GUE18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 421

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 4 December 2018. The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa (visa) under s 65 of the Migration Act 1958 (Cth) (Act). This Court has jurisdiction to determine this matter pursuant to s 476 of the Act. The application for review has been brought within the time set out in s 477 of the Act.
2. The applicant is a male citizen of Pakistan, who applied for a protection visa on 22 October 2014, claiming to fear harm arising from two events central to his claim for protection. The first event was his alleged conversion from the Sunni sect to the Shia sect of Islam. The second event was the donation of a plot of land to a Shia organisation (Court Book (CB) 1).
3. The applicant alleged the Tribunal's adverse credibility findings were based on inconsistencies in relation to the two events described in the preceding paragraph which were based on a misconstruction of the evidence or on irrelevant findings about the nature of the organisation that received the donated land. The applicant also challenged the Tribunal's adverse credibility findings alleging the Tribunal failed to have regard to corroborative evidence.
4. For the reasons which follow, I find the applicant has not demonstrated a jurisdictional error.

1. The applicant appeared before the Tribunal assisted by his representative and an interpreter in the Punjabi language.

Evidence before the Department as to the Applicant's Claims

1. The Tribunal from [4] to [10], set out the evidence before the Department of Home Affairs (Department) which consisted of the applicant's protection visa application and attached documents and further statements to the Department dated 2 June 2015.
2. Relevantly, in the protection visa application, the applicant claimed to have been born into a liberal mixed Sunni/Shia family. The applicant, at an early age, adopted the Sunni sect. He later married a Shia woman. The applicant's father was a practising Shia who owned a plot of land, which after his death he wanted the applicant to donate to the Majlis Wahadat-ul-Muslimeen (MWM), so this organisation could build a Shia religious school. On 12 May 2014, the applicant was accepted into the Shia sect, after which time he started receiving threats from "local right-wing Sunnis". The applicant claimed after the death of his Shia father, he decided to fulfil his father's wish to donate the plot of land to the MWM for a Shia Islamic school. The applicant said he declined an approach from Sunni extremists from Sipah-e-Saba (Lashkar-e-Jhangvi) (SSP/LEJ) to sell them the land for a Sunni school. After this, two armed men entered his house on 5 June 2014, threatening to kill him if he did not give the land to SSP/LEJ. This prompted him to flee his house, and he left Pakistan to seek safety in Australia. The applicant alleged his wife later told him the situation had not improved in Pakistan, and she was still receiving threats the applicant would be killed once extremists got hold of him. The applicant said he feared harm if returned to Pakistan as he would be killed by SSP/LEJ.
3. The Tribunal noted at [7] of its reasons, that the applicant provided a First Information Report (FIR) dated 6 June 2014 regarding threats at his home on 5 June 2014; a letter from AIMS School System regarding the impact of threats against the applicant on his children's education; a letter from the Secretary General of the Bhalwal district MWM Pakistan (www.mwmpak.org) confirming the applicant was "accepted to the Shia sect 12-05-2014"; a police report dated 5 September 2014 stating they were unable to provide protection for the applicant's wife against ongoing threats; and a translation of a handwritten land transfer document dated 12 June 2014 regarding an "Oral Agreement" witnessed on 10 June 2014 and stamped on 20 June 2014 in Sargodha, Pakistan.
4. The Tribunal at [9] of its reasons, noted the applicant provided the delegate with a further statement dated 2 June 2015, which was provided by the applicant's agent (CB 166 to 168).
5. The Tribunal noted on 19 June 2018, the applicant's migration agent provided to the Tribunal further submissions and documents in support of his claim (CB 272). These documents consisted of country information (CB 273 to 312). The Tribunal noted the applicant's migration agent alleged the applicant feared serious harm if returned to Pakistan because of his Shia Islam religion and abandoned Sunni Islam religion, and membership of a particular social group of Sunni convert to Shia Islam and opponent of Sunni extremists. The migration agent identified websites and extracts of generic country information regarding killings of the Shia minority in Pakistan, including Shia converts, and the unavailability of state protection and relocation for the applicant.
6. The Tribunal noted at [14] and [15], various other documents provided by the migration agent.
7. At [20] to [26] of the reasons, the Tribunal noted it granted the applicant's migration agent further time to provide further submissions, which were provided.

1. The Tribunal accepted the applicant is a Shia Muslim, who may have come from a mixed Shia/Sunni family and followed the Sunni sect before adopting the Shia sect ([36] of the reasons).

1. The Tribunal found the applicant was not a credible and truthful witness because of various inconsistencies in his evidence and the unpersuasive nature of some key aspects of his claims, as follows.

"Conversion" to Shia Islam and donation of father's land for a Shia school

1. The Tribunal was not satisfied the applicant went through any formal "conversion" process or ritual to adopt the Shia sect, as claimed, for the following reasons ([48] of the reasons):

(a) The Tribunal found the applicant's evidence about his "conversion" was "contrived" and "inconsistent" in that the applicant initially, in his protection visa application, simply said he had been "accepted" into the sect on 12 May 2014 (CB 24), but later, in his statement dated 2 June 2025 talked about a "conversion ritual" (CB 167), and later, in his statutory declaration dated 21 June 2018, a "conversion process in the presence of two witnesses" (CB 324; [37] of the reasons). The Tribunal also noted at [39] of its reasons, in the applicant's post-hearing statutory declaration of 16 July 2018, he said, "since Shia and Sunni basically believes on Quran, Allah and Prophet Mohammed, there is no need for a structured conversion process similar to Islam to Christianity" ([39] of the reasons).

(b) The country information suggested there was no formal conversion process and a Sunni Muslim looking to convert to Shia Islam simply starts following the Ja'fari school of thought, observing Shia rituals and prayer ([38] of the reasons).

(c) The inconsistencies in the applicant's evidence as to the timing of when he became a Shia Muslim, being: initially, in his protection visa, he said he was accepted on 12 May 2014; he told the Tribunal and the Department he decided to become a Shia on the day he handed over the land for the Shia school on 10 June 2014; and in his statement of 2 June 2015, he said his conversion took place before he declined SSP's offer of money and donated the land to the Shia mosque.

1. The Tribunal did not accept the applicant had donated land to either the MWM or the Shia Mosque for a Shia school, as claimed, for the following reasons:

(a) The applicant's evidence as to MWM being a religious community organisation and not engaged in any political activity was inconsistent with Pakistani media reports indicating the MWM ran its own candidates in several provinces in the 2018 election and others formed alliances with the Pakistan Tehreek-e-Insaf, the party of the subsequently elected Prime Minister, Imran Khan ([45] of the reasons).

(b) The Tribunal had doubts as to certain documents provided by the applicant because it had regard to DFAT's advice document fraud is endemic in Pakistan ([47] of the reasons).

1. Therefore, the Tribunal was not satisfied the applicant was threatened or targeted by Sunni extremists from SSP/LEJ or that this prompted him to flee, live in hiding or leave Pakistan to seek asylum in Australia, nor that his wife has continued to receive threats for these reasons ([48] of the reasons).

1. The applicant's further amended application alleged the Tribunal failed to exercise its jurisdiction to properly assess the credibility of the applicant's claims or exercised it in a manner that was unreasonable. Two particulars were provided for this ground, as set out in [26] and [34] of this judgment.

EVIDENCE RELIED ON AT THE HEARING BEFORE THE COURT

1. The applicant, without objection, relied on the affidavit of Winne David of Legal Transcripts, who annexed a copy of the transcript of the hearing before the Tribunal (Tp).

1. It is helpful to identify the relevant legal principles that apply to challenging credibility findings made by the Tribunal.

Relevant Legal Principles as to Credibility Findings

1. The Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (McKerracher, Griffiths and Rangiah JJ) (CQG15) was considering when adverse credibility findings can give rise to jurisdictional error. At [38] the Full Court said:

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a) failure to afford procedural fairness;

(b) reaching a finding without any logical or probative basis;

(c) unreasonableness; and/or

(d) jurisdictional error as discussed by Flick J in SZVAP.

1. The observations at [38] in CQG15 were referred to with approval in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [64].
2. In SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP), Flick J considered in some depth whether findings as to credit can give rise to jurisdictional error_,_ relevantly at [14] to [23] of the judgment. At [22], His Honour referred to a number of instances where credit findings had given rise to jurisdictional error including:

Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 at 121, Robertson J also observed: [78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal's rejection of the entirety of an applicant's evidence and the entirety of the applicant's claim.

The Refugee Review Tribunal in that case had found the claimant had been "untruthful", including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant's account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 895 at [24] per Bromberg J. Jurisdictional error may also be exposed where the Tribunal applies "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], [2009] FCA 1470; (2009) 181 FCR 113 at 126 per Logan J. Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 437 at [54], [2002] FCAFC 437; (2002) 194 ALR 676 at 685.

1. In EVI19 v Minister for Immigration [2022] FCA 518, Stewart J stated at [36]:

It is well-established that credibility findings are not immune from judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [37] - [38] per McKerracher, Griffiths and Rangiah JJ. Credibility findings, like all findings, must be rationally made and based upon facts having logical and probative weight, and be articulated properly; minor inconsistencies and trivial errors do not constitute a valid ground upon which an adverse credibility finding may be made: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25] per Gordon J. See also DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30] per Kenny, Kerr and Perry JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11] per Allsop CJ.

1. Further, as the Full Court said in ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271, at [43]:

Simply (and incorrectly) attaching the label "inconsistent" to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

Particular (a) of Ground 1 - factually incorrect understanding of the evidence or an irrelevant finding about the nature of the organisation

The Applicant was brought up in the Sunni sect of Islam by his mother, although his father and many other members of his family belonged to the Shia sect. He claimed that his father had asked him to donate a parcel of land to a Shia religious organisation after he died. The Applicant claimed that he did so, and also joined the Shia sect. The Tribunal found this claim was false on the basis of what it said were inconsistencies in the Applicant's evidence. The Tribunal's findings were based on factually incorrect understanding of the evidence, or on an irrelevant finding about the nature of the organisation.

1. The applicant said (at [15] of his written submissions dated 11 February 2025) the Tribunal's finding as to inconsistencies involved a misconstruction of the evidence and/or was legally unreasonable. The Tribunal at [40] and [41] found the credibility of the applicant's claim to have donated a plot of land for a Shia school was "significantly undermined" by what the Tribunal considered were three inconsistencies, being:

(a) The applicant said he "decided to become a Shia on the day he handed over his land for the Shia School", then pointed out the date of the land transfer (10 June 2014) was a month later than his "claimed conversion" (12 May 2014).

(b) He had said in his statement of 2 June 2015 he donated the land to the Shia group before his "conversion".

(c) The organisation to which he donated the land was a political party, not a religious organisation.

1. The applicant submitted the first two claimed inconsistencies were reached by the Tribunal incorrectly reading the evidence. The applicant alleged in relation to the third matter outlined at [27(c)] of this judgment, the Tribunal did not provide any explanation as to why it considered that matter had any relevance to the applicant's claim.
2. To address whether the Tribunal's finding of inconsistencies was based on a factually incorrect reading of the evidence, it is first necessary to identify on what basis the Tribunal found there were inconsistencies in relation to the applicant's claim about the timing of the land transfer and the date of his decision to become a Shia. To that end, it is necessary to refer to [40] of the Tribunal's reasons and it is helpful, when doing so, to add the underlined bold numbering to reference in analysing the question of whether the Tribunal's findings as to inconsistencies were supported by evidence.

40. The applicant's evidence regarding the two events central to his claims - his alleged "conversion" and the handover of his father's plot of land for a Shia school - is significantly undermined by inconsistencies in his evidence regarding the timing of these events. [1] Throughout his protection visa process, the applicant identified the date on which he was accepted into the Shia sect as 12 May 2014 - and this was also given in the statements of the three witnesses. [2] He also told the Tribunal and the Department that he decided to become a Shia on the day he handed over his land for the Shia school. [5. Noted in the delegate's decision, p.5.] [3] Yet the date the applicant gave for this handover was 10 June 2014 - a month later than his claimed "conversion". These June dates also appear on the land transfer document which the applicant provided in support of his claims. [4] Moreover, in his statement of 2 June 2015, submitted to the Department after his interview, the applicant indicated that his "conversion to the Shia sect" had taken place before he declined the SSP's offer of money and donated the plot of land to the Shia Mosque (paragraph 9.c refers). These inconsistencies call into question the sequence of events that the applicant claims resulted in threats from Sunni extremists and raise serious doubts about the veracity of his evidence, as well as the supporting documents he provided.

1. The Minister contended contrary to what the applicant alleged that the Tribunal's findings as to inconsistencies were supported by the evidence.
2. Taking each factual finding, numbered in bold and underlined 1 to 4 inserted into [40] of the Tribunal's reasons, at [29] of this judgment, I find there was evidence which the Tribunal did not misconstrue to support the Tribunal's findings as follows:

(a) The Tribunal's first finding, being that "Throughout his protection visa process, the applicant identified the date on which he was accepted into the Shia sect as 12 May 2014 - and this was also given in the statements of the three witnesses", is supported by the applicant's statement annexed to his visa application, a copy of which is located at CB 23 to CB 26, where the applicant says, "I was accepted into the sect on 12/05/2014". A further statement, dated 2 June 2015, was provided by the applicant's migration agent, a copy of which is located at CB 165 to CB 168. The statement at CB 167 records the applicant saying, "I was accepted into the sect on 12/05/2014". The Tribunal's finding that the statement of the three witnesses also identified the date on which the applicant is said to have been accepted into the Shia sect as 12 May 2014, was based on the three documents, "Affidavit/Declaration", provided by the witnesses, copies of which are located at CB 258 to 262, which note the date as 12 May 2014.

(b) The Tribunal's second finding, being that "he also told the Tribunal and the Department that he decided to become a Shia on the day he handed over his land for the Shia school", is based on:

(i) In relation to the Department, CB 184, page 5 of the delegate's decision, notes the delegate says, "he states that on the day he gave the plot of land to the Shia school is the day he decided to convert".

(ii) In relation to the Tribunal, Tp 19.26, makes clear the applicant said to the Tribunal, "So when I handed this plot over, that's when I decided to become a Shia".

(c) The Tribunal's third finding, being "Yet the date the applicant gave for this handover was 10 June 2014", is supported by the evidence the applicant gave to the Tribunal at Tp 7.24, that "the plot was handed over to them on 10 June 2014". The Tribunal's finding, being that "These June dates also appear on the land transfer document which the applicant provided in support of his claims", is supported by the land transfer document the applicant provided in support of his claims, a copy of which is located at CB 173, which notes, on the right-hand side the date 10/06/2014.

(d) The Tribunal's fourth finding, being that "in his statement of 2 June 2015, submitted to the Department after his interview, the applicant indicated that his conversion to the Shia sect had taken place before he declined the SSP's offer of money and donated the plot of land to the Shia Mosque", is supported by evidence, being the statement made by the applicant on 2 June 2015, which is at CB 167, where he says: "this angered my Sunni friends who came to know about it. However, by that time not many people knew that I had converted to Shia sect. When I declined the offer of money of Sipah Sabah and donated the block of land to Imam Bargah Hussainia being run by Majlis Wahdat-ul-Muslimeen, the fact of my conversion to Shia sect became well known in the whole local community". I find from this evidence it was open to the Tribunal to find the applicant was saying the conversion happened first, he declined the offer of money and donated the land and then people found out about his conversion.

1. The applicant also complained that the Tribunal "gave no explanation as to why it considered the third" inconsistency it identified, being, at [41] to [45] of the reasons, the organisation to which he had donated the land was a political party, not a religious organisation, was relevant to the applicant's claims ([16] applicant's written submissions dated 11 February 2025). I find the Tribunal, in its reasons at [43], identified why it considered the inconsistency was relevant, being it raised concerns about the genuineness of the applicant's claims. The Tribunal said at [45], "the consistencies raise doubts as to whether the applicant has been truthful in his evidence regarding his involvement with the MWM". The Tribunal at [48] of the reasons said, in view of its concerns, which included the said inconsistency, it was not satisfied the applicant donated a plot of land to the MWM as claimed. At [53] the Tribunal further said, "As the Tribunal has not accepted that the applicant donated a block of land to the MWM or to the Shia Mosque, it is not satisfied that the SSP/LEJ targeted or threatened to kill the applicant because of this, as claimed earlier in his protection visa process". Therefore, it was open to the Tribunal to find the said inconsistency was relevant to assessing the applicant's claims, given that of central importance to his claim was that he had donated land to MWM, the Shia organisation which was a religious organisation for a Shia school.
2. To the extent the applicant alleged the findings in [40] were unreasonable, his argument rested on the Tribunal misconstruing the evidence. As I have found at [31] of this judgment there was no misconstruction of the evidence in reaching the findings at [40] of its reasons. Thus, the ground of jurisdictional error based on unreasonableness fails.

Particular (b) in Ground 1 - whether the Tribunal unreasonably failed to consider corroborative evidence

1. The applicant also contended that the Tribunal made findings about credibility that unreasonably failed to consider corroborative evidence. The applicant's complaint is in essence the Tribunal unreasonably rejected two pieces of corroborative evidence, being the "First Information Report" (FIR) and the evidence from the Advocate High Court (Advocate) in Pakistan, who alleged to have verified the FIR. I note the applicant was putting forward the said corroborative evidence to support his claim, as set out at [14] of the Tribunal's reasons that he went to the police on 8 June 2014, following an incident in which two men allegedly entered his property, held him and his family hostage and threatened him.
2. I reject the applicant's contention that the Tribunal unreasonably failed to consider the corroborative evidence, being the FIR and the Advocate's evidence, as it is clear from the Tribunal's reasons that it in fact considered the said evidence, as follows:

(a) The Tribunal at [54] of its reasons, stated it had regard to the FIR which was relevant to the alleged incident with the SSP/LEJ. However, the Tribunal did not attach weight to the FIR for two reasons. The first was that the DFAT country information recorded the prevalence of document fraud in Pakistan. The second was that there was a discrepancy between the version of the FIR submitted to the Department (CB 83 and 84) and that submitted to the Tribunal (CB 267), being the absence of a stamp of the "Police Station Bhalwal".

(b) At [55], the Tribunal noted the written statement from the Advocate certifying the FIR (CB 264). The Advocate was called by the applicant to give evidence before the Tribunal. The Tribunal noted the Advocate was asked several times to explain how he went about getting police verification of the FIR and he was unable to explain, beyond saying he "got confirmation from the police", "got police verification" and "went personally to the police and obtained confirmation". The Tribunal also noted, in its footnote at [13], the call with the Advocate was disconnected and the Tribunal tried to call the Advocate back but there was no answer, and the Tribunal obtained the applicant's consent to not reconnect with the Advocate. The Tribunal had regard to DFAT advice there are credible reports of Pakistani officials accepting bribes to verify fraudulent FIRs and did not attach any weight to the written statement of the Advocate in light of the DFAT advice and the evidence from the Advocate that he was unable to explain how he went about getting police verification.

1. The consideration by the Tribunal as identified in the preceding paragraph and its conclusion that it did not attach weight to the FIR was open to the Tribunal and provide an evident and intelligible justification for the Tribunal's reasons. Further, the applicant cannot demonstrate that the Tribunal unreasonably failed to consider the corroborative evidence of the FIR or unreasonably made credibility findings as to the Advocate for the reasons that it was open to the Tribunal to assess the FIR and the evidence of the Advocate as it did as recorded in the preceding paragraph. Thus, no jurisdictional error is disclosed.

1. As no jurisdictional error has been disclosed, the application must be dismissed.
2. I will hear the parties as to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.