CEO19 v Minister for Immigration & Anor

[2020] FCCA 1472

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEO19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1472

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Pakistan – applicant’s fears found not to be well-founded – whether the Authority failed to consider a claim or material information considered – jurisdictional error established.

Cases cited:

BIL17 v Minister for Immigration [2019] FCAFC 6

Burgess v Minister for Home Affairs (2018) 259 FCR 197

Carrascalao v Minister for Immigration [2017] FCAFC 107

Chan v Minister for Immigration (1989) 169 CLR 379

Collector of Customs v Pozzolanic (1993) 43 FCR 280

DGB18 v Minister for Home Affairs [2019] FCA 1034

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v MZYTS (2013) 230 FCR 431

Minister for Immigration v SZSRS [2014] FCAFC 16

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration (No.2) [2004] FCAFC 263

Tickner v Chapman (1995) 57 FCR 451

Applicant: CEO19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1331 of 2019

Judgment of: Judge Driver

Hearing date: 4 June 2020

Delivered at: Sydney

Delivered on: 24 June 2020

REPRESENTATION

Counsel for the Applicant: Mr S Tully by telephone

Solicitors for the Applicant: Baker & McKenzie

Counsel for the Respondents: Ms A Douglas-Baker by telephone

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 22 May 2019 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Immigration Assessment Authority to reconsider according to law the review referred to it.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1331 of 2019

CEO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(as corrected)

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 May 2019.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the parties. 

3. The applicant’s claims to protection are set out in his signed statement dated 6 April 2017 submitted with his application for a Safe Haven Enterprise Visa (SHEV) (applicant’s statement).[1]  Those claims were supplemented by submissions made on the applicant’s behalf to the delegate[2], before the first decision of the Authority[3], and before the second decision made by the Authority,[4] being the subject of this application.

   [1] Court Book (CB) 74-79.

   [2] Made 10 September 2018 (CB 174-197);CB 124-163.

   [3] Made 21 December 2018 (CB 241-245); CB 225-231.

   [4] CB 263-267.

4. The applicant is a 48 year old man who claimed to fear persecution on the basis of his Pashtun ethnicity, Turi ethnicity, membership of a particular social group (Shia from Parachinar), imputed political opinion (being opposed to the Taliban after his tribespeople had actively fought against the Taliban), and membership of a particular social group (failed asylum seeker and Western sympathiser).[5]  While the applicant referred in his statement in support to Punjab[6] and Sunni extremists[7] as perpetrators of some aspects of the claimed fear of persecutory harm, the applicant identified the Taliban as the primary perpetrators of such harm in his village near Parachinar and in Parachinar itself.[8]

   [5] applicant’s statement at [14].

   [6] applicant’s statement at [14a], [35].

   [7] applicant’s statement at [15], [36].

   [8] applicant’s statement at [15]-[16], [19]-[23], [37]

5. The applicant claimed that the Taliban assumed a strategic position in the mountains surrounding his village in 2007 from which they could launch attacks on Parachinar and surrounding villages.  The applicant recalled that in about 2011 the Taliban launched a missile close to his home.[9]  The applicant recalled four specific attacks on Shia between 2009 and when he fled Pakistan in 2012.[10]  The applicant stated that the journey between Parachinar and Peshawar was extremely dangerous and that many Shias had been kidnapped or killed on the roads, having been targeted by the Taliban.[11] The applicant claimed that the Taliban perpetrated terrorist attacks on schools, targeting Shias,[12] and that the Taliban did not discriminate between leaders and ordinary people.[13]  The applicant claimed that the government of Pakistan was not able to provide meaningful security,[14] and that nowhere in Pakistan was safe for him as Shias are targeted.[15]  By reason of his National ID card, accent and surname, the applicant claimed that he was easily identified as a Shia from Parachinar.[16]

   [9] applicant’s statement at [16].

   [10] applicant’s statement at [19]-[23].

   [11] applicant’s statement at [19].

   [12] applicant’s statement at [25].

   [13] applicant’s statement at [26].

   [14] applicant’s statement at [28].

   [15] applicant’s statement at [32].

   [16] applicant’s statement at [34].

The Authority’s decision

1. The Authority accepted that the applicant’s claims to fear harm on the grounds of religion, ethnicity and tribe had been consistent since his entry interview in 2012.  It accepted at [13] that the applicant is a Turi Shia from a specific sub-tribe from a village near Parachinar.  The Authority also accepted the applicant’s employment history and that the applicant had witnessed two suicide bombings in Parachinar and had heard of an attack on a convoy whilst he was in Peshawar.  It also accepted that he had heard a missile being launched from the mountains near his village in 2011.

2. The Authority found at [15] that the applicant did not claim to have been individually targeted for any reason personal only to him and that he was not someone with a particular profile with the Taliban or any other extremist group.

3. The Authority found, having regard to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Pakistan, 20 February 2019 (2019 Report)[17] and the European Asylum Support Office (EASO) Country of Origin Information Report – Pakistan Security Situation, 16 October 2018 (2018 Report),[18] that from 2014 the Pakistani government had taken measures to address sectarian violence in Pakistan and that since that time there had been “an overall and significant decline in the number of sectarian and terrorist attacks across Pakistan”.[19]  The Authority found at [21] that in the 2019 Report, DFAT’s assessment was that Shias in the former Federally Administered Tribal Area (FATA) faced only a low risk of sectarian violence, but that the risk was higher in Parachinar.  The Authority found at [22]-[23] that there had been a significant decline in the number of sectarian attacks and casualties since 2014 and that road travel was much safer in the region.  While the Authority found that it cannot be said that there is no chance of Shias in Parachinar being targeted in the future, having regard to the significant security measures put in place, the significant decline in sectarian violence in Pakistan and the calm over an extended period, it found that the applicant’s chance of harm as a Turi Shia in Upper Kurram Agency was remote.[20]  The Authority was not satisfied at [25] that the applicant faced a real chance of harm in the reasonably foreseeable future from the Taliban or any other anti-Shia groups for reason of his tribe, religion or particular social group as a Turi Shia in Parachinar or Upper Kurram Agency.

   [17] CB 273, footnote 2 [8].

   [18] CB 273, footnote 3 [8].

   [19] CB 275 at [17]-[18].

   [20] CB 277 at [25].

4. As to the applicant’s claimed fear in relation to the rise of ISIS, the Authority found at [27] that while there had been a leaflet drop in February 2017 containing threats that ISIS was targeting the Shia population, the Pakistani government denied ISIS had any real presence in Kurram Agency and there was no evidence that any threats had been carried out by ISIS.  It also found at [27] the chance of ISIS targeting Shias in Kurram Agency now or in the reasonably foreseeable future was too remote to amount to a real chance.

5. As to the applicant’s claim to fear harm as a Pashtun occasioned by prejudice and profiling in the Punjab and elsewhere in Pakistan, the Authority found that Pashtuns are the second largest ethnic group in Pakistan and while they might experience ethnic profiling and harassment, according to the 2019 Report there is a low risk of official discrimination of Pashtuns in areas where they form the majority.  The Authority noted at [28] that the applicant had not claimed to fear harm in the past on the grounds of his Pashtun ethnicity, that his Pashtun ethnicity did not change or elevate his profile as a Turi Shia and that he did not face a real chance of harm in his home area in the reasonably foreseeable future, even cumulatively as a Turi Shia Pashtun.

6. As to the applicant’s claimed fear that he will be targeted as a returned failed asylum seeker who is seen as a Western sympathiser, the Authority found that at [29] there was nothing before it to indicate that the applicant would face harm or attract the adverse interest of authorities, particularly having regard to the 2019 Report the effect of which is that returnees are typically able to reintegrate into the Pakistani community without repercussions for their attempt to migrate.  The Authority also found at [30], relying on the 2019 Report, that returnees to Pakistan do not face a significant risk of violence or discrimination as a result of having lived in a western country and would not face a real chance of harm even cumulatively as a Turi Shia who is a failed asylum seeker returning from a Western country. 

7. The Authority affirmed the decision under review.

The current proceedings

1. These proceedings began with a show cause application filed on 31 May 2019.  The applicant now relies upon an amended application filed on 4 October 2019.  There are two particularised grounds in that application as amended:

   The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error because:

   1. The IAA failed to consider a claim or relevant information or otherwise erred.

   Particulars

   (a)    The country information before the IAA indicated that:

   (i)     …Turis in Kurram Agency faced a moderate risk of sectarian violence from militant groups by reason of their Shia faith: DFAT country information report (2019) at [3.26].

   (ii)    …according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence…and greater presence of the Taliban and Al Qaeda: DFAT country information report (2019) at [3.19].

   (b) The IAA was required to take into account these assessments: Ministerial Direction No 56 (2013).

   (c) The applicant’s agent had referred to this information in a submission to the IAA dated 11 May 2019: Courtbook at p265 and p266 respectively.

   (d) In its reasons for decision, the IAA failed to consider this claim or information before concluding that the applicant did not face a real chance of harm by reason of sectarian violence from militant groups given his Shia faith: at [25]-[27].

   2. The IAA misconstrued or failed to consider relevant country information, particularly information concerning the risk of road travel for the applicant.

   Particulars

   (a) In its reasons for decision, the IAA concluded that confidence had been restored within the community to resume travel on the Tall-Parachinar Road: at [20], [23].

   (b)The country information before the IAA stated that confidence had been restored within the community for individual (although not large groups) to travel on the Tall-Parachinar Road, although only between dawn and dusk: DFAT 2019 country information report at [3.16].

   (c) In its reasons for decision, the IAA misconstrued or failed to consider this information before concluding that the applicant would not be targeted when travelling on roads within Kurram Agency and to Peshawar: at [23].

2. In addition to the court book filed on 24 July 2019, I have before me as evidence the affidavit of Kate Louise Gillingham made on 3 October 2019, to which is exhibited the country information in issue in these proceedings. 

3. Both the applicant and the Minister filed pre-hearing written submissions and made helpful oral submissions through their counsel at the trial of this matter on 4 June 2020.

Consideration

Applicant’s contentions

1. The applicant presents a finely honed attack upon the Authority decision by reference to its reasons and the country information, which had been called in aid in a submission made to the Authority by the applicant’s representative.

2. The applicant submits that the Authority was selective and incomplete in its use and analysis of country information. Exhibit KLG-1, which is attached to the affidavit of Ms Gillingham, contains the 2019 Report and 2018 Report).

3. Analysis of the details of country information contained in the 2019 Report which refers to current or recent risks to individuals with the applicant's profile, reference thereto made by the applicant’s agent in submissions dated 11 May 2019 and whether they were considered by the Authority are as follows:

Statement in 2019 Report (references are to paragraph numbers in that report)	Referenced in agent’s submissions ?	Referenced in Authority decision ?
[3.13] Turis are not generally distinguishable from other Pashtuns by appearance, but are identifiable by tribal names, accents, and residency in known Turi areas.	Not addressed	Not addressed
[3.13] Most Turis live in Parachinar, lower and upper Kurram Agency, Orakzai, DI Khan, Kohat, and Hangu. Concentration of Turis in small geographic areas, particularly in and around Parachinar and Kurram Agency, renders Turi communities vulnerable to attack.	Not addressed	Not addressed
[3.14] The Taliban and Al Qaeda have gained significant ground in the former FATA, killing many Shi’a— especially in Parachinar, rendering Turis and other Shia tribes of the former FATA amongst the most vulnerable across Pakistan	Addressed quoted at CB266 (in relocation context).	Not addressed
[3.15] Deaths from terrorist attacks in Kurram Agency significantly increased in 2017. DFAT is aware of three attacks targeting Turis in Parachinar during the first six months of 2017, on the grounds of their Shia faith: on 21 January 2017, militants detonated a remote-controlled improvised explosive device in a marketplace in Parachinar; on 31 March 2017 a suicide bomber attacked an imambargah in Parachinar; and on 24 June 2017 two devices detonated in a market in Parachinar. The three attacks killed more than 120 people.	Not addressed	Addressed accurately at [19]
[3.16] This has restored confidence within the community for individuals (although not large groups) to travel on the Tall-Parachinar road, although only between dawn and dusk.	Not addressed	Addressed but inaccurately at [20] & [23]
[3.19] – “the significant risk passage”] While minorities feel more protected, according to the media, discrimination and violence towards Shi’a tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of the Taliban and Al Qaeda.	Addressed - quoted at CB266	Not addressed
[3.19] Turis face some risk of violence while travelling by road to Iran and Iraq on religious pilgrimage, although DFAT understands the government provides security assistance for such journeys.	Not addressed	Not addressed
[3.19] Turis also express concern that the civil war in Syria was spilling over into Kurram and that ISIL, based in Nangarhar, is getting stronger.	Not Addressed	Not addressed (ISIS is referred to at [27])
[3.26] – “the moderate risk passage”] DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram 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 Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi’a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shia groups.	Addressed – quoted at CB 265	Not addressed
[3.80] Most religious minorities face a moderate risk of societal discrimination and violence targeting religious ceremonies and places of worship. However, DFAT assesses that the risk of violence and societal discrimination based on religion varies across different groups and locations within Pakistan. DFAT assesses sectarian violence disproportionately affects religious minorities in Pakistan.	Not addressed	Not addressed
[3.101] Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile.	Not addressed	Not addressed
[3.111] DFAT assesses that Shi’a 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 Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.	Addressed at CB265	Addressed at [21]
[2.72] The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change. The state's use of Islam to foster Pakistan's national identity complicates counter-radicalisation efforts and undermines the status of non-Muslim groups in the country.	Addressed – quoted at CB267 (in relocation context).	Partly addressed at [22]
[2.66] The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan.	Addressed at CB266	Partly addressed at [22]

1. Similarly, specific details about country information contained in the 2018 Report which refers to current or recent risks to individuals with the applicant's profile, reference thereto by the applicant’s agent in submissions dated 11 May 2019 and whether they were considered by the Authority are as follows:

Statement in 2018 Report (references are to EASO page numbering)	Referenced in agent’s submissions ?	Referenced in Authority decision ?
[page 78] In 2017, a “significant” increase in violent incidents was observed in [Kurram Agency] compared to 2016 by FRC. In total, FRC counted 52 violent incidents in 2017 compared to 19 in 2016. A very high increase was observed in the number of casualties. The majority of these casualties were civilians (138 death and 437 injured).	Addressed – quoted at CB264	Not addressed
[page 78] According to PIPS, militants of the TTP, Jamaat-ul Ahrar, LeJ, LeJ-Alami, and some unknown militants carried out 11 terrorism related attacks [in Kurram Agency], causing the most casualties in the FATA.	Not addressed	Not addressed
[page 78] FRC states that ISKP was also responsible for several attacks in this [Kurram] agency.	Not Addressed	Not addressed
[page 78] In the first three months of 2018, FRC counted 7 casualties (6 deaths, 1 injured) [in Kurram Agency].	Addressed – quoted at CB264	Not addressed
[page 79] An IED exploded at a market in Parachinar on 20 January 2017, killing at least 25 persons.	Addressed- quoted at CB265	Addressed at [19] (but Authority relying on 2019 Report not 2018 Report)
[page 79] On 31 March 2017, a suicide bomber targeted a Shia mosque near Parachinar, killing 23 persons and injuring more than 100.	Addressed – quoted at CB265	Addressed at [19] (but Authority relying on 2019 Report not 2018 Report)
[page 79] On 25 April 2017 [in Kurram Agency], a roadside blast targeted a passenger’s vehicle, killing at least 14.	Addressed – quoted at CB265	Addressed at [20] (but unclear if Authority relying on 2019 Report or 2018 Report)
[page 79] On 23 June 2017, twin blasts occurred on a market in Parachinar, killing 67 and injuring more than 200.	Addressed – quoted at CB265	Addressed at [19] (but Authority relying on 2019 Report not 2018 Report)
[page 79] On 30 January 2018 [in Kurram Agency], an IED explosion killed six people and injured one.	Addressed – quoted at CB265	Addressed at [20] (but unclear if Authority relying on 2019 Report or 2018 Report)
[page 7] [In 2017] most victims of sectarian-related violence were documented in Kurram Agency in the FATA, Quetta in Balochistan and Dera Ismael Khan in KP.	Not addressed	Not addressed
[page 82] FRC documented 1 207 casualties (539 deaths and 668 injured) in the FATA in 2017. This is an increase of 37 % in terms of casualties compared to 2016. The biggest part of these fatalities were civilians (760 casualties), followed by militants (290 casualties). According to FRC, the high rate of civilian casualties is due to the four ‘high profile, coordinated and complex terrorist attacks’ in Kurram agency during the first half of 2017. CRSS counted 436 fatalities in 2017, compared to 495 fatalities in 2016, is a slight decrease. The most affected regions of the FATA were Kurram Agency, Khyber Agency and Mohmand Agency. CRSS counted 171 casualties (92 fatalities, 86 injured) in the first half of 2018. In the second quarter of 2018, fatalities and injured increased in the FATA compared to the first quarter of 2018. Agencies most affected with casualties in the first half of 2018 were North Waziristan, South Waziristan and Kurram Agency.	Not addressed	Not addressed

1. The Authority is also said to have cited out-of-date country information reports from DFAT and EASO.  At footnote 13 of its reasons for decision, the Authority referred to EASO’s EASO Country of Origin Information Report – Pakistan Security Situation dated 1 July 2016. EASO had since released a more up to date Country of Origin Information Report dated 16 October 2018.[21] So too at footnote 24, the Authority cited DFAT’s Country Information Report on Pakistan dated 1 September 2017. DFAT had also since released a more up to date Country Information Report for Pakistan dated 20 February 2019, being the 2019 Report. The Authority was aware of the existence of these more up-to-date versions and expressly referenced them in its reasons for decision.[22] Nevertheless, the Authority is said to have adopted a somewhat piecemeal approach when considering the most contemporaneous evidence available to it. In that context, the Authority is said to have committed jurisdictional error in two specific respects.

Failure to consider a claim, failure to consider relevant information or other error 

[21] see Exhibit KLG-1(b)

[22] eg at [7] and [8], footnotes 2 and 3.

1. Among the country information referred by the applicant’s agent to the Authority in submissions dated 11 May 2019[23] were two items of country information from the 2019 Report:

   a)that according to the media, discrimination and violence towards Shia tribes, particularly Turis, remains significant in Kurram Agency due to state concerns regarding Iranian influence and greater presence of the Taliban and Al Qaeda;[24] and

   b)that Turis in Kurram Agency faced a moderate risk of sectarian violence from militant groups by reason of their Shia faith.[25]

   [23] at CB 265-266.

   [24] at [3.19] of the 2019 Report.

   [25] at [3.26] of the 2019 Report.

2. The Authority considered at [25] that the applicant’s chance of harm as a Turi Shia in Upper Kurram Agency was “remote". The Authority is said to have adopted a selective approach in its analysis of the 2019 Report. It comments that, in DFAT’s most recent report, Shias in the former FATA faced only a low risk of sectarian violence, but that for Shias in Kurram Agency, particularly in Parachinar, the risk was higher than other parts of the former FATA.[26] The Authority cited the 2019 report at page 38, which appears to be a reference to [3.111] of that report.

   [26] at [21].

3. In any event, by concluding at [25] that the applicant’s chance of harm as a Turi Shia in Upper Kurram Agency was “remote”, the Authority is said to have failed to consider that the 2019 Report has assessed that very same risk as “moderate”. DFAT assessed that Turis in Kurram Agency still faced a “moderate” risk of sectarian violence from militant groups because of their Shia faith.[27]  The applicant submits that this moderate risk passage has to be understood in the context of the 2019 Report as a whole, page 6 of which defined “moderate risk” as meaning that DFAT “was aware of sufficient incidents to suggest a pattern of behaviour”. The Authority, by contrast, only considered the definition of “low risk”, at [21]. Furthermore, the 2019 Report noted at 3.111 the higher risk for Shias in Kurram Agency, particularly in Parachinar. That notation appears to expressly contemplate the kind of qualification contemplated by the moderate risk passage.

   [27] at [3.26] of the 2019 Report.

4. The applicant submits that the Authority failed to refer to the moderate and significant risk passages in its reasons for decision, including by way of direct quotation or consideration of its substance. Nor did it proffer any reasons as to why it assessed the level of risk as being lower than the 2019 DFAT Report which it was obliged to consider, or whether there had recently been a sufficient number of incidents to suggest a pattern of behaviour.

5. The Authority’s finding impugned by the applicant in these proceedings is said to have been preceded by a potential misapplication or misconstruction of the real chance test. With reference to the applicant’s status as a devout Shia in its reasons for decision at [24], the Authority considered that the level of security now present in Parachinar makes such attacks [being attacks on Shias during religious events] “unlikely”. However, the threshold for a real chance of suffering serious harm is a “real possibility” that is not remote, which could include something which might be considered unlikely.[28] The Authority’s unlikelihood finding at [24] was an intermediate step in reasoning towards its conclusion at [25] that the applicant’s chance of harm as a Turi Shia in Upper Kurram Agency was “remote”.  The applicant submits that, accordingly, the Authority’s finding of remoteness was infected by the prior (and incorrect) application of a likelihood test.

   [28] Chan v Minister for Immigration (1989) 169 CLR 379 at 389.

6. In DGB18 v Minister for Home Affairs[29] at [83], the Court stated:

   The Tribunal’s selection of country information and the weight that is given to it is undoubtedly a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]. That, however, does not mean that the Tribunal’s findings based on the country information are completely shielded from judicial review. Like other findings of fact, findings based on country information can be challenged on the basis that they were not open on the material, or were illogical or irrational. In some circumstances, albeit fairly extreme ones, a Tribunal’s unreasonable selection or assessment of country information may provide the basis for findings of apprehended bias or legal unreasonableness. It was accordingly incumbent on the primary judge to engage with and consider the arguments that were apparently raised on the appellants’ behalf in relation to the country information.

   [29] [2019] FCA 1034.

7. Jurisdictional error can be established if a decision-maker overlooks material which is centrally relevant to the function it has to perform. In Minister for Immigration v MZYTS[30] at [70], the Full Federal Court described the Authority’s statutory obligation or task in circumstances where an applicant had argued that there were growing risks of politically-motivated violence for people like him in Zimbabwe for which he had provided updated country information. The Full Federal Court stated 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.

   [30] (2013) 230 FCR 431.

8. The applicant submits that so too in this case has there been a failure to conduct the requisite statutory review. As had occurred in BIL17 v Minister for Immigration[31] at [63], the active intellectual engagement was misdirected in a way that resulted in failing to undertake the review that was invited by the nature of the claim advanced and the material before the Authority concerning that claim. The Authority did not deal with country information that was “germane to the nature of the claim advanced”.

   [31] [2019] FCAFC 6.

9. The applicant contends that the Authority’s finding that the chance of harm to the applicant as a Turi Shia in Upper Kurram Agency was remote was critical and material to its decision because it was one reason why the applicant could safely return there. That finding starkly contrasts with the delegate’s finding[32] and the available country information. Evidence is said to have been ignored which, having regard to the course of the Authority’s decision-making, was important to the exercise of its jurisdiction.[33] The Authority failed to consider evidence which was credible, relevant and significant to assessing the applicant’s claims.

   [32] CB 182.

   [33] Minister for Immigration v SZSRS [2014] FCAFC 16 at [54].

10. As an alternate characterisation to an allegation that the Authority failed to consider relevant information, the applicant submits that the Authority committed jurisdictional error by failing to address a claim or an integer of his claims. The Authority had to address expressly articulated claims and those claims clearly arising on the materials before it.[34]

    [34] NABE v Minister for Immigration (No.2) [2004] FCAFC 263 at [60].

11. The applicant’s agent’s submissions of 11 May 2019 quoted the moderate risk passage and referred to the significant risk passage from the 2019 Report. That submission sought to address the risks faced by the applicant on return to his home village in Parachinar, and particularly those arising from sectarian violence. The moderate and significant risk passages were express elements of the applicant’s claims and clearly relevant to an assessment of them. The applicant had claimed that, as a Turi in Kurram Agency, he faced a “moderate” risk of sectarian violence from militant groups because of his Shia faith if compelled to return. The Authority failed to refer to this claim, as well as the country information to which it related.

12. The applicant submits that a third characterisation of the nature of the error is that the Authority misconstrued or misapplied Ministerial Direction No 56 (2013). That Direction provides that, where DFAT has prepared a country information assessment expressly for protection status determination purposes which is available, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.[35] To take into account, or consider, required the Authority to engage in an active intellectual process in reviewing the material before it.[36]  The Authority was required to take into account the 2019 DFAT Report.  The applicant submits that, although the Authority referred to the 2019 DFAT Report in its reasons for decision, it could not be said to have properly considered that report as required by Ministerial Direction No 56 because it did not consider the moderate and significant risk passages.

Misconstruction or failure to consider information about the risk of road travel

[35] Direction No 56 was revoked by Direction No 84 on 24 June 2019.

[36] Burgess v Minister for Home Affairs (2018) 259 FCR 197 at [81]–[85].

1. The Authority referred to the security situation on the Tall-Parachinar Road at several points in its reasons for decision. For example, the Authority stated that Shia Turis in Parachinar had reported significantly fewer road attacks, and that confidence had been restored in the community to resume travel on the Tall-Parachinar Road.[37] The Authority also stated that, as DFAT had recently reported, confidence had been restored within the community to resume travel on the Tall-Parachinar Road.[38]

   [37] CB 276 at [20], citing the 2019 Report.

   [38] CB 276-277 at [23], and referring to the 2019 Report generally.

2. However, the applicant submits that the Authority misinterpreted the substance of the 2019 DFAT Report regarding the risks of travel on the Tall-Parachinar Road. DFAT’s conclusion that confidence had been restored within the community to resume travel on the Tall-Parachinar Road was not unqualified. DFAT had in fact stated that confidence had been restored “within the community for individuals (although not large groups) to travel on the Tall-Parachinar road, although only between dawn and dusk”.[39] The Authority makes no reference to these qualifications in its reasons for decision. The Authority misconstrued or failed to consider this information before concluding that the applicant would not be targeted when travelling on roads within Kurram Agency to Peshawar.

   [39] at [3.16] of the 2019 Report.

3. The security situation on the Tall-Parachinar road, the degree of confidence that could be attached to travel on it and the safety precautions that had to be taken by travellers was not unqualified. The applicant submits that by understating the degree of risk of travel on the Tall-Parachinar road or inaccurately reflecting what the country information in fact indicated, the Authority must be taken to have misconstrued or misunderstood that evidence. The Authority is said to have committed jurisdictional error by failing to consider probative evidence which was critical, relevant and significant to the proper assessment of the applicant’s claims.

Minister’s contentions

Ground 1: failure to consider a claim or relevant country information

1. The Authority’s consideration and analysis of the applicant’s claim to fear harm as a Turi Shia in Upper Kurram Agency is set out above, including its finding as to the chance of harm being remote and its reasons for making this finding.  A summary of the Authority’s findings and reasons addressing the issue of the risk of sectarian violence to a Turi Shia living in Parachinar is also set out above. 

2. Critically, the Authority accepted that Turi Shias in Kurram Agency, particularly in Parachinar, faced a higher risk of sectarian violence than elsewhere in the former FATA (the risk of sectarian violence elsewhere in the former FATA being a “low risk”).  In making this finding the Authority plainly accepted and applied the substance of the 2019 Report at [3.111][40]: 

   3.111DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, … DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.

   (emphasis added)

   [40] The pinpoint reference in the decision is to “p 38” of the 2019 Report (CB 276 at [21], footnote 17).

3. Paragraph [3.111] of the 2019 Report sets out DFAT’s assessment of the risk of sectarian violence in parts of the former FATA – the former FATA generally and Parachinar in particular. That assessment is expressly referred to and accepted by the Authority at [21]. Though the Authority expressly refers to the definition of “low risk” and omits reference to the definition of “moderate risk”, the Authority nonetheless reflects upon a key feature of the definition of “moderate risk”, the number of attacks on Shias in Parachinar and in Kurram Agency generally since 2017.

4. The Authority accepted the submission made on the applicant’s behalf that the underlying conditions for militancy continued in 2018 (a reference to [2.72] of the 2019 Report),[41] but also had regard to [2.91][42] of the 2019 Report in finding that there had been a significant decline in attacks and casualties since 2014 following government intervention, and that the frequency of sectarian attacks had continued to reduce annually since that time at [22]. The Authority also referred (but not in terms) to paragraph [3.16] of the 2019 Report in [23] of its decision when it addressed the improved security and safety for road travellers on the Tall-Parachinar Road since 2018 by reference to reported attacks and the restoration of confidence to resume travel.

   [41] The pinpoint reference in the decision is to “p 18” of the 2019 Report (CB 276 at [21], footnote 18).

   [42] The pinpoint reference in the decision is to “p 21” of the 2019 Report (CB 276 at [22], footnote 19).

5. At [3.26] of the 2019 Report, DFAT referred to there being a trend of decreased reports of attacks on Turis in 2018, the likelihood that trend would continue in 2019, that attacks and violence can and may still occur, and DFAT’s assessment that Turis in Kurram Agency faced a moderate risk of sectarian violence due to Shia faith. While the Authority did not in terms refer to [3.26] of the 2019 Report or to there being a “moderate” risk of sectarian violence, it plainly accepted that there was a higher risk of sectarian violence in Kurram Agency than the lower risk for Turi Shias elsewhere in the former FATA at [21]. The Authority also considered the risk of violence against countervailing factors, in particular government intervention since 2014 and the effect of that intervention. This is a matter reflected in terms in the 2019 Report (e.g., [2.91]).

6. The Minister submits that in context, and read fairly, the Authority’s finding at [21] that Turi Shias in Kurram Agency, particularly in Parachinar, faced a higher risk of sectarian violence than elsewhere in the former FATA was not inconsistent with the 2019 Report nor did that aspect of its reasons manifest a selective use of the 2019 Report. 

7. In considering the applicant’s being a devout Shia, the Authority considered at [24] reports of recent attacks or threats of attacks on high profile public religious events targeting Shias in or near Parachinar, and concluded that, having regard to the level of security now present in Parachinar (understood in context of the Authority’s reasons as a whole as a reference to government intervention since 2014), such attacks were unlikely. 

8. The word “unlikely” is deployed so as to express an intermediate factual finding as to the chance of a specific factual matter, being the absence of attacks or threat of attacks in relation to high profile religious events targeting Shias in the vicinity of Parachinar, having regard to the changed security situation in Parachinar since 2014. 

9. Having made this finding on a specific factual matter, together with a series of other detailed factual findings at [16]-[23] addressing the risk of sectarian violence since the government intervention in 2014, the Authority concluded at [25] that while it could not be said there was no chance Shias would be targeted in the future, the applicant’s chance of harm as a Turi Shia in Upper Kurram Agency is “remote”.  The Minister submits that having regard to the reasons as a whole, but particularly [16]-[23], it is plain that the Authority considered matters of demography at [16], reported incidents of sectarian violence (including road attacks), the fact and effect of government intervention in sectarian violence and safety and security on the Tall-Parachinar Road at [17]-[22], consistent with the 2019 Report in making its ultimate finding that that the applicant’s chance of harm was “remote”.  The Authority also considered the submission that the underlying conditions for militancy continued, but did so in light of [2.91][43] of the 2019 Report and the annual reduction in the frequency of sectarian attacks since the commencement of government intervention in 2014.  The Minister submits that, having regard to all of these matters, the Authority concluded at [25], as was open to it on the material before it,[44] that the risk of harm was “remote” (and therefore not a real chance), consistent with well-established authority.[45]

   [43] The pinpoint reference in the decision is to “p 21” of the 2019 Report (CB 276 at [22], footnote 19).

   [44] DGB18 at [83], per Wigney J.

   [45] Chan at 389 per Mason CJ, at 396-398 per Dawson J, at 406-407 per Toohey J, at 428-429 per McHugh J; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration v Guo (1997) 191 CLR 559 at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

10. The Minister contends that when the Authority’s reasons are read as a whole, it cannot be said that the Authority failed to consider the applicant’s claim to fear sectarian violence, whether by reference to passages of the 2019 Report quoted in submissions on behalf of the applicant or otherwise.  When the Authority’s reasons are read as a whole, it cannot be said that the Authority failed substantively to consider, as required by law,[46] the country information before it, specifically the 2019 Report.

    [46] Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ, at 476-377 per Burchett J, at 495-496 per Kiefel J; Carrascalao v Minister for Immigration [2017] FCAFC 107 at [47], per the Court (Griffiths, White and Bromwich JJ); BIL17 [62], per Griffiths, Gleeson and Colvin JJ.

Ground 2: failure to consider information about the risk of road travel

1. The Authority’s reasons, including the extent to which it considered, or made express reference to any aspect of, country information, must be understood in context of the claimed circumstances of the applicant and his claims to fear harm.  The applicant’s claim to fear harm on the road between Parachinar and Peshawar arose in the context of his travelling to Peshawar as a self-employed taxi driver transporting people with medical needs.[47]  The applicant claimed to fear harm on the road from the Taliban, either from planted mines or his vehicle being shot at because the Taliban knew it was carrying only Shia passengers.  The applicant also claimed to fear capture and ransom.[48]  The applicant recalled the attack on a government patrolled convoy in 2009/2010.[49]

   [47] applicant’s statement at [18].

   [48] applicant’s statement at [19].

   [49] applicant’s statement at [20].

2. The claims advanced by the applicant were specific to his work as a taxi driver operating a single vehicle during the period 2001 to 2006, to a lesser extent from 2006 to 2012.[50]  More generally, the applicant claimed to fear harm in his village from missile attacks by the Taliban and to fear harm in Peshawar. 

   [50] applicant’s statement at [11], [18].

3. Having made reference to a spike in targeted (to Turi Shias) killings on the Tall-Parachinar Road between 2009 and 2014,[51] the Authority gave extensive consideration at [17]-[18] and [20] to government intervention in the security situation in Kurram Agency since 2014 as disclosed in the 2019 Report, and referred to the country information (including that referred to by the applicant’s then current and former representatives)[52] to the effect there had been no reported incidents on the road since January 2018.[53]

   [51] At [3.14] of the 2019 Report; The pinpoint reference in the decision is to “p 25” of the 2019 Report (CB 276 [16], footnote 6).

   [52] see CB 276, footnote 16.

   [53] CB 276 at [20], CB 277 at [23]

4. Having regard to the Authority’s reasons as a whole, it is plain that the Authority ascribed greater weight to the broader security situation in Pakistan (in particular following government intervention since 2014) and the empirical evidence of risk of attacks on the road (and more generally in the area around Parachinar), than it did to DFAT’s report of community “confidence” or any qualifications to the characterisation of community confidence.  Moreover, the Authority plainly considered the applicant’s claims to fear harm on the road in context of his broader and central claim to fear harm from the Taliban.  In doing so, the Authority gave extensive consideration at [17]-[18] and [20] to government intervention in the security situation in Pakistan (and specifically the former FATA) since 2014), including the implementation of the National Action Plan to combat terrorism across Pakistan, Operation Zarb-e-Azb in the former FATA, and the establishment of a red zone around Parachinar secured by the military.

5. In context of the reasons as a whole, and the passing reference in the 2019 Report to community “confidence” (qualified or not), the applicant’s submission that a failure, when referring in general terms to reported “confidence”, to refer to two qualifications, constitutes the Authority understating the degree of risk of travel, misconstruing or misunderstanding the evidence and thus failing to consider probative evidence, should not be accepted.

6. Care needs to be taken when isolating information in a lengthy country information report.  Particular care needs to be taken when isolating two qualifications to a passing reference in a lengthy country information report to something as relatively immeasurable as community “confidence”.  That is particularly so where the country information report is substantively addressed to measurable or empirical matters, such as the incidence of violence over time or specific to geographic location, circumstance, or particular groups. 

7. In circumstances where plainly the content of the 2019 Report was extensively traversed by the Authority and the substance of the 2019 Report, as relevant to the specific circumstances of the applicant, was considered at length by the Authority, acceptance of the submission that a failure to refer to two qualifications to a passing reference to something as relatively immeasurable as community “confidence” invites an impermissible approach to the construction of the Authority’s reasons.[54]  Plainly, the Authority ascribed lesser weight to reported community “confidence” than to the empirical evidence of the effects of the improved security situation following government intervention and the finer details of the nature and effect of that government intervention.

   [54] Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, cited with approval in Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZCBT v Minister for Immigration [2007] FCA 9 at [26] per Stone J referring to Wu Shan Liang at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ (Kirby J stated at 291 that it is erroneous to comb “through the words of the decision-maker with a fine appellate tooth-comb”).

Resolution

1. Ground 1 asserts a failure to consider a claim or relevant information by reference to parts of two paragraphs, [3.26] and [3.19], of the 2019 Report), particularised in the amended application (particulars (a)(i) and (ii)).  In substance, the applicant submits that the Authority was selective in its use of the country information, in particular in its use of the 2019 Report, thus misconstrued the country information and fell into error.  The applicant identifies as supportive of the Authority’s selective use of the country information, the failure to make express or substantive reference to “moderate risk”.

2. I find that this ground has been established.  The determination of the degree of risk confronting the applicant on return to Pakistan was critical to the outcome of the review.  The assessment of “moderate risk” in the 2019 Report was thus of fundamental importance.  That needed to be discussed in the Authority’s reasons and it was not.  The assessment of “moderate risk”, as defined, gave to the risk of harm a systematic or targeted quality.  Having accepted from the 2019 Report that the applicant faced a higher level of risk in his home region than other Shias in the former FATA the Authority could not, in my view, arrive at a conclusion that the risk he confronted was “remote” without explaining how and why the Authority departed from the assessment of “moderate risk” in the 2019 Report.

3. The applicant’s submissions in this regard are well put and I accept them.  Highly relevant material which could have been determinative was overlooked by the Authority which sounds in jurisdictional error. 

4. Ground 2 asserts a failure to consider information about the risk of road travel, specifically that community confidence to travel was subject to two qualifications: (i) travel by individuals and not large groups, and (ii) travel between dawn and dusk.[55]  The applicant submits that the Authority made no reference to either of these qualifications in its findings and therefore misconstrued or failed to consider this probative evidence.

   [55] at [3.16] of the 2019 Report

5. I accept that in its reasons the Authority was selective in its use of country information concerning the risk of road travel.  This was an error but it is not clear whether the error was material and thus jurisdictional.  In the absence of a claim by the applicant that he would need to travel the road in large groups or at night, the qualification in the country information passed over by the Authority would not be material.  No such claim was put in the proceedings before me and, accordingly, I find that jurisdictional error has not been established in relation to Ground 2, although it would be prudent for the issue to be addressed further on remittal to the Authority. 

Conclusion

1. The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error.  He should, therefore, receive the relief he seeks.  I will make the necessary orders.

2. I will hear the parties as to costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 8 July 2020

CORRECTIONS

Paragraph 27, line 4       deleted “Tribunal’s” and replaced with “Authority’s”
Paragraph 54, line 5       deleted “Tribunal’s” and replaced with “Authority’s”
Paragraph 54, line 9       deleted “Tribunal” and replaced with “Authority”