AXD21 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AXD21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1232

File number(s):	PEG 277 of 2023
Judgment of:	JUDGE STREET
Date of judgment:	18 November 2024
Catchwords:	MIGRATION- IAA – application for constitutional writ- no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	73
Date of hearing:	31 October 2024
Place:	Perth
Counsel for the Applicant:	Mr A McBeth
Solicitor for the Applicant:	Estrin Saul Lawyers
Counsel for the First Respondent:	Mr T Lettenmaier
Solicitor for the First Respondent:	Sparke Helmore
For the Second Respondent:	The Second Respondent did not appear

ORDERS

PEG 277 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AXD21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	18 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The amended application accepted for filing on 8 October 2024 is dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $7400.

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 STREET

1. These proceedings were commenced on 24 November 2023 in which the applicant seeks a constitutional writ in respect of the decision of the Immigration Assessment Authority (IAA) made on 23 October 2023.

   BACKGROUND

2. The applicant is a citizen of Pakistan who arrived in Australia on 13 July 2013 and lodged an application for a Safe Haven Enterprise visa on 6 March 2017. On 9 April 2018, a delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.  On 18 August 2018, the IAA, differently constituted, affirmed the decision, and that decision was quashed and remitted by the Federal Court of Australia on 9 August 2022.  A differently constituted IAA again affirmed the decision on 17 November 2022, and that decision was quashed, and the matter was remitted by a decision of the Federal Circuit and Family Court of Australia (Division 2) made on 11 August 2023.

   IMMIGRATION ASSESSMENT AUTHORITY DECISION

3. The IAA, in its reasons, summarised the background to the application for review and identified having regard to the information given by the Secretary under s 473CB, and accepted that there were exceptional circumstances to justify considering identified new information.  The IAA referred to the practice direction in respect of submissions and noted that submissions were provided in 2018 and 2022 and identified having regard and accepting the September 2023 submissions, being the most recent arguments and country information, in support of the applicant's case.

4. The IAA identified the new information that was cited or attached to the 2018 and 2022 submissions and, in respect to two articles two 2018 New York Times articles and a 2015 document - was not satisfied that there were exceptional circumstances to justify considering that new information.

5. The IAA made reference to the applicant fearing risk from radical militants and discriminatory authorities in the Punjab region, given he had spent four years in a Western country which resulted in a change in his characteristics, and was satisfied this was a new claim - but was not satisfied that there were exceptional circumstances to justify considering this new information.

6. The IAA referred to new country information attached to the 2022 submissions and how there were exceptional circumstances to justify considering that new information.  The IAA referred to new country information received with the August 2023 submissions and identified it was satisfied there are exceptional circumstances to justify considering that new country information.

7. The IAA identified receiving further submissions in September 2023 and identified new country information that post-dated the delegate's decision.  Referring to reports concerning information about the applicant's area of Kurram District and reports about recent developments in the security situation there and an update on recent negotiations between the Taliban and Pakistani government, and identified that there were exceptional circumstances to justify considering that new country information.

8. The IAA also identified receiving new country information in relation to the security situation in Taliban, and found there were exceptional circumstances to justify considering this new country information that was identified in footnote 1 of the IAA's reasons.

9. On 29 September 2023, the IAA invited the applicant to an interview on 12 October 2023, which the applicant attended with his legal representative.  At that interview, the applicant provided new information regarding his claims in response to questions put, and the IAA was satisfied that there were exceptional circumstances to justify considering the new information.

10. At the end of the interview, the IAA gave the applicant an opportunity to provide any further information or response, and on 20 October '23 the IAA received a submission on behalf of the applicant which concerned legal argument in relation to concerns raised with the applicant about his evidence, and the IAA identified having considered those submissions.

11. The tribunal, in its reasons, summarised in dot points the applicant's claims - which, relevantly, first identified the particular village in Kurram Agency in the Khyber Pakhtunkhwa Province (KP) in which the applicant was born, and that he is a Pushtun Mangal-Janikhel Sunni Muslim citizen of Pakistan.

12. Relevantly, in that summary, the IAA referred to the applicant's brother being kidnapped from the applicant's shop in June 2013, and the leader allegedly wanting to see the applicant.  The next dot point identifies the applicant, realising danger, decided to flee Pakistan immediately, asserting he knew the Taliban would not kill his brother for his actions and that they had to eventually free him.  The applicant alleged that when he left Pakistan in June 2013, the Taliban tortured his brother, but that elders of the village intervened and secured his release in return for a ransom amount and an assertion of an assurance that his brother would hand the applicant over to the Taliban.

13. The claim identified the brother was released when the applicant arrived in Australia.  The applicant referred to Shia customers helping him escape from Taliban.  The applicant identified he fears being seriously harmed, or killed in Pakistan by the Taliban, and their allies, actually, don't put in the commas.  Just he fears being seriously harmed or killed in Pakistan by the Taliban and their allies because he defied their demands by continuing to assist the Shia community.

14. The applicant's statutory declaration referred to having a cousin called Ayub, who has links to the Taliban and informed the Taliban of the applicants' dealings with the Shia people.  The applicant feared his cousin will cooperate with the Taliban and that the Taliban will locate him in Pakistan.  The applicant alleges his cousin holds a grudge against the applicant and his family because the applicant was more successful in life than him and his family.

15. The applicant identified he feared the Taliban and his cousin will seek to kill him or harm him so that the applicant does not seek to avenge the abduction of his brother and loss of property. The applicant also feared harm as a Pashtun Mangal-Janikhel, tribe member.  The applicant identified he could not relocate to other areas of Pakistan.  The second-to-last point identified that the applicant has lived in Australia and will face greater risks of harm from the Taliban as they label failed asylum seekers to be a spy of Westerners and infidels.  The applicant also fears harm from Sunni militant groups who are active in Kurram. 

16. The IAA identified the relevant law and was satisfied that Pakistan was the applicant's country of reference.  The IAA noted that the applicant affirmed his brother was still in their village and there was no information to indicate his wife and children had moved, and the IAA was accordingly satisfied the applicant would if the applicant were to return to Pakistan, he would very likely return to his village of Kochi, where he lived the entire time, he was in Pakistan. 

17. The IAA accepted that the applicant had had his own shop and had Shia customers.  The IAA referred to country information about sectarian violence and both al-Qaeda fighters and Taliban targeting paramilitary forces, referring to truck drivers being abducted and beheaded, and that since summer of 2007 much of the Shia population of Lower Kurram were expelled to Upper Kurram, while much of the Sunni population in Parachinar were forced to Lower Kurram.  The IAA referred to the Pakistani Taliban ruling the roost in Kurram and turned the Lower Kurram into their bastion, and that particular sectarian strife that occurred from 2007 to 2011. 

18. The IAA accepted the applicant's claims in relation to the Shia community being besieged and struggling to access goods and accepted that he continued to supply them because it was a source of income, and accepted that the Taliban warned the applicant to stop his business with the Shia community, and that he continued to supply them goods.  The IAA found the applicant gave credible account of having developed a long business relationship with the Shia community.  The IAA was also prepared to accept that in 2013 the applicant's brother was kidnapped by the Taliban and held for ransom and released once the ransom was paid. 

19. The IAA referred to the applicant mentioning this during the entry interview and then made express reference to country information that was before the delegate also indicating that militants were relying on criminal activities, such as kidnapping for ransom, to finance their operations.

20. The IAA did not, however, accept that the applicant's brother was kidnapped because of the applicant's cousin informing the Taliban of the applicant's continued business dealings with the Shia community.  The IAA identified significant discrepancies in relation to those claims.  The IAA did not accept that the applicant that the applicant provided a reasonable explanation - did not accept there was a reasonable explanation for the number of discrepancies, which the IAA did not consider to be insignificant.

21. The IAA referred to the applicant's new claim that people he had hired to deliver goods to the Shia community were captured by the Taliban.  The IAA referred to the applicant's statement where he alleged the Taliban found out about his activity from his cousin, and that the applicant had not raised the new claim before.

22. The IAA referred to the evidence given by the applicant at the interview, in which the applicant claimed his cousin had been regularly passing information about his dealings with Shias to the Taliban, but that the Taliban eventually had evidence after they captured his drivers and that they kidnapped his brother the next day.  The IAA was not satisfied with the applicant's explanation of why his narrative of events changed at the interview, and found the omission of any reference to kidnapping drivers in his statement to be significant.

23. The IAA identified the information provided by the applicant at the protection visa interview in relation to calls from the Taliban and the information he provided to the IAA in its interview in which he said he had not been directly contacted by the Taliban, and that this was different to what he had claimed in his statement and in the protection visa interview.  The IAA did not accept that the applicant could not remember whether the Taliban called him after kidnapping his brother, and referred to the applicant as being emphatic that they did not call him.

24. They referred to the applicant's statement about selling everything to pay for his brother's ransom and his escape from Pakistan.  Whereas the applicant told the IAA he had plenty of money in his account from successful business.  The IAA was not satisfied with the applicant's explanation and did not accept the applicant's reference to "selling everything" in his statement, that he simply meant selling goods via his business.  The IAA then referred to the applicant's brother being released on payment of money and made the observation that this suggests that was the likely motive, and not because they were seeking out the applicant.

25. The IAA found this was consistent with country information that was referred to in the post-interview written submissions indicating that it is common for the Taliban to abduct and kidnap people of interest in order to finance their activities, and the Taliban abducted and kept captivity locals who appeared to be a good target for financial gains.  The IAA referred to the applicant's entry interview, in which the applicant responded to the question why he left Pakistan, referring to the Taliban having caught his brother and that they had to pay a ransom for him to be released.  The IAA noted the applicant made reference to the Taliban leaving letters at your door and asking for money, and if you don't pay, they threaten to kill you.

26. The IAA noted the immigration officer then asked the applicant whether the Taliban contacted him directly, and he said, "No", as they would have arrested and caught him.  The applicant was asked why they would arrest him, and responded, "You have to pay them money or they will kill you."  The IAA then referred to the applicant being asked by the immigration officer what would happen to him if he returned to Pakistan, and he asserted he would be killed and cut into pieces because of the letters that had been dropped on doorsteps in his village. 

27. During the IAA interview, the IAA put to the applicant that in response to the entry interview, he did not state that his brother had been kidnapped because the applicant had been assisting Shia community against Taliban orders, and this may cause the IAA to doubt the credibility of this claim of the applicant. The applicant's response referred to his cousin sending him a letter stating that he needed to present his brother, otherwise his brother will be killed.  The IAA asked the applicant when he received the letter, and he could not remember when that happened and whether it was before or after he left Pakistan.  The IAA put to the applicant that he made no mention of the letter in his statement for protection visa interview, and the applicant responded that he sees his cousin as his big enemy, and that he assumed he was the one who sent the letter.

28. The IAA took into account the nature of the protection visa interview, but referred to the follow-up questions which provided the applicant with an opportunity to provide further information on these matters.  The IAA noted the applicant was specifically asked whether he was contacted by the Taliban directly, and why he thought he would be arrested by the Taliban, and why he thought he would be killed on return.  The IAA in that regard said it was satisfied the applicant had had a reasonable opportunity in the interview to mention his current claims, at least briefly in that regard, as to why he was being specifically targeted by the Taliban.  The IAA also observed that the applicant's claim about his cousin sending him a threatening letter was at odds with his original claim that the Taliban were seeking the applicant, and only kidnapped the brother when they couldn't find the applicant.

29. The IAA referred to a post-interview submission advancing the proposition that the applicant faced retaliation from his cousin's opposing tribe, but didn't identify what the opposing tribe was that the cousin belonged to.  The IAA noted that when the applicant was asked why he feared harm from his cousin, the applicant said his cousin would not leave him, and is now claiming the applicant is drinking alcohol in Australia, and that the Taliban is back in the mountains around Kurram.  The IAA noted the applicant didn't make any reference to a tribal feud with his cousin.

30. The IAA then referred to post-interview written submissions in which it was submitted that the applicant had a well-founded fear of persecution as a Mangal-Janikhel tribe of Pushtun  ethnicity (Pahan) from the Taliban, and his cousin, as he feared the Taliban and his cousin would seek to kill him or harm him so that the applicant does not seek to avenge the abduction of his brother and loss of property.  The IAA observed the applicant made no such statement in his protection visa interview or in the IAA interview as to why he feared his cousin.

31. The IAA made reference to the applicant secretly supplying goods to Shias, and referred to country information indicating by 2011 Sunni and Shia tribesmen in Kurram had come to a peace agreement.  The IAA found that country information doesn't support that Sunni businessmen from lower Kurram were being prevented from doing business with the Shia community in Parachinar, Kurram, ran by the Taliban, and that the applicant has not provided country information to suggest that this was the case.

32. The IAA noted that at the protection visa and the IAA interview, the applicant claimed his brother continues to reside in their village and that there's no credible evidence that his brother came to any further harm from the Taliban, despite not obeying the orders of the Taliban to hand the applicant over as a condition of his release.  The IAA, in this context, made the observation this was despite the applicant's claim that the Taliban consider those that do not comply with their orders as enemies and liable to death.  It was in these circumstances that the IAA made a finding that it did not accept that the applicant's cousin was a Taliban informant, or member, and held a grudge against the applicant, and informed the Taliban of the applicant's assistance to the Shia community.  Further, the IAA did not accept the applicant's brother was kidnapped by the Taliban, because of the applicant's assistance to the Shia community.  Further, the IAA did not accept that the Taliban found out about the applicant's continued assistance to the Shia community in 2013.  The IAA, in that context, then made a finding that it was not satisfied the applicant will face a real chance of harm from the Taliban, or any other group or person, because he previously supplied goods to the Shia community, and/or had a good relationship with the Shia community, or because his brother was kidnapped and held for ransom, or as someone who was from the Mangal-Janikhel Pashtun tribe (Pahan). The IAA found that even if the applicant were to maintain good relations with the Shias on his return to Kurram, the IAA is not satisfied the applicant will face a real chance of harm as a result.

33. The IAA made express reference, in relation to the applicant referring in his protection visa interview, why he feared going back to his village, that included the Taliban had become combined and much stronger, and that the applicant acknowledged the Taliban were attacking Shia. 

34. The IAA then referred to country information that was before the delegate, and the particular area of the Federally Administered Tribal Areas (where Kurram is located), and observed that by 2015, most of the areas of FATA had been cleared of militants, which resulted in a significant decline in militant attacks.  The IAA then also referred to country information that until 2018, the FATA was governed under colonial-era laws called Frontier Crimes Regulations, and that those agencies are now part of the KP Province and that residents of KP, including the former FATA, now have access to the regular judicial system, although the option remain to voluntary refer disputes to traditional resolution.

1. The IAA made express reference to the 2023 submissions advancing that the security situation had deteriorated since mid-2021, and referred to a news article of 2022 that concerns of a TTP (Tehreek-e-Taliban Pakistan) resurgence had grown since August 2021 when the Afghan Taliban took over Kabul following the departure of the United States. 

2. The referred to the applicant’s 2023 submissions and an article in Al Jazeera from September 2022 that the TPP had gradually made a strong comeback in Pakistan and now posed a significant threat to the country.  The IAA noted insecurity and violence at the Pak-Afghan border had been growing gradually since the Taliban took power in Afghanistan.  The IAA made reference to the Taliban's stricter and nationalistic stance and that there had been negotiations between the Pakistan government and the TPP, with the TPP declaring a ceasefire in May, but that the TPP ended the ceasefire in November 2022.

3. The IAA then referred to the report on Pakistan published by the Australian Department of Foreign Affairs and Trade (DFAT) in January 2022 -which noted that following improvement over recent years, the security situation in Pakistan had deteriorated since mid-2021.  There is a reference to the causes of insecurity  including economic hardship, petty and organised crime, and the situation in Afghanistan.  The IAA noted terrorist attacks had increased since 2021, and that DFAT contacts in country said militants in Pakistan were regrouping, especially under the umbrella of the TTP and expressed concern as to the deteriorating security situation in Afghanistan that would increase violence in Pakistan.  The IAA referred to country information as to increase in militant attacks in Pakistan in 2021 and 2022 and that the first half of 2023 saw a rise in terror incidents compared to 2022, and that KP emerged as the most affected province in relation to attacks in the tribal districts (erstwhile FATA).  The IAA referred to a 51 per cent rise in terror attacks in the tribal districts in the first half of 2023 compared to 2022.  Although, there was a decline in fatalities.

4. The IAA referred to the DFAT report, noting that the TTP attacks within Pakistan had increased since the Taliban seized power in Afghanistan in August 2021.  The IAA noted the attacks occurred mostly in KP, and that under the leadership of Mehsud and that the TPP had moved away from targeting civilians, which was undermining popular support, to focus on attacks against Pakistani militants and other government representatives. 

5. It was in this context that the IAA observed the applicant has not fit the profile of other civilian targets noted in the country information report.  The IAA also referred to country information report that the KP province saw a 201 decrease in fatalities from terrorism and counter-terrorism violence between the first and second quarter of 2023, and that, overall, fatalities decreased by 21 per cent in the country.

6. The IAA noted that security officials remained the most significant number of victims of terrorist violence in the second quarter of 2023.  The IAA made reference to the DFAT report about the TTP acting as an alternative state and the TTP influence include the surrounding districts that were identified, but not exhaustive, and noted that it did not specify this was occurring in the Kurram District.  The IAA noted that other security reports and country information from reputable sources do not indicate that this is occurring in Kurram.

7. The IAA made reference to the submissions referring to a report of extortion demands in the KP province, but noted that this did not indicate it was occurring in the Kurram district, and also recorded that the cited report indicated the Taliban had publicly denied their involvement.  The IAA then referred to the DFAT 2022 report in relation to Islamic State and Al-Qaeda targeting Pakistani military and government representatives and religious and ethnic minorities, and anti-Western attacks, and that they had been targeting Shia sites, rather than directly challenging the state.  The IAA made reference to what might be meant by the anti-Western attacks, and observed, from the information before the IAA, it does not reflect targeting returnees/failed asylum seekers from Western countries.  The IAA made an express finding the applicant does not fit the profile of targets for these groups.

8. The IAA then made reference to the 2022 DFAT report in relation to large-scale security operations having wound down, and Pakistani armed forces continuing to conduct operations against terrorist groups, referring to the TTP's facing many assassinations of its top commanders, and that in the first half of 2023, the Pakistani security forces had stepped up their response against terrorism.  The IAA referred to the 2022 DFAT report, noting that most militant attacks happen in KP, especially North Waziristan and Balochistan.

9. The IAA then found, having considered other sources, the IAA was not satisfied that is the case in Kurram.  The IAA made reference to there being only one militant attack in the Kurram in 2021 relating to an attack on workers of a cellular company in a particular area.  The IAA made reference to an intertribal clash near the Afghan border over ownership of a forest, and that there is no indication that this dispute relates to the applicant or his tribe, or occurred near his village.

10. The IAA referred to 12 incidents of violence in Kurram in 2022 and three terrorist attacks and a clash between tribesmen that did not appear to relate to the applicant's tribe and that most casualties were security force personnel in 2022.  In relation to the security situation in Kurram in 2023, the IAA referred to several media articles in relation to which a Sunni man was killed while travelling in a village situated a few kilometres from the Pakistan-Afghan border and that there were conflicting accusations as to whether the incidents were a result of a personal feud or an act of terrorism.

11. The IAA made reference to a claim by the Deputy Commissioner that it was a land dispute.  The IAA also made reference to an article that the Taliban had claimed responsibility for the attack on the school, but that other reports did not make the same assertion.  The IAA observed this incident did not occur in the applicant's village.  The IAA referred to a report that the Taliban were responsible for the killings, but that report was about a different incident in relation to firefights over a land dispute in Kurram in July 2023.

12. There was also a reference to the TPP reportedly being involved from across the Afghan border over disputed land in Kurram.  The IAA observed that the conflict has been described as a land dispute whilst other claims were "sectarian conflict" or "a land dispute that took on sectarian colour".  The IAA observed that the tribes had come to a group, to a truce and an agreed ceasefire by mid-July 2023.  The IAA observed that the incident does not appear to relate to the applicant's tribe and did not occur in his village, and that there were no other reports provided to the IAA to indicate that the incidents had escalated into a continuing wider conflict in the Kurram era.  It was in that regard that the IAA found it was not satisfied on the evidence that militant groups, such as the Taliban, were involved in these incidents. 

13. The IAA accepted that sporadic incidents may well occur again in Kurram in the reasonably foreseeable future but found the weight of the evidence does not suggest a material change in the security situation in the current district, and did not accept the applicant will face a real chance of harm in the reasonably foreseeable future. 

14. The IAA made reference to the majority of attacks having occurred since 2021 being government agencies, which the TTP has openly said is their target, and that most attacks have occurred in districts other than Kurram.  The IAA found this indicates there has been an uptick in the security situation - in the security operations targeting militants by the Pakistan Government in response to increased militant attacks.

15. The IAA referred to post-interview submissions and the assertion of extrajudicial killings and forced disappearance arising during particular military operations.  The IAA observed the majority of incidents of disappearances are reported from KP but that the country information did not cite a source of country information.  The IAA made reference to the 2017 report on Pakistan that was before the delegate, and the arrest of a large number of Pashtuns on suspicion of terrorism activities largely due to the fact that the TTP support base is primarily Pashtun.  The IAA found this report did not indicate that has been occurring in the Kurram District. 

16. The IAA then referred to the DFATs 2022 report:

    Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP, which has led to official discrimination and ethnic profiling

17. The IAA noted that DFAT report 2022 stated areas were a minority with low-level societal discrimination against Pashtuns, and I noted there were credible reports of Pashtuns having been targeted for enforced disappearances, especially in conflict-affected areas such as KP and that conflict-affected areas such as KP face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings.

18. There was reference to Pashtuns generally facing a low risk of official and/or societal discrimination, although the risk increases if they come to the attention of the authorities for any reason.  There was an express reference by the IAA to Pashtuns involved in particular entities facing a heightened risk, as do Shia Pashtuns.  The IAA then made reference to the submission that the DFATs moderate risk assessment for Pashtuns in KP could constitute a real chance/risk of serious or significant harm for the applicant.  The IAA made reference to the DFAT statement in relation to Pashtuns being targeted for enforced disappearance in the KP, and it observed that it does not indicate what districts of the KP this has occurred and does not elaborate if these Pashtuns had a particular profile.

19. The IAA made reference to other recent reputable sources before the IAA, not suggesting the state forces have been targeting the Pashtun community in general, in Kurram, in the form of enforced disappearances or extrajudicial killings. 

20. The IAA also noted the applicant does not claim to be involved in particular organisations and does not have an otherwise adverse profile with the Pakistani authorities.  Because of these circumstances, the IAA was not satisfied the applicant will face a real chance of harm from any group or person as a Pashtun or because he is a Pashtun from KP.  The IAA then found, having considered the country information and the applicant's profile, the IAA was not satisfied the applicant will face a real chance of harm from any group or person in the Kurram district in the reasonably foreseeable future.

21. The IAA then made reference to the submission that the applicant will be imputed with a political opinion as an opponent of Sunni extremism, particularly the Taliban, as a returnee from the western country, and the IAA made reference to the applicant's claim that the Taliban labelled failed asylum seekers as spies of Westerners and infidels.  The IAA made reference to the 2017 DFAT report that many Pakistanis have relatives in western countries, and many more aspire to migrate aboard and that those living abroad return to Pakistan frequently to visit relatives.

22. The IAA made reference to DFAT assessing individuals in Pakistan not being subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations.  The IAA made reference to the 2022 DFAT report assessing that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate or because they have lived in a western country.

23. The IAA noted that official discrimination or violence can occur due to the reason a person attempted to migrate, or because of the behaviour or opinions they display while living abroad.  The IAA was not satisfied the applicant has expressed an opinion or behaved in a way that has brought him to the adverse attention of any group or person in Pakistan whilst he has resided in Australia.  The IAA found that no other country information indicates that militant groups, including the Taliban, target returnees/failed asylum seekers from western countries.

24. The IAA referred to the applicant departing Pakistan legally on his own genuine passport and that they would have to likely return on a temporary document.  The IAA was not satisfied the applicant would be harmed during or after his interview, or further detained if he were to return to Pakistan.  The IAA was not satisfied on the country information that the applicant will face a real chance of harm from Pakistani authorities, Sunni militant groups, or any other group or person as a failed asylum seeker returning from a western country or in combination with any other aspects of his profile.

25. The IAA turned to consider whether the applicant faced a real chance of harm on his return trip to his village and found the country information does not support a real chance of harm for someone of the applicant's profile when accessing Kurram and was not satisfied the applicant will face a real chance of harm whilst returning to the Kurram district.  The IAA identified, having considered the applicant's claims, his profile and the country information and the security situation in Pakistan and the Kurram district, and was not satisfied the applicant will face a real chance of harm from any group or person in the reasonably foreseeable future if he were to return to Pakistan.

26. The IAA found the applicant doesn't meet the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) (“the Act”) and doesn't meet the criteria in s 36(2)(a) of the Act and affirmed the decision under review. The IAA referred then to whether the applicant met the criteria in respect of complementary protection. The IAA referred to the adverse findings as to the applicant's cousin being a Taliban informant and not accepting that the Taliban were informed of the applicant's assistance to the Shia community and not accepting the applicant's brother was kidnapped by the Taliban because of the applicant's assistance to the Shia community, and not accepting that the Taliban found out about the applicant's continued assistance to the Shia community, and not being satisfied the applicant will face a real risk of significant harm in Pakistan for these reasons, having identified the definition of significant harm.

27. The IAA made reference to having considered the applicant's profile, the country information about the security situation in the current district and Pakistan, and the potential risks with someone like the applicant, and found the applicant will not face a real chance of harm in Pakistan and found the applicant does not face a real risk of any harm in Pakistan. The IAA concluded that there are not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being returned from Australia to Pakistan, there is a real risk the applicant will suffer significant harm, and found the applicant didn't meet the criteria under s 36(2)(aa) of the Act.

    GROUNDS IN AMENDED APPLICATION

28. The grounds of the amended application are as follows:

    1.The second respondent (IAA) failed to give proper consideration to the applicant’s claim to face a real risk of significant harm in the form of being kidnapped and/or tortured by the Taliban or their allies for ransom, or alternatively, the IAA’s consideration of country information in relation to that claim was irrational or unreasonable.

    Particulars

    (a) The IAA rejected the applicant’s claim to face killing, kidnapping or torture from the Taliban because he had sold goods to the Shia community in defiance of the Taliban’s orders.

    (b) The IAA failed to consider the applicant’s alternative claim that he would be kidnapped or tortured for ransom.

    (c) In the alternative, if the IAA considered and implicitly rejected that claim, its consideration of the country information was irrational, in that the IAA’s finding could not rationally be supported by the information on which it relied for that finding.

    (d) In the further alternative, the approach of the IAA to the country information on this issue was unreasonable and did not reflect the careful, fair and reasonable approach required.

    2.The IAA made an irrational finding in dismissing the applicant’s claim to face a real chance of serious harm from state security forces in his home area, or alternatively, failed to consider an integer of the applicant’s claim arising from the material on that issue.

    Particulars

    (a) The applicant claimed to face a real risk of violence by state security forces, including enforced disappearance and extrajudicial killings, in reliance on a DFAT assessment.

    (b) The findings at [64] in relation to the January 2022 DFAT report were irrational in that they could not rationally be supported by the information on which it relied.

    (c) In the alternative, the IAA failed to consider the applicant’s claim to fear harm from security forces of a kind other than enforced disappearance or extrajudicial killing, or harm in the form of official discrimination, being an integer of the claim either expressly made by the applicant or arising from the material on which the applicant expressly relied.

    3.The IAA failed to consider whether the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia to his home area, separately from whether any such harm was for a Refugee Convention reason.

    Particulars

    (a) The complementary protection assessment at [73]-[78] failed to consider the real risk of significant harm faced by the applicant for reasons other than his assistance to the Shia community.

    (b) The IAA failed to assess of the risk of harm from violence or the security situation other than whether the applicant would be personally targeted because of his particular profile or characteristics.

    FINDINGS AND CONCLUSIONS

29. The Court had the benefit of both written submissions dated 3 October 2023 and oral submissions on behalf of the applicant and both written and oral submissions on behalf of the Minister.

30. In relation to ground 1, Mr McBeth, counsel on behalf of the applicant, advanced that there had been a failure to properly consider the applicant's claim to face a real risk of significant harm from being kidnapped and/or tortured by the Taliban or their allies for ransom, and advanced in the alternative that the IAA's consideration of the country information in relation to their claim was irrational or unreasonable.  It was advanced in the particulars to this ground that the IAA had failed to consider the applicant's claim that he would be kidnapped or tortured for ransom, and it was advanced that if there had been a rejection of that claim, the consideration of the country information was irrational and could not be supported and/or that the approach to the country information was legally unreasonable.  Notwithstanding the skilful submissions of Mr McBeth, the IAAs reasons are not to be read with a keen eye for error and must be read as a whole.

31. The seventh dot point in relation to the applicant's fear of harm from the Taliban was identified as a summary and cannot fairly be construed as confined to the applicant defying demands by continuing to assist the Shia community.  The ninth dot point also identifies fears that the Taliban or his cousin will kill or harm the applicant.  The words in relation to not avenging the abduction of his brother or loss of property do not detract from the identification of the applicant's fear of harm being recognised by the IAA in its summary of the applicant's claims on a fair reading. 

1. The IAAs reasons reflect a very careful analysis of the country information, identifying those who have profiles attracting attention.  The express reference to abduction and kidnapping in paragraph 38 to finance activities, on a fair reading, is a genuine intellectual engagement with the applicant's claim to fear harm from the Taliban, including kidnapping for ransom, and that this claim was within the recognition of the post-interview written submissions identified in paragraph 23 and that the adverse findings in paragraph 46 are a dispositive finding in respect of this integer of the applicant's claim in the reference to harm from the Taliban and that that reference to harm clearly included kidnapping and ransom given the express reference to the applicant's brother.

2. The IA further expanded in its reasons in relation to the applicant not fitting the profiler for targets and the security situation in the applicant's home district and that the adverse finding in paragraph 59 is further dispositive of the applicant's claim to fear harm, which includes, without a keen eye for error, the applicant's claim to fear harm from kidnapping for ransom.  Further, the Court is of the view that the last sentence of paragraph 64 is a further dispositive finding in terms of real chance of harm from any group that would include the Taliban and include, without reading the same with a keen eye for error, a claim to fear from being kidnapped for ransom.  The Court rejects the applicant's contention that there was a failure to consider the applicant's claim in relation to kidnapping for ransom. 

3. The Court finds the IAAs reasons in relation to the applicant's want of profile and the security situation provide a logical, rational and intelligible justification for the adverse findings in respect of the applicant's claim.  No jurisdictional error, as alleged in ground 1, is made out. 

4. In relation to ground 2, Mr McBeth submitted, orally and in writing, that the applicant made a claim to fear harm from Pakistani security forces on the basis of his Pashtun ethnicity, and that there was a failure to consider this as an integer of the applicant's claims, and/or that the adverse finding was irrational in light of the content of the DFAT report and in particular paragraph 3.17 and 3.18 at page 226 in the Court book.  The IAA at paragraph 62 expressly referred to disappearance and extrajudicial killings by reference to the DFAT report in its thorough and comprehensive analysis of the country information in respect of the applicant's claims.  The IAA identified at 63, the submission in relation to the alleged moderate risk.

5. The reasoning of the IAA, read without a keen eye for error, identifying the want of the applicant's membership of the particular groups and want of a particular profile, reflects a dispositive finding of the applicant's claims in this regard in the last sentence of paragraph 64 and by the adverse finding in paragraph 65.  Accordingly, there was no failure to consider an integer of the applicant's claim.  Further, the want of membership by the applicant of the particular - of membership of particular groups and the want of a relevant profile and the analysis of the security situation from the country information identified by the Authority provides a logical, rational and intelligible justification for the adverse findings by the IAA.  Accordingly, no jurisdictional errors made out by ground 2.

6. In relation to ground 3, a fair reading of the IAA's reasons reflects a proper identification - reflects a real and genuine intellectual engagement with the issue of the applicant's claims in relation to complementary protection, having identified the meaning of significant harm.  To read the IAA's reasons as if confined to consideration of the applicant's assistance to the Shia community is to read the same with a keen eye for error.  The reference in paragraph 77 to consideration of the applicant's profile picks up the earlier reasons of the IAA that must be read as a whole and the country information referred to by the IAA and the analysis of the security situation in the applicant's current district, where his brother still lives, and the reference to potential risks for someone like the Taliban, clearly embrace the applicant's circumstances identified in the IAAs reasons that, in addition to his want of relevant profile and want of membership of particular groups, expressly referred to the return from Western countries in paragraph 55 as well as at paragraph 66, and the observations made in the last - and the finding made in the last sentence of paragraph 67 in terms of being a returnee/failed asylum seeker from Western countries, and the adverse finding at the end of paragraph - in the last sentence of paragraph 69 referable specifically to the applicant as a failed asylum seeker returning from a Western country or in combination with other aspects of his profile. 

7. The IAAs reasons are not to be read with a keen eye for error, and the reference in paragraph 77 to the security situation in the Karrum District and Pakistan pick up the IAAs careful and thorough analysis of the country information referable to the applicant's claims.  Accordingly, the proposition that there was a failure to separately consider whether the applicant met the complementary protection criteria is not made out.  The Court finds that there was no jurisdictional error, as alleged in ground 3.

8. It is for these reasons the amended application must be dismissed and the applicant must pay the first respondent’s costs fixed in the sum of $7400.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       18 November 2024