Bsu20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 642
•2 June 2022
FEDERAL COURT OF AUSTRALIA
BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 642
Appeal from: BSU20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2718 File number(s): QUD 329 of 2020 Judgment of: GREENWOOD J Date of judgment: 2 June 2022 Catchwords: MIGRATION – consideration of whether the Immigration Assessment Authority (“IAA”) failed to have regard to submissions of substance including submissions relating to particular aspects of a Report of the Department of Foreign Affairs and Trade of 2019 concerning Pakistan to which it was referred, in undertaking the review of the referred decision Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 476 Cases cited: CEO19 v Minister for Immigration & Anor [2020] FCCA 1472
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 48 Date of last submission/s: 11 May 2021 Date of hearing: 24 August 2021 Counsel for the Appellant: Mr J P Stoller Solicitor for the Appellant: Lincoln Lawyers Counsel for the Respondents: Mr J D Byrnes Solicitor for the Respondents: Sparke Helmore ORDERS
QUD 329 of 2020 BETWEEN: BSU20
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
GREENWOOD J
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal is upheld.
2.The orders of the Federal Circuit Court of Australia made on 1 October 2020 are set aside and in lieu of those orders, the following orders be made:
(a)the decision of the Immigration Assessment Authority (the “IAA”) made on 17 February 2021 affirming the decision of the Minister’s delegate is quashed;
(b)the matter, the subject of the IAA’s review decision of 17 February 2020, is remitted to the IAA to be determined according to law;
(c)the first respondent pay the costs of the applicant before that Court of and incidental to the application.
3.The first respondent pay the appellant’s costs of and incidental to the appeal.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings raise a short but important question as to whether the Immigration Assessment Authority (the “IAA”) constructively failed to exercise and discharge its statutory duty to review the decision of the Minister’s delegate referred to it, by failing to consider a contended “submission of substance” made in support of the appellant’s claims, and by failing to have regard to evidence put to it in support of the appellant’s claims for a Protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).
These questions arise in the context of an appeal from the Federal Circuit Court of Australia (now described as the Federal Circuit Court and Family Court of Australia (Division 2)) (the “primary court”) constituted by his Honour, Egan J (the “primary judge”), delivered on 1 October 2020 dismissing an application for the grant of the constitutional writs in the exercise of the primary court’s jurisdiction under s 476 of the Act in relation to a decision of the IAA handed down on 17 February 2020 which affirmed a decision of the Minister’s delegate not to grant the appellant’s a “Safe Haven Enterprise (Subclass 790) visa” (the “visa”).
The IAA accepted that the appellant is a Pashtun Turi Shia Muslim born in a village near Parachinar, the capital of Kurram Agency, and is thus a national of Pakistan: IAA decision at paras 11, 22 and 24. Parachinar and Kurram Agency is located within an area known as the “Former Federally Administered Tribal Areas” (“FATA”) of Pakistan which is part of the Khyber Pakhtunkhwa Province in a mountainous region of Pakistan near the border with Afghanistan.
The appellant made a series of detailed factual claims to support his fundamental claim before the delegate and the IAA which was that he fears being kidnapped or killed by the Taliban and other extremist Sunni groups because he is a Shia and Turi; he fears serious harm and violence because of his personal encounter with the Taliban and because several of his family members have been killed or injured by the Taliban.
As to the impact of violence on family members, the appellant claimed that between 17 August 2008 and 19 September 2015, a relative (the degree of familial connection is not clear), four cousins, his grandfather’s third wife, his mother’s cousin, his mother’s nephew and his father‑in‑law’s brother’s wife had all been killed or injured due to Taliban or Sunni violence directed again Shia Muslims. The Minister’s delegate accepted that the incidents concerning family members between 2007 and 2013 (all but one in 2015) were the result of the “volatile security environment” in that period, not as a result of “targeted attacks”. The IAA accepted that “some of the appellant’s relatives died or were injured in sectarian or militant violence” and that such a conclusion was “broadly consistent with country information about bombings and violent clashes … resulting in significant Turi Shia casualties” during the period 2008 to 2014: IAA, paras 24 and 28.
In the result, the delegate found that although the appellant faced a real chance of serious harm should he return to Kurram Agency, he did not face a real chance of suffering serious harm throughout the whole of Pakistan. Thus, the delegate refused the application for the visa. The IAA affirmed the decision to refuse the grant of the visa, not on that ground but rather on the ground that it was “not satisfied there is a real chance the applicant will suffer any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if he were to return to Kurram Agency” and finding that “in the six and [a] half years the applicant has been absent from upper Kurram the security and sectarian situation there has improved dramatically” such that “having regard to the nature and frequency of militant and sectarian incidents in Kurram Agency I am not satisfied that they rise to the level of real chance”: all quoted passages are contained in para 28 of the IAA’s decision.
The contentions of the appellant are these.
The starting point as a matter of principle is that the IAA in performing its statutory review duty in relation to the referred decision is required to consider a “substantial clearly articulated argument” as to a claim of the appellant to hold a well‑founded fear of suffering serious harm or a claim that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the receiving country, there is a real risk of the person suffering significant harm. As to such a substantial and clearly articulated claim, the statutory review duty requires the IAA to “assess and determine what might happen” to the appellant if he were compelled to return to his country of nationality, or put another way for the purposes of s 36(2)(aa), returned to the receiving country, in the likely year of return or “in the near future thereafter”. That principle is derived analogically from a decision of the Full Court of this Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Kenny, Griffiths and Mortimer JJ at [37] to that effect, in conjunction with the following observation at [38]:
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well‑founded fear of persecution for a Convention reason, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth (1999) 197 CLR 510 at [187]. … but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference) …
The appellant contends that a submission in support of such claims might be characterised as “substantial” in various ways but notably because it asserts “established facts material to the claims” that need to be addressed, or because it is made to the IAA in direct response to concerns raised by the decision‑maker or anterior matters put before the delegate.
As to the submission of substance said not to have been addressed by the IAA, the appellant says that the visa application was lodged on 4 January 2017 supported by the appellant’s declaration of 13 September 2016. In that declaration, the appellant claimed that members of his family had been killed and injured between 2008 and 2016 (although the delegate at AB 330, p 6 of the decision of the delegate, seemed to identify the last event of harm to be a family member on 19 September 2015). The appellant emphasises this passage from the declaration:
We are continuously … targeted by suicide bombs, kidnapping, firing on passenger and food supply trucks and the government didn’t take any action against these activities and we lose so many precious lives.
The appellant says that as well as past harm of this kind, the appellant contended before the IAA that the security situation in Kurram Agency was “volatile” and at “risk of deteriorating in the reasonably foreseeable future” exposing the appellant to a real risk of serious harm. The appellant says that that claim was supported by a number of documents to be mentioned shortly. It should be noted that the delegate’s decision was made on 8 January 2019, although the Department’s letter advising the appellant of the delegate’s decision is mistakenly dated 8 January 2020: AB 322. The delegate’s decision was referred to the IAA in accordance with the requirements of s 473CA of the Act (not referred a year later). The appellant made submissions to the IAA on 3 February 2020 and the IAA made its decision on 17 February 2020.
As to the matters emphasised by the appellant drawn from documents, the appellant notes these seven matters.
First, in the submission of Hevi Shikho of Lincoln Lawyers attached to an email of 20 November 2019 on behalf of the appellant, the submission notes reports of a decrease in persecution in Kurrum Agency but contended that the area is “widely‑reported not yet to be secure and independent observers argue that it is too early to regard the area as generally safe” [emphasis added]. The submission then observes that both the United States and Australian governments advise that it is extremely dangerous to travel on the roads in KPK Province, and other reports indicate that this is because the Taliban (and Islamic State) continue to target, or attempt to target, their traditional enemies: Westerners, non‑Muslims, Shia and other non‑Sunni (Muslims).
Second, the following submission is made in the document of 20 November 2019:
The whole of the information above suggests that sectarian violence (along with other motivated violence) has peaks and lows of activity across Pakistan depending on the complex interaction between the extremist groups themselves, the Pakistan Government and armed forces, political influences and religious tensions.
[emphasis added]
Third, the following submission from the document of 20 November 2019 is emphasised:
Reporting on the security situation in Pakistan generally, DFAT notes that the security situation is complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Afghanistan.
Fourth, in the submission of 20 November 2019, emphasis is addressed to para 3.26 of the Report of the Department of Foreign Affairs and Trade (“DFAT”) concerning Pakistan, dated 20 February 2019 (AB 404 and para 3.26 at AB 430) (the “DFAT 2019 Report”). Paragraph 3.26 is in these terms:
3.26DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurrum Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such, DFAT assesses Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith. Turis in other parts of the country tend to face a level of risk similar to other non‑Hazara Shia groups.
[emphasis added]
Fifth, in the appellant’s statement of 11 October 2019, he said this:
In the neighbouring Afghanistan, 80% of the country has been occupied by Taliban, and this will get worse with the US leaving. The fact that the Taliban is retaking Afghanistan will make them a major threat to Parachinar across the border. It will also give confidence and boost to the extremists minded people in Pakistan, to make Jihad as they have been, and will be encouraged to increase their attacks.
Sixth, the appellant gave a statement on 18 September 2019 and his concluding observation was that he would be happy to answer further questions. The appellant gave a further statement in which he answered two questions. First, “Why is it dangerous for me to return to Parachinar now or in the reasonably foreseeable future?” Second, “Why I cannot relocate within Pakistan.” That nine page statement commencing at AB 286 is undated (although, the contention is that it was given on 11 October 2019. In any event, the passage from the statement at AB 288 which is emphasised is this:
Among all the Shia, Turi Shia of Parachinar have been the main target of the terrorists active in Pakistan. They have been a victim of targeted killing, bomb blast and kidnapping both inside Parachinar, on the way to Parachinar and also in other cities of Pakistan.
The security situation of Parachinar is very fragile. Anything can happen anytime and anywhere which can fuel the sectarian violence against Turi Shia.
Seventh, on 13 December 2019, Hevi Shikho sent an email to the IAA attaching a further submission in which the following submission was made at AB 320:
In its country information report DFAT indicates that Pakistan continues to face security threats from militant groups and that Khyber Pakhtunkhwa is among the regions experiencing relatively higher rates of militant and sectarian violence. This is despite Operation Zarb‑e‑Azb being expanded to include Khyber Pakhtunkhwa province and militant groups having more limited access to former safe‑havens in Khyber Pakhtunkhwa. DFAT also comments that several interlocutors in Pakistan told DFAT that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under‑development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016, including in Peshawar in Khyber Pakhtunkhwa province. DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically‑motivated or sectarian violence are rare, due in part to the effectiveness of police investigations and the effect of threats against judges, lawyers and witnesses.
As to these seven matters emphasised by the appellant, the contention is that the IAA made no determination of whether it was “too early to regard the Kurrum area as generally safe”; or whether sectarian violence was exhibiting “peaks and lows of activity”; or whether the security situation was, as described in the DFAT 2019 Report, “complex” and “volatile” and affected by the matters described at [16] of these reasons in para 3.26 of that Report. The appellant also contends that the matters put before the decision‑maker described at [17], [18] and [19] of these reasons were not addressed and were not dealt with by the decision‑maker.
In the context of the factual matters concerning the significant loss of (and injury to) family members of the appellant due to sectarian and militant violence directed against Turi Shia Muslims in Kurrum Agency by Sunni Muslim extremists, the appellant contends that the IAA had a duty to consider, address and form a view about, the contentions described at [13] to [19] of these reasons central to the claims of the appellant to fear harm of the kind and character (and due to the causes) experienced by his family members and the subject of the emphasised passages concerning Turi Shia Muslims in Kurrum Agency.
As to the impact upon the appellant’s family members (and thus reflecting the immediate concerns of the appellant) of sectarian and militant violence, I have already noted the conclusions of the delegate and, more importantly, the acceptance by the IAA that “a number of relatives [of the appellant] have been killed or injured in sectarian or militant violence over about a decade”, although the IAA was not satisfied of a “real chance” of the appellant suffering “any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future” should he return to Kurrum Agency.
The appellant contends that that conclusion was reached without any assessment of the forward‑looking risk of deterioration or volatility in the security situation in Kurrum Agency, especially having regard to the DFAT 2019 Report. The IAA’s assessment is, of course, a de novo assessment of the appellant’s claims by which the IAA forms its own view on all the material before it. It is not an exercise of correcting error on the part of the delegate. Nevertheless, the appellant contends that where the IAA departs from an acceptance of matters of fact accepted by the delegate (recognising that the delegate apparently accepted the force of the matters described at [13] to [19] of these reasons also put to the delegate), the IAA ought to clearly identify the basis for its de novo view of no real chance of the appellant suffering any harm, by addressing the critical contentions said to support a well‑founded fear of a real chance of the appellant suffering serious harm of the kind experienced by his family members consistent with volatility in sectarian and militant violence in Kurrum Agency, as contended, due to the factors described earlier at [13] to [19] of these reasons as put before the IAA by the appellant.
The appellant emphasises as the “critical dispositive finding” the matters in italics in the extra below from para 28 of the IAA’s decision:
I accept that the applicant is a Pashtun Turi Shia from upper Kurrum, that he had a short lived and low level association with the Anjuman‑e‑Hussania, and that a number of relatives have been killed or injured in sectarian or militant violence over about a decade. As a consequence I have carefully considered whether the applicant has a well‑founded fear of persecution on account of these findings. Unlike the delegate, I am not satisfied there is a real chance the applicant will suffer any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if he were to return to Kurrum Agency. The overwhelming weight of information before me evidences that in the six and [a] half years the applicant has been absent from upper Kurrum the security and sectarian situation there has improved dramatically. Apart from a general claim that they were continuously targeted because of the March 2013 incident that I haven’t accepted, the applicant has not otherwise claimed that his wife and child or siblings who live in upper Kurrum have suffered any adverse treatment from the Taliban or other anti‑Shia Sunni groups or anyone else in the lengthy period he has been absent from Pakistan. The information before me indicates there was one attack in Kurrum Agency in January 2018 in which a Turi family died as a result of a landmine by a road and no incidents in 2019 or in 2020 to date. While sporadic sectarian or militant attacks by the Taliban or other Sunni extremists may continue to occur in Kurrum Agency, having regard to the nature and frequency of militant and sectarian incidents in Kurrum Agency I am not satisfied that they rise to the level of real chance.
The contention is that in reaching this finding, the IAA failed to have regard to the submissions of the appellant as described at [13] to [19] of these reasons. The critical matter said not to have been addressed is the contention that while the security and sectarian situation might have improved in the recent past, the security situation remained “fragile” and “volatile” and at “risk of worsening in the reasonably foreseeable future”, and if it did, the appellant would face a real chance of serious harm as a Shia Turi Pashtun in Kurrum Agency.
The appellant says that instead of addressing that contention, the IAA reasoned that because the security and sectarian situation in upper Kurrum has “improved dramatically” (in the six and a half years since the appellant’s absence from upper Kurrum – July 2013 to February 2020) and because, since 2018, there had been one attack in Kurrum Agency in January 2018 (in which a Turi family died) and no incidents in 2019 and none in 2020 (up to 17 February 2020), the conclusion to be reached on the question of risk of harm to the appellant was that while sporadic sectarian or militant attacks by the Taliban or other Sunni extremists may continue to occur in Kurrum Agency, the nature and frequency of such incidents (that is, sporadic in character), resulted in the IAA not being satisfied that such incidents of that character “rise to the level of [a] real chance” of serious or significant harm to the appellant.
The appellant’s contention is that the IAA, in properly performing its review duty, could only reach such a conclusion by expressly addressing an important contrary contention put to it by the appellant emphasising the factors described at [13] to [19] of these reasons. The appellant’s counsel put the essential contention this way:
14.The appellant’s submission was a substantial one, because it relied on established facts, and/or because it was directly responsive to a stated concern of the delegate in the decision under review by the IAA. Indeed, the submission was of central importance to that integer of the appellant’s claim upon which the delegate and the IAA reached opposing views.
15.The relevant chronology (both in terms of the general situation in Kurrum Agency, and the impact of that situation on the appellant’s family) is of critical importance to understanding the way in which the appellant put this integer of his claim.
The appellant observes that the delegate accepted that episodes of tribal and sectarian violence had occurred in Kurrum Agency in the 1980s, 1990s, the early 2000s and on a large scale from 2007 to 2011. The appellant observes that the delegate noted that the DFAT 2019 Report “adds” that between 2008 and 2014, Turis faced significant violence and that Turis had been targeted for their Shia faith. The appellant notes that the delegate accepted that four attacks carried out by Islamic State and its affiliates targeting Turis in the first half of 2017 killed 138 civilians, coming after a period of calm. Again, because the IAA is conducting a de novo review it will and must form its own view of whether it can be satisfied about the relevant integers, but the appellant contends that in deciding a question of whether it can be satisfied about whether an applicant holds a well‑founded fear of persecution in the statutory sense, it must address the elements of the appellant’s contention as to the basis for a fear of a real chance of serious harm, and in reaching its own view it can be expected to explain with some analytical focus the basis upon which it has departed from important findings of the delegate on the very same topic.
The appellant contends that the IAA did not refer to these matters relied upon by the appellant although, otherwise, it found that Pashtun Turi Shias had been targeted by Sunni extremist groups in Kurrum Agency particularly between 2008 and 2014; it otherwise accepted at para 24, as mentioned earlier, that “some of the applicant’s relatives died or were injured in sectarian or militant violence”; and at para 28, the IAA’s reference to “some” became an acceptance that “a number of relatives have been killed or injured in sectarian or militant violence over about a decade”.
The appellant contends that a fair reading of the IAA’s reasons reveals that it accepted the appellant’s claims concerning the history of violence in Kurrum Agency; it accepted that such violence fluctuates; it accepted that at least a number of the appellant’s relatives had been killed or injured in shootings or bomb blasts in 2015 and 2016; and it accepted a deterioration in the security position had occurred in 2017.
The short point then has two elements.
First, the appellant’s submissions did not suggest that the security position in Kurrum Agency was “fixed”. Rather, the appellant contended for all of the factors earlier described; contended that the position in Kurrum Agency was “volatile” reflecting “peaks and lows” and any forward‑looking assessment needed to take into account that volatility in the peaks and lows could result in another peak occurring in the reasonably foreseeable future.
Second, the submissions earlier described were not addressed by the IAA and at no point in the reasons is there any mention of the submissions and no findings were made concerning whether the security situation in Kurrum Agency could or might (or would not) deteriorate in the reasonably foreseeable future. The appellant emphasises that there was no analysis of whether, should the position in Kurrum Agency deteriorate, the appellant would face, in those circumstances, a real chance of suffering serious harm as a Pashtun, Turi, Shia Muslim in Kurrum Agency.
The ultimate conclusion contended for by counsel for the appellant is that given the “centrality” of the submission to the claims of the appellant to hold a well‑founded fear of persecution and a fear of suffering significant harm if returned to the receiving country, the Court should infer that the submissions were not addressed and thus the failure to address the submissions is necessarily jurisdictional error in the review function.
The contention is that rather than the IAA addressing the submissions, the IAA reasoned that the security situation had improved in the six and a half years since the appellant had left Pakistan and thus the position as at 17 February 2020 had improved since 2013 such that there had only been one attack in Kurrum Agency in 2018 and no incidents in 2019 or 2020 (at least up to February 2020). Therefore, the IAA concluded that the likely face of the reasonably foreseeable future for Kurrum Agency was the possibility of only “sporadic sectarian or militant attacks by the Taliban or other Sunni extremists”. The appellant says that there was simply no assessment of the “risk of deterioration” in the security position. The appellant also says that the IAA’s conclusions cannot fairly be read as conclusions generally subsuming everything on this central matter put to it by the appellant. The appellant contends that the IAA failed to engage with and come to grips with the way the claims were put by a submission of substance and the failure to do so is material.
The appellant contends that the primary judge erred in rejecting the contention of a failure to consider the submission. The primary judge concluded at [23] that the IAA’s consideration and acceptance of the circumstance that sporadic sectarian or militant attacks may continue to occur in Kurrum Agency suggests that the IAA did take into account the appellant’s submission. The appellant contends for error by the primary judge because the appellant’s central contention concerned the volatility in the security position and a risk of deterioration in the security situation in which event the appellant faced a real chance of serious harm. The appellant says that those matters were not addressed by the IAA. The appellant says that the primary judge erred in reaching the conclusion at [23].
As to the DFAT 2019 Report, the appellant relied upon various passages from the Report in supporting his claims.
The appellant says that the IAA was required to have regard to the quoted passages and apart from any matter of principle going to the duty to review material put to the IAA, the appellant says that Ministerial Direction No. 84 required the IAA to have regard to the passages of the Report put to it. One passage put to the IAA is para 3.26 as quoted at [16] of these reasons. The appellant notes that the same passage was relied upon by Applicant CEO19 in CEO19 v Minister for Immigration & Anor [2020] FCCA 1472 (“CEO19”), a decision of his Honour, Driver J. Applicant CEO19 was also a Pashtun Turi Shia Muslim from Parachinar. The appellant notes that in CEO19 the IAA made no mention of DFAT’s assessment of the risk facing the applicant as a “moderate risk” in its reasoning in concluding that Applicant CEO19 did not face a real chance of harm in Parachinar or upper Kurrum Agency. The appellant notes that the Federal Circuit Court concluded in CEO19 that the IAA’s failure to discuss the finding of a “moderate risk” to Applicant CEO19 when reasoning to a conclusion that Applicant CEO19 faced no real chance of serious harm, the decision‑maker fell into jurisdictional error. In this case, para 3.26 of the DFAT 2019 Report, was put to the IAA reciting DFAT’s assessment that “Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups because of their Shia faith”. In this case, the IAA made no mention of the “moderate risk” assessment by DFAT in reasoning to its conclusion that it was not satisfied that the appellant faced a real chance of suffering any harm from the Taliban, Sunni extremists or anyone else should he return to Kurrum Agency. Apart from para 3.26, the appellant also expressly relied upon para 3.111 of the DFAT 2019 Report which is in these terms:
DFAT assesses that Shia in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurrum Agency, particularly in Parachinar, is higher than in other parts of the former FATA.
[emphasis added]
The appellant contends that the IAA had no regard to that quoted paragraph.
The appellant’s contention is that the IAA’s failure to consider particularly the DFAT assessment at para 3.26 of “moderate risk” faced by the Turis in Kurrum Agency, given the centrality of the assessment of risk to the IAA’s duty of review of the referred decision, is jurisdictional error.
The primary judge at [25] distinguished CEO19 on the basis that the IAA’s decision in CEO19 was handed down on 22 May 2019 just over three months after the DFAT 2019 Report was released on 20 February 2019, whereas in this case, the IAA handed down its decision on 17 February 2020 almost a year after the release of the DFAT Report. The point of distinction for the primary judge was that another year had gone by and the IAA was able to note that there had been no incidents in 2019 and none in 2020 (at least up to 17 February 2020) and the last incident of significance in Kurrum Agency had occurred in January 2018.
The appellant contends that although the timing of the IAA’s decision might have provided the IAA with a basis for departing from DFAT’s assessment of the risk as a “moderate risk” at the moment in time of the IAA’s decision on 17 February 2020, a question of timing could not entitle the IAA to simply disregard DFAT’s assessment of the risk facing Turis in Kurrum Agency as a “moderate risk” when reasoning to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency.
The appellant also contends that the IAA failed to have regard to other evidence put to it consisting of extracts from DFAT’s Smart Traveller website updated on 7 August 2019, an extract from the United States State Department’s travel advice and a Report relied upon by the appellant in relation to a terrorist attack which occurred in the neighbouring area in November 2018 resulting in 35 deaths.
As to the primary contention of the appellant, the Minister says that the appellant did not expressly claim, and there was nothing in the evidence to suggest, that the security position in Pakistan would decline in the future. The Minister says that it is clear from the IAA’s reasoning that it adopted a “forward‑looking” approach in its assessment of whether the appellant faced a real chance of suffering serious harm and the IAA “turned its mind to the risk of harm in Pakistan, and in particular the Kurrum Agency, in the future”. The Minister also says that in assessing a future risk of harm, a relevant field of enquiry was whether an applicant had suffered persecution in the past and accordingly the IAA’s consideration of what had occurred in the past was “an orthodox approach to the assessment of harm in the future”.
The difficulty with this submission is that although the IAA turned its mind to the risk of harm in Pakistan and turned its mind to the risks in Kurrum Agency, the appellant’s contention is that in doing so it failed to address the specific and particular submissions put to it by the appellant. The appellant says that the submissions were not addressed and no findings or conclusions about the contentions contained within the submissions was reached. The appellant says that these matters were central to the claims of a well‑founded fear of persecution and a fear of significant harm. Thus, although the IAA turned its mind to the risk of harm in Kurrum Agency, it did not expressly turn its mind to the submissions made by the appellant in reasoning to a conclusion about the risk of harm.
The Minister also says that the IAA referred to country information addressing the security situation in Pakistan and Kurrum Agency which noted that the security position had improved. The Minister says that the IAA used the country information, including any temporally relative assessments contained in that country information to inform its view at the date of its decision as to the degree of risk of relevant harm to the appellant if he returned to Pakistan. The Minister also says that the IAA was “clearly cognisant” of the submissions of 20 November 2019 and the references to the country information contained in those submissions. The Minister notes that the IAA recorded that there were decreased reports of attacks against Turis in 2018 and footnoted sources including the DFAT 2019 Report. The Minister observes that the only place that that information appears in the DFAT 2019 Report is at para 3.26 and thus it should not be inferred that the reference was overlooked.
Whilst it is true that the IAA had regard to aspects of the document of 20 November 2019 and country information, it did not specifically take into account in its reasoning an important assessment made as at 20 February 2019 that “Turis in Kurrum Agency still face a moderate risk of sectarian violence from militant groups, because of their Shia faith” [emphasis added]. It is difficult to see how the IAA could reason to a conclusion of no real chance of the appellant suffering any harm from the Taliban or other anti‑Shia Sunni extremists or anyone else now or in the reasonably foreseeable future if the appellant were to return to Kurrum Agency, without addressing two things. First, the express submissions put to the contrary to the IAA by the appellant as described in these submissions. Second, the assessment as at 20 February 2019 recited in bold above.
I am satisfied that in failing to address these two matters, the IAA fell into jurisdictional error and I am satisfied that the primary judge erred by failing to so find. Accordingly, the appeal will be upheld with an order for costs.
I certify that the preceding forty‑eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate:
Dated: 2 June 2022
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