AMM19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 159
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 159
File number(s): ADG 50 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 12 February 2025 Catchwords: MIGRATION – Judicial review application – Immigration Assessment Authority decision – citizen of Pakistan – whether failure to exercise jurisdiction – whether assessment of real chance of persecution in the reasonably foreseeable future – whether material jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 474, 476
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) rr 11, 12
Cases cited: AFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 491
AIE15 v Minister for Immigration and Border Protection [2018] FCA 610
AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168
AOX16 v Minister for Immigration & Anor [2019] FCCA 132
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
AQK17 v Minister for Immigration & Anor [2018] FCCA 3584
AWT22 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 925
BOT15 v Minister for Immigration and Border Protection [2018] FCA 654
BYH16 v Minister for Home Affairs & Anor [2018] FCCA 2051
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CDW18 v Minister for Home Affairs [2019] FCA 270
Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 26 July 2023 Date of hearing: 26 July 2023 Place: Perth Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Malik Lawyers Counsel for the First Respondent: Ms J Battiste Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 50 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 21 January 2019.
2.A writ of mandamus issue requiring the matter be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 13 September 2018, and to determine it according to law.
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).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
On 12 February 2019 the applicant, AMM19 filed an application for judicial review (“Judicial Review Application”) in the Adelaide Registry of the Court (then the Federal Circuit Court), under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). In October 2022 the Judicial Review Application was docketed to the now presiding Judge in the Perth Registry of the Court. At a directions hearing on 21 November 2022 the Court made orders, including orders allowing AMM19 to file and serve any amended Judicial Review Application. On 26 May 2023 AMM19 filed an amended Judicial Review Application (“Amended Judicial Review Application”)
The Amended Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) dated 21 January 2019 in which the Authority affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 13 September 2018 not to grant AMM19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
At hearing the Court Book (“CB”) was marked as Exhibit 1.
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
The background to this matter is as follows:
(a)AMM19 is a citizen of Pakistan: CB 10;
(b)AMM19 arrived in Australia on 28 September 2012: CB 50 and 94;
(c)on 8 February 2017 AMM19 lodged an application for a Protection Visa: CB 29;
(d)on 13 September 2018 the Delegate’s Decision (appearing at CB 156-180) was to refuse to grant AMM19 the SHE Visa; and
(e)on 21 January 2019 the Authority Decision (appearing at CB 219-232) was to affirm the Delegate’s Decision to refuse to grant AMM19 the SHE Visa.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)made findings accepting:
(i)AMM19’s religion, ethnicity and home area;
(ii)AMM19’s subjective fear of harm; and
(iii)AMM19’s educational history: CB 224 at [17];
(b)found that the information before it did not suggest any adverse attention had come to AMM19 or any member of his family as a result of their association with the music shop: CB 227 at [30], or that being educated per se led to a targeted attack: CB 225-227 at [24], [27], and [30];
(c)for reasons of credit, did not accept AMM19’s claims regarding personalised threats being made to him by telephone call or by letter either in Peshawar or Rawalpindi or that friends or associates in Rawalpindi received similar threats and some of them had been killed, kidnapped or disappeared: CB 225-227 at [21]-[28];
(d)accepted that AMM19 may have been one of many thousands Shia in Rawalpindi who received messages of sectarian hatred broadcast to the community, or that he was aware of those messages and of periodic attacks in Rawalpindi, and may have had genuine fear for his safety: CB 227 at [29];
(e)found that while there was no credible evidence that AMM19 or his family had ever been personally targeted, it accepted that Shia civilians in Parachinar had been targeted, that AMM19 may be readily identifiable to these groups as a Turi Shia Pashtun from Parachinar and that the Sunni militia may have assumed that AMM19 opposed their organisations: CB 227 at [29] and [31];
(f)considered the country information before it and concluded that it was not satisfied that AMM19’s subjective fear of harm if he were to return to Pakistan was well-founded and it was not satisfied that AMM19 faced a real chance of harm on the basis of being an educated Pashtun Shia Muslim from the Turi tribe in Parachinar: CB 227-230 at [32]-[44];
(g)was not satisfied that AMM19 suffered a real chance of harm as a returning asylum seeker or that potential disclosure of his personal details in an Australian Government data breach would materially change that: CB 230-231 at [45]-[49] and [52]; and
(h)was not satisfied that AMM19 had a well-founded fear of persecution and found that AMM19 did not meet the requirement of the definition of a refugee under ss 5H(1) and 36(2)(a) of the Migration Act: CB 231 at [53], and, for similar reasons, was not satisfied that AMM19 met the complementary protection provisions under s 36(2)(aa) of the Migration Act: CB 232 at [56]-[57].
SOLE GROUND OF JUDICIAL REVIEW
The Amended Judicial Review Application contains a sole ground of judicial review, as follows:
1.The Authority has failed to complete the exercise of its jurisdiction as it has not assessed whether there will be a real chance that the applicant would be persecuted in Parachinar in the reasonably foreseeable future.
SUBMISSIONS
The Court has had regard to the written submissions filed by AMM19 on 26 May 2023 and the Minister on 23 June 2023, as well as the oral submissions from each party recorded in the transcript of the hearing.
AMM19’s Submissions
AMM19 submitted that:
(a)the Taliban have been fighting for control of the Parachinar area (AMM19’s place of birth and home area) since 2007;
(b)AMM19 studied in Peshawar between 2006 and 2008;
(c)in April 2008 AMM19 was travelling towards Peshawar in a large convoy that was fired on by the Taliban. His section of the convoy turned back and drove to another town for safety however five people were killed and twenty injured in this ambush;
(d)in 2011 AMM19 moved to Rawalpindi to study. During this time he:
(i)started receiving telephone threats;
(ii)had unidentified callers tell him that he had to convert or he would be targeted or killed;
(iii)received such calls weekly and could not concentrate on his studies because he feared being attacked; and
(iv)received a threatening letter under his door on 5 November 2011. He took this threat seriously because the author or authors of the letter knew where he lived and he decided to leave Pakistan;
(e)after he arrived in Australia AMM19 applied for a SHE Visa claiming that he feared that if he were to return to Pakistan, he would be at constant risk of being attacked by the Taliban in the Parachinar area or whilst travelling on the roads;
(f)in the Delegate’s Decision the Delegate found that there was a high risk of harm to AMM19 in his home area, but found that AMM19 could relocate within Pakistan to avoid the risk of harm;
(g)the matter was referred to the Authority and in the Authority Decision it found that AMM19 could safely return to his home region in Pakistan: CB 229-230 at [39]-[44];
(h)in respect of complementary protection the Authority reasoned at CB 232 at [56] that AMM19 would not face a real chance of any harm on the basis that he is an educated Pashtun Shia Muslim from the Turi tribe in Parachinar with a mental health condition, who has previously worked in a music store, whose personal information was disclosed and who would return from a Western country where he sought asylum, and because “real risk” and “real chance” involve the application of the same standard, the Authority was also not satisfied that AMM19 would face a real risk of significant harm on these grounds for the purposes of s 36(2)(aa) of the Migration Act;
(i)the Authority failed to complete the exercise of its jurisdiction as it has not assessed whether there will be a real chance that AMM19 would be persecuted in Parachinar in the reasonably foreseeable future: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [13] per Gray, Tamberlin and Lander JJ; Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [27] per Heerey, Moore and Goldberg JJ; SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292; (2012) 134 ALD 495 (“SZQXE”) at [7] per Flick J;
(j)failure by a decision-maker to have regard to the chance of harm in the reasonably foreseeable future, for example by considering only the present or immediate future, may amount to a legal error: MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276 (“MZYXR”) at [22] per North J; Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 at [42] per Yates J; SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 (“SZGHS”);
(k)if a decision-maker concludes that there is no real chance of harm presently, it may be necessary to consider whether a change in circumstances which may readily be foreseen could result in a real chance of harm arising: SZQXE at [7] per Flick J;
(l)there is a distinction between the near future and the reasonably foreseeable future: BOT15 v Minister for Immigration and Border Protection [2018] FCA 654 at [59] per Markovic J;
(m)in the Authority Decision at CB 223 at [15] and [16] where the applicable law is summarised, the Authority makes no reference to the real chance of harm being assessed in relation to the reasonably foreseeable future. When it makes its finding that there is no real chance of persecution in Parachinar it makes no reference to the reasonably foreseeable future: contrast AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 where the Tribunal did refer to the foreseeable future in its summary of the applicable law and went on to conclude that the prospect that AMM19’s home region would remain peaceful in the reasonably foreseeable future was quite high and compare AWT22 v Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 925 (“AWT22”) where, as is the case here, neither of these factors were present; and
(n)the situation for the reasonably foreseeable future was a matter which had to be expressly addressed particularly given the concern expressed by Department of Foreign Affairs and Trade (“DFAT”) and European Asylum Support Office (“EASO”) as to whether the current situation was durable, the fact that the Authority accepted that it was clear that some of the underlying causes for insurgent and sectarian militancy in Kurram Agency, and Pakistan more broadly, remain unresolved, and that there remains a degree of fragility to the current security arrangements in Kurram.
Minister’s Submissions
The Minister submitted that:
(a)the scope of the ground of review is relatively narrow. The relevant requirements of the Authority’s assessment when considering whether a person has a “well-founded fear of persecution” are not controversial. The issue is whether the Authority Decision, properly construed, reveals a failure to comply with those requirements;
(b)AMM19 appears to be submitting that the Authority failed to properly assess whether he had a real chance of being persecuted in Parachinar because it did not consider the “reasonably foreseeable future”;
(c)the submission above appears to be predominantly based on the Authority’s failure to actually use the phrase the “reasonably foreseeable future” when summarising the law, or when making its findings that AMM19 had no real chance of persecution in Parachinar;
(d)the assessment of whether there is a real chance a person will be persecuted for Convention reasons if returned to the receiving country, “necessitates speculation in the sense of prediction, in other words, an assessment of the future”: Wu Shan Liang, CLR at 277 per Brennan CJ, Toohey, McHugh and Gummow JJ, commenting on the application of the test previously propounded by the High Court in Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”);
(e)it may amount to jurisdictional error to consider only the present or immediate future rather than the chance of harm in the reasonably foreseeable future: MZYXR at [22] per North J. Even where a decision-maker concludes that there is no real chance of harm presently, it may be necessary to consider whether a change in circumstances that may be readily foreseen could result in a real chance of harm arising: SZQXE at [7] per Flick J;
(f)a decision-maker is not required to refer explicitly to the phrase “reasonably foreseeable future” and it has been relevantly observed that this phrase is not a phrase which is used in the legislation: CDW18 v Minister for Home Affairs [2019] FCA 270 (“CDW18”) at [16] and [20] per Thawley J; AQK17 v Minister for Immigration & Anor [2018] FCCA 3584 (“AQK17”) at [40] per Judge Driver;
(g)the real question is whether there has been a forward looking or prospective assessment. It is also not necessarily determinative if a decision-maker refers to current risk and uses the present tense where the substance of the reasoning demonstrates a consideration of a future which included not only the immediate future but also more remote points: AOX16 v Minister for Immigration & Anor [2019] FCCA 132 at [15] and [24] per Judge Cameron; BYH16 v Minister for Home Affairs & Anor [2018] FCCA 2051 at [31] per Judge Street;
(h)also relevant are the observations approved by the High Court that a court should not be concerned with looseness in the language, nor with unhappy phrasing, of the reasons of an administrative decision-maker and that the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. A court must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(i)further in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60] per per Mortimer J:
[t]he “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience.
(j)past events are often a reliable basis for determining probability and are ordinarily an integral part of the process in assessing the chance of something occurring in the future: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ;
(k)the Authority Decision addressed whether there was a real chance AMM19 would be persecuted in Parachinar in its reasons: CB 227-230 at [32]-[44]. In those paragraphs, and also when read as a whole, the Authority reveals that it looked to the future and that it did not misunderstand the test;
(l)first, the language used including of the risk of harm AMM19 “faces”, “if he were to return” to Pakistan: CB 230 at [44] and CB 227 at [32], was indicative of a prospective assessment: AQK17 at [45] per Judge Driver and see also similar language used when assessing other claims: CB 231 at [49] and [52], and the use of “would face” when considering the complementary protection provision: CB 232 at [56];
(m)the Authority Decision refers to historical country information regarding Kurram Agency as “the site of decades of sectarian tension between Sunnis and Shias that has periodically catalysed into intense fighting”: CB 228 at [34]. The Authority referred to the violence flaring in 2007: CB 228 at [34], and the reasons why, and assessments that the security situation had improved significantly as a result of counter-terrorism operations commencing in 2014: CB 228 at [35]. The Authority referred to sources and its own analysis of data up to April 2018 in provinces in Pakistan, using terms indicating observations regarding an ongoing pattern of behaviour projecting into the future, and not merely the current situation, including:
(i)“escalation”, “spiked”, “declined”, “inversely opposite trend”: CB 228 at [35];
(ii)“continuing operations”: CB 229 at [40];
(iii)“longer term security trend”, “steady decline”: CB 230 at [43]; and
(iv)“changing country conditions”: CB 230 at [44],
(n)the Authority also considered and made findings on the recent and ongoing changes to the area including the lack of evidence of subsequent deterioration in security since 2017: CB 229 at [39], and the ongoing return of internally displaced persons: CB 229 at [40]-[41], tangible evidence of success in regaining public trust in the Pakistani government’s ability to provide durable security and “evidence of the significant diminishment of the capacity of the TTP and other sectarian militant groups to undertake attacks in Kurram Agency”: CB 230 at [43]. These were matters not only pertinent to the current or short-term situation in the area on AMM19’s return, but matters that ought relevantly be considered into the reasonably foreseeable future;
(o)the Authority also specifically considered and referred to:
(i)speculation by an unnamed third party source in a DFAT report speculating violence would likely increase again after a period of relative calm: CB 228 at [38];
(ii)submissions made by AMM19 that militant attacks come in waves where it is “good” for six months and then “bad” for the next six months: CB 229 at [43]; and
(iii)submissions made on behalf of AMM19 that certain statistics reflect the volatility and lack of a reliable pattern of stability in the security situation: CB 229-230 at [43];
(p)the Authority considered these matters but found it was clear that the frequency and severity of sectarian attacks had been reduced significantly over a number of years and the most recent attacks from the start of 2017 did “not appear to represent the commencement of a new pattern of violence or unrest” or “a reversal of the longer term security trend showing a steady decline in sectarian and other forms of violence”: CB 230 at [43];
(q)it is plain from the context of these observations, in particular in response to the matters raised by AMM19, that the Authority was considering not just the present situation but, as the assessment required, considering the situation into a reasonably foreseeable point into the future;
(r)the Authority was plainly not just making findings about what has occurred in the past and the present, but was placing weight on the trend of events as a predictive guide to the likelihood of events occurring in the reasonably foreseeable future. For example, unlike other cases where it was held that the decision-maker failed to make a prospective assessment, the Authority clearly extended its analysis into the reasonably foreseeable future by considering whether the attacks identified in 2017 were part of a continuing trend: compare AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 (“AIE15”) at [23] and [34] per Perry J where there had been a pattern of escalation and the Tribunal failed to consider whether they were part of a continuing trend. Also unlike another case relied on by AMM19, the Authority was clearly not avoiding considering the future by finding it was too speculative or early to make any conclusions: compare AWT22;
(s)AMM19 has not identified any other relevant evidence to suggest that the situation might change in a relevantly foreseeable way after his return to Parachinar that was not considered by the Authority. Nor is this a case, like one relied on by AMM19, where there was a specific claim not dealt with of a kind so that it could be inferred from the reasons that the Authority failed to address the reasonably foreseeable future: compare SZGHS;
(t)insofar as AMM19 complains about the way that the Authority summarised the test contained in ss 5H and 5J of the Migration Act at CB 223 at [15]-[16], there is nothing about the way the Authority summarised those sections which indicates that it considered the test did not require consideration of the reasonably foreseeable future: CDW18 at [17]-[18] per Thawley J; and
(u)the finding of the Authority was a finding open to it and to attempt to challenge that finding would be an impermissible intrusion into the factual merits of the case.
CONSIDERATION
Judicial review and the requirement for material jurisdictional error
The Court is cognisant that on judicial review:
(a)the Authority’s fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant's claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)it ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [35] per Gummow ACJ and Kiefel J; and
(c)it must read the Authority Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J.
For present purposes it otherwise suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ (and see now LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610; (2024) 418 ALR 152 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
Relevant statutory provisions
Section 5H(1) of the Migration Act states:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Section 5J(1) of the Migration Act states:
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
Ground 1
Under s 5J(1)(b) of the Migration Act the real chance of persecution occurring is to be considered as “if the person returned to the receiving country”. This requires the decision maker to consider what may take place in the future, rather than what occurred in the past: Chan.
In Wu Shan Liang the High Court observed with respect to:
(a)the “real chance” test, that the correct test was whether there was a real chance that an applicant would be persecuted for a Convention reason were the applicant to return to the receiving country at the time of the administrative decision or within the reasonably foreseeable future: CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
(b)the assessment of the chance of the occurrence of a future event, at CLR at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ, as follows:
As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
In Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court observed that:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In any, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
In assessing whether an applicant has a well-founded fear of persecution for one of the Convention reasons the Authority is entitled to weigh the material before it and make findings prior to considering if an applicant’s fear of persecution is well-founded: Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In circumstances where the Authority’s findings are not made with sufficient confidence then the Authority may need to consider whether their findings are incorrect in determining the applicant’s well-founded fear: Wu Shan Liang; Guo.
In the context of a requirement to be satisfied with respect to the real chance that something may or may not occur, questions of weight and the assessment of the material before the Authority, and whether, for example, material is contradictory, are matters for the Authority: Wu Shan Liang, CLR at 281–282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The want of use of the phrase “reasonably foreseeable future” in the Authority Decision is not an error. As has oft been observed the question is not whether those words were employed in the Authority Decision but, rather, whether the Authority made the required forward looking assessment: AIE15 at [33] per Perry J; AFR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 491 at [66] per Judge Driver.
Ultimately, the Authority was required to assess AMM19’s claims by reference to the reasonably foreseeable future, not just the immediate future or the present situation: AIE15 at [26] per Perry J; SZGHS at [2] per Allsop J; EMM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1214; (2023) 384 FLR 148 at [92] per Judge Forbes.
There is no doubt that, as the Minister submits, the Authority thoroughly canvassed the history of incidents of violence in and near Parachinar in recent decades, and particularly since 2007. The Authority at CB 227-230 at [32]-[43] referred to, for example:
(a)the long-term unrest and violence in AMM19’s home region;
(b)Kurram Agency having been the site of decades of sectarian tension between Sunnis and Shias that has periodically catalysed into intense fighting;
(c)the arrival of the pro-Taliban Pakistani militias in 2007 causing violence to flare again in Kurram Agency, and there being significant fighting between Sunni and Shia militias;
(d)that Parachinar, the capital city of Kurram Agency had a predominantly Shia population, but also had particular strategic value to the Sunni militants as it was was a vital passageway between Pakistan and Afghanistan;
(e)that country information indicated that the security situation in the former Federally Administered Tribal Areas (“FATA”) (including the Kurram Agency) has improved significantly as a result of the Pakistan Armed Forces’ continuous counter-terrorism operations that commenced in 2014 and that Pakistani sectarian militant groups have been greatly weakened by the successive military operations undertaken in the FATA, and that violence in the FATA has declined;
(f)the Pakistani pro-Taliban groups, in particular, have shown that they have regrouped in Afghanistan, and were able to carry out a series of high profile and complex attacks in 2017 by infiltrating inside Pakistan with the help of local sympathisers, and that this saw a sharp spike in violent, sectarian attacks by Sunni militants in Kurram reported in the first part of 2017, with three large-scale attacks targeting Shia civilians in Parachinar carried out by sectarian Sunni militants in January, March and June 2017, which highlighted the vulnerability in the security arrangements that were in place in Kurram Agency at that time, particularly for Shias;
(g)that in September 2017 DFAT reported that the Pakistan Armed Forces took control of Parachinar’s checkpoints and DFAT’s assessment at that time was that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, was higher than in other parts of the FATA;
(h)that the 2017 DFAT Report also cited unnamed third-party sources speculating violence would likely increase again after a period of relative calm;
(i)that the 2017 DFAT Report also noted that the splintering of pro-Taliban militant groups meant that their capacity for cohesive campaigns of coordinated attacks had been reduced, but that this had also resulted in a larger number of smaller groups competing with each other, potentially resulting in more nimble and unpredictable security threats. EASO made similar observations in August 2017 that the reduced capacity of militant groups to carry out large scale attacks has led to an increase in more targeted attacks on individuals;
(j)that both DFAT and EASO expressed some caution about the prospects for durable security arrangements in Kurram Agency in their 2017 reports, they both noted the significant drop in sectarian and other violent incidents and casualties in Kurram in the second half of 2017;
(k)the South Asia Terrorism Portal noting in an April 2018 report that there did not appear to have been any further sectarian attacks on Shias in Parachinar, or the FATA more widely, since June 2017;
(l)there being no other evidence indicating that there has been any subsequent (to June 2017) deterioration in the security landscape in Kurram Agency or the FATA more broadly;
(m)that country information did not indicate that, since June 2017, Shias in Parachinar had been unable to conduct rituals, attend festivities and shrines or observe specific holidays, such as Muharram, or that militants had used these or any such high profile public event to conduct attacks on Shias;
(n)the continuing operations of the United Nations Office for the Coordination of Humanitarian Affairs in Kurram Agency in monitoring the return of more than 22,000 families to their homes in Kurram, many of whom had been displaced since the conflict escalated in 2008, and that DFAT’s September 2017 report confirmed large numbers of internally displaced persons returning to Kurram;
(o)none of the information provided by AMM17 indicating that there has been any further violence against Shias in Kurram or Parachinar since the three attacks in the first half of 2017, or that the security situation in Parachinar (or Kurram Agency more broadly) had deteriorated in 2018;
(p)the fact that some of the underlying causes for insurgent and sectarian militancy in Kurram Agency, and Pakistan more broadly, remain unresolved, and that, despite significant improvements, there remains a degree of fragility to the current security arrangements in Kurram;
(q)the scale of the violent unrest and the frequency and severity of sectarian attacks in the FATA has been reduced significantly, over a number of years, and that the absence of further militant actions after the three attacks in Parachinar in the first half of 2017 suggests those unfortunate incidents do not appear to represent the commencement of a new pattern of violence or unrest, or that the three 2017 attacks in Parachinar amount to a reversal of the longer term security trend showing a steady decline in sectarian and other forms of violence in the FATA; and
(r)in the context of the more recent history of the area, the absence of any ongoing attacks for what may now be regarded as a sustained period indicates a significant reduction in the risk of harm.
The Authority’s consideration of the material and its findings as set out in the previous paragraph led it to the conclusion at CB 230 at [44] that:
In light of the information before me, particularly that of the changing country conditions in Parachinar, I consider the chance of the applicant being killed or otherwise harmed for the reason of being an educated Pashtun Shia Muslim from the Turi tribe in Parachinar is remote. I am not satisfied the applicant faces a real chance of harm on this basis.
A difficulty with the Authority Decision at CB 227-230 at [32]-[44] is that whilst it canvasses the history of the violence against Shias in Parachinar, in Kurram and in the former FATA more generally to June 2017, and then the lack of significant violence until the time of the Authority Decision in January 2019, that is all it does. It is a narrative setting out that there has been a history of such violence in and around Parachinar to a point in time (June 2017), that nothing like that has happened from June 2017 to January 2019, and a conclusion that therefore AMM19 does not face a real chance of rele vant harm if he returns to Parachinar. It cannot simply be assumed that the Authority’s reasoning is “based on circumstances that would continue into the future”: that “is essentially question-begging”: Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 at [42] per Yates J.
The Authority Decision does not engage in any objective determination as to what it considers might happen in the future in the Parachinar to which AMM19 might return. There is a specific failure, for example, to engage with and assess:
(a)whether there might be a recurrence of the long-standing history of cyclical violence in Kurram, resulting in further major incidents such as those that occurred in Parachinar as recently as the first half of 2017 (that is less than two years before the Authority Decision);
(b)whether cyclical, sporadic or targeted violence, might re-occur after a period of relative calm, as at least one DFAT source suggested;
(c)the possible future threat, particularly to individuals, from the emerging smaller, more nimble and active, pro-Taliban militant groups;
(d)whether the fact that there had been no deterioration in the security situation in Parachinar in 2018 reduced the risk of harm from 2019 onwards; and
(e)whether or not, in any event, any significant reduction, or downward trend, in the risk of harm meant that there was not a real chance of suffering harm later in 2019 or in the early to mid 2020s.
The Authority did not engage in the process of assessment by reference to the reasonably foreseeable future. Rather it did so by reference only to the present situation, and possibly the immediate future. In that regard it fell into error.
Materiality
The error made by the Authority was material, and therefore jurisdictional, because had the Authority engaged in a process of assessment of whether there was a real chance of harm if AMM19 returned to Pakistan by reference to the reasonably foreseeable future, rather than the present situation, and possibly the immediate future, then there was a realistic possibility that a different outcome might have eventuated: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; LPDT at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.
CONCLUSION AND ORDERS
The Court has concluded that the single ground of the Amended Judicial Review Application has been made out, and that the error thereby disclosed is material. It follows, therefore, that the Authority Decision is affected by jurisdictional error. Writs of certiorari and mandamus will accordingly issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 13 September 2018, and to determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 February 2025
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