to [168]).

1. The applicant commenced these proceedings on 24 July 2024 by an application to show cause, raising a single ground of review. On 6 September 2024, a Registrar of the Court made orders for the preparation of the matter for hearing which was to be listed on a date to be advised to the parties. The applicant was given the opportunity, as part of those orders, to file an amended application no later than 14 days before final hearing. The proceedings were docketed to me on 7 February 2025 on which date I listed them for hearing at 2:15pm (AWST) on 8 May 2025.[1]
2. The applicant appeared at hearing on 8 May 2025 (first hearing) with the assistance of an interpreter in the Urdu language. In his application to show cause where, in the Court's prescribed form applicants are asked to specify whether an interpreter is required (and, if so, in what language) the applicant:

(a) ticked the box to indicate that he would require an interpreter; and

(b) in respect of which language, first wrote "Hindi" which was then crossed out and replaced with "Punjabi", which was also crossed out and replaced with "Urdu";

notwithstanding the fact that he had requested, and was provided with, the assistance of an interpreter in the Punjabi language at the Tribunal hearing.

1. At the commencement of the first hearing, the applicant made submissions to the effect that he had been having discussions with a particular law firm in Perth and also with certain asylum seeker legal resource centres. These submissions culminated in the applicant seeking an adjournment so as to obtain legal representation. The solicitor for the first respondent opposed the adjournment, submitting that the proceeding had been on foot since July 2024. In all the circumstances I was prepared to accede to a brief adjournment and made the following orders (May Orders)(emphasis in original):

1. The matter is listed for final hearing at 12:15pm (AWST)/2:15pm (AEST) on 12 June 2025 in court 13.1, level 13, 80 William Street, Woolloomooloo by Microsoft Teams.

2. The applicant must file and serve any Notice for Address of Service appointing a lawyer by 4:00pm AWST on 29 May 2025.

3. In the event the applicant complies with Order 2 above, the hearing event referred to in Order 1 will be converted to a directions hearing.

4. Costs of the adjournment referred to in Order 1 are reserved.

5. Liberty to apply on 2 days' notice.

THE COURT NOTES THAT:

A. A Microsoft Teams link will be sent to the parties shortly before the Court event, referred to in Order 1.

B. In the event that there is no compliance by the applicant in order 2, the Court will arrange an interpreter in the Urdu to be present at the final hearing, referred to in Order

1. Notwithstanding the May Orders, no Notice of Address for Service was filed by or for the applicant in that time, and other than his application. The applicant has not filed any documents in these proceedings. On 12 June 2025, the parties appeared before me again (second hearing). An interpreter in the Urdu language was again provided to assist the applicant. The interpreter was in the courtroom with me in Sydney. The connection to the Microsoft Teams hearing remained clear throughout and the parties did not have any difficulty in communicating with nor understanding one another, nor the Court.
2. At the commencement of the second hearing, the applicant made a further adjournment request which was opposed by the first respondent.
3. I accept the Minister's submission that a further adjournment to give the applicant the opportunity to identify and seek legal representation would not be consistent with the overarching purpose of the practice and procedure of this Court as encompassed within s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) following, so far as they apply in relation to civil proceedings and r 1.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
4. Given what transpired at the first hearing, I am not satisfied that the applicant's explanation that he had retained a lawyer who was simply unable to attend the second hearing is plausible. The May Orders would have signified to any reasonably competent legal practitioner that there was scope to adjourn (what would have been) a directions hearing, had an appearance been entered. Even giving the applicant, the benefit of the doubt, I am satisfied that he has received a more than reasonable opportunity to be legally represented at today's hearing, and that the regime encapsulated in the May Orders gave him the opportunity to retain a lawyer who would not have been required to appear at a final hearing today. In those circumstances there was no undue imposition to have prepared this matter quickly for hearing. I was not satisfied that there is any utility in giving a further opportunity of that nature.
5. The second hearing then proceeded. The Court Book (CB) was tendered at the 8 May 2025 hearing and marked Exhibit "1R". Despite the opportunity to do so, the applicant did not avail himself of the opportunity to amend his application nor did he file written submissions as directed.

1. In the absence of the applicant having availed himself of the opportunity to amend, the sole ground of review is that which is contained in the originating application, and provides as follows:

1. Contrary to the applicant's contentions the Tribunal did comply with its obligations under the Act which, by reference to s 422B of the Act consisted of an exhaustive statement of its natural justice obligations in Division 4 of Part 7 of the Act.
2. On 19 March 2024, the Tribunal exercised its discretion under s 424(2) of the Act to invite the applicant to provide information in a pre-hearing information form (CB 191). On 27 March 2024, the Tribunal invited him under s 425, in compliance with s 425A of the Act, to attend a hearing scheduled for 23 April 2024 (CB 192 to 196). That hearing was postponed on two occasions, and the Tribunal invited him again to attend a hearing scheduled for 30 May 2024, which he attended with a Punjabi interpreter (CB 249).
3. The first respondent submits, and I accept that, there was also no information that the Tribunal was required to put to the applicant for comment or response under s 424A of the Act. This is because the information that it relied upon to affirm the delegate's decision was his documentary and oral evidence he provided to the Department, the documentary and oral evidence he provided on review, and the country information before it, all of which fell within the exceptions of s 424A(3)(ba), (b) and (a) of the Act respectively.
4. For those reasons, and in circumstances where the applicant provided supporting material before and after the hearing, there can be no suggestion or inference that he was denied a real and meaningful opportunity to attend a hearing to give evidence and present arguments, or to present his case generally, including by reference to that obligation as it is understood by reference to the decision in: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37].
5. Again, as observed earlier by reference to the hearing information form, the duration of the hearing was relatively lengthy. It can be inferred therefrom that the Tribunal took detailed evidence from the applicant. There is no suggestion by the applicant that the Tribunal failed to have regard to the evidence that he gave at that hearing. The Tribunal's decision record shows that it also had regard to the material provided to it by the applicant after the hearing.
6. Otherwise, all of the procedures required of the Tribunal under the Act in relation to the manner in which it was to conduct the review, appeared to have been attended to by it.
7. Overall, I am not satisfied that there was a denial of procedural fairness, as alleged.
8. When given the opportunity to speak to the ground at hearing, the applicant made submissions which can be summarised as follows:

(a) the Tribunal made findings that there was insufficient evidence to corroborate the applicant's claims but he had "given them a lot of cases".

(b) the Tribunal "passed a judgment in a very short time, in a rush mode"; and

(c) the Tribunal did not look beyond the situation in Karachi.

1. In respect of the applicant's submissions at hearing regarding insufficient evidence, the solicitor for the first respondent submitted that the Tribunal had made its decision based on credibility concerns and certain independent country information which was before it. The Tribunal's reasons were also said to demonstrate that it comprehensively considered the independent country information which the applicant had submitted, in forming their assessment as to whether or not the applicant personally faced a real chance serious harm in Pakistan. I accept that submission.
2. The solicitor for the first respondent also submitted that the Tribunal did in fact identify that Christians could face harm in Pakistan. However, based on the independent country information before it, including the DFAT report, it considered that Karachi was a place in which the applicant would be safe as a Christian. Specifically, it should be observed that the Tribunal found that the chance of harm the applicant faced in Karachi as a Christian was remote. Once the Tribunal had made that assessment, the first respondent says that it was not necessary for it to look at the risk of harm in other parts of Pakistan.
3. In respect of the applicant's allegation which he made on several occasions during the hearing before me this afternoon, that there was an obligation on the Tribunal to look beyond the situation in Karachi, I reject that suggestion. That presumably is based on some assertion that the Tribunal had an obligation or a duty to inquire. There is no duty on the Tribunal, imposed by either the Act or at common law which requires it to inquire: see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15.
4. To the extent that the duty to inquire is said by the applicant to intersect in some way with relocation findings, it was not for the Tribunal to seek out places in Pakistan, from whence the applicant did not come, which might be unsafe for him. There is nothing in the authorities about relocation nor the duty to inquire which requires such a task to be undertaken.
5. In respect of the allegation that the Tribunal's decision was made in some haste, I have had regard to the Hearing Information Report contained in the Court Book (CB 249 to 251), from which the following can be discerned:

(a) the hearing took place before the Tribunal on 30 May 2024. The hearing commenced at 9:47am and concluded at 12:58pm;

(b) as noted already, a Punjabi interpreter was present to assist the applicant;

(c) by reference to the hearing date of 30 May 2024 and other documents in the Court Book, in particular the covering letter notifying its decision to the applicant and the decision itself, that the decision of the Tribunal was made on 1 July 2024, being more than a month after the Tribunal hearing took place;

(d) as the solicitor for the first respondent also points out, the application for review was filed with the Tribunal in 2019. Presumably because of the COVID-19 pandemic, there were some delays in the matter being heard, but as a result the proceedings were on foot in the Tribunal for at least five years during which time the applicant was free to provide as much information and evidence as he wished to the Tribunal before his hearing. The Tribunal also adjourned his matter on occasion, and ultimately the applicant was also given the opportunity to provide further material to the Tribunal afterwards, which he did.

1. In Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 103 (Kaur) at [50] and [51], I made the following observations:

50. In relation to this ground, the only submissions that the applicant did make again went to the merits of her case. The applicant says that she would to repeat this submission to the Court on a number of occasions (which she in fact did). The applicant says that she was a genuine student, attended her classes, paid her fees, did not breach her visa conditions, and that she was, "passing nicely". The applicant says that the "officer" (which I take it to mean the Tribunal) made a mistake. She said that a person in such a position should be responsible and should have taken time to consider the decision, but that the Tribunal did not do so. The applicant points to the fact that the Tribunal delivered an oral decision at the end of her hearing as demonstrating a lack of consideration. The Tribunal is entitled and empowered by s 368D of the Act to proceed to an oral decision. Much like the delivery of ex tempore judgments by Courts, it can be a useful tool, and often necessary in a high volume jurisdiction.

51. I asked the applicant to tell me what, other than the mere fact that the decision was delivered orally, might give rise to a legal error. The applicant said she did not have any submissions to make. Without more, the mere fact that the Tribunal proceeded to utilise the oral decision mechanism which is provided by the Act, does not give rise to a jurisdictional error. Perhaps, it is understandable that a lay person may consider that by the delivery of an oral decision, the matter has not been fully considered. However, that is not necessarily so.

1. In circumstance where there was more than a month between the Tribunal's hearing and the delivery of the Tribunal's decision and having regard to the matters that I considered in Kaur (supra), I am not satisfied that there is any jurisdictional error in and of itself by virtue of the fact that the Tribunal managed to produce a decision within a reasonably swift timeframe. In fact, that is generally desirable. In any event, having regard to s 430D of the Act, which applied at the time the Tribunal did make its decision, given that there is a mechanism by which it was perfectly acceptable, and the Tribunal had power to make an oral decision at the conclusion of the hearing. I find there to be no error in the fact that, albeit producing a written decision, the Tribunal did so in a timely fashion.
2. Accordingly, I am not satisfied that the ground of review as discussed at hearing gives rise to jurisdictional error on the part of the Tribunal.
3. The applicant is clearly unhappy with the outcome of the Tribunal's review. However, the fact that he disagrees with the decision is not indicative of either a jurisdictional error in the decision-making, nor is it indicative of any denial of procedural fairness. In fact, what is required, and it is well-established what is required, is a fair process, and not a fair outcome. To the extent that the applicant is dissatisfied with the decision to which the Tribunal came, that is understandable, however, it is not indicative of a jurisdictional error in and of itself

1. I am satisfied that the decision is free from jurisdictional error. Absent a jurisdictional error, the decision is a privative clause decision and must be dismissed. I will so order.
2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

[1] The hearing was initially to take place in Perth. However, because the Court ultimately was presided from Sydney, the hearing took place using Microsoft Teams.