CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 354
•22 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CJV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 354
File number(s): SYG 1487 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 22 March 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal 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 Tribunal applied the wrong test or overlooked aspects of the applicant’s claims considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36 Cases cited: AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47
Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189
CEO19 v Minister for Immigration & Anor [2020] FCCA 1472
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
CID15 v Minister for Immigration and Border Protection [2017] FCA 780
CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1663
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10
Number of paragraphs: 58 Date of hearing: 25 February 2021 Place: Sydney Solicitor for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers Counsel for the Respondents: Mr T Reilly Solicitors for the Respondents: Minter Ellison ORDERS
SYG 1487 of 2019 BETWEEN: CJV19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
22 MARCH 2021
THE COURT ORDERS THAT:
1.The application as further amended by leave on 22 January 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 May 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Pakistan who arrived in Australia on 9 September 2014 as the holder of a student visa.
The applicant applied for a protection visa on 28 January 2015.[1]
[1] Court Book (CB) 1-44
The delegate interviewed the applicant on 14 July 2015. On 6 May 2016, the delegate refused to grant the applicant the visa.[2]
[2] CB 366-388
The applicant sought review of the delegate's decision by the Tribunal. The Tribunal held a hearing before the Tribunal on 9 April 2019.[3] As noted above, on 23 May 2019 the Tribunal affirmed the delegate’s decision.[4]
[3] CB 541-543
[4] CB 657-698
The applicant's claims
The applicant claimed to fear harm as a Pasthun Turi Bangash Shia who is considered a traitor and an infidel by Sunni extremist groups. The applicant claimed to be a member of the Imamia Student Organisation (ISO) and was involved in Shia activism and holds anti-Sunni political views. The applicant claimed to fear harm on account of his education, family and perceived wealth. The applicant claimed to be a member of particular social groups comprising various aspects of his profile.[5]
Tribunal decision[6]
[5] at [6], [24], [26], [139]
[6] CB 658-695
The Tribunal set out relevant background and summarised the applicant claims and evidence provided to the Minister’s Department at [4]–[48]. The Tribunal also summarised in detail the applicant claims and evidence throughout the process of review at [49]–[130]. The Tribunal set out the relevant criteria for the grant of a protection visa at [131]–[136].
The Tribunal acknowledged the applicant's evidence regarding stress, anxiety and depression but found at [141] he was “able to give evidence and present his arguments”.
When the Tribunal ultimately came to considering the applicant's claims, it accepted at [145] the applicant's family were “resourceful and well-positioned within their community” and that his father was a Jirga member and his grandfather is a Malik. The Tribunal accepted at [148]-[149] the applicant was a member of ISO but found he embellished his claims about his profile and found he was not targeted for this reason. On the basis of country information, the Tribunal accepted at [150] the applicant was in a van that was shot at but not that he was targeted.
The Tribunal was not satisfied at [152] that the applicant's father had a profile that would result in targeted attacks. The Tribunal did not accept at [165] that the applicant would be considered to have a profile of an intellectual educated in the West. Having regard to country information, the Tribunal did not accept at [173]-[174] the applicant would face harm on account of his ethnicity or tribe identity. The Tribunal also rejected the applicant's claims about his Shia religion at [175] and political opinion at [176]. The Tribunal found at [177] the applicant would not face harm because of any perception he is wealthy. The Tribunal expressly considered and rejected the applicant's claims to fear harm as a member of various particular social groups at [179]–[181] and as a failed asylum seeker at [182].
For those reasons, the Tribunal rejected at [184] the applicant's claims and was not satisfied that he met the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Migration Act). For the same reasons, the Tribunal found at [190] that the applicant failed to satisfy the complementary protection criterion under s 36(2)(aa) of the Migration Act. In this context, the Tribunal found at [189] the applicant would have the support of his family and be able to secure employment.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 18 June 2019. The application has been amended twice since then. The applicant now relies upon a further amended application filed by leave on 22 January 2021. There are two grounds in that application, numbered 1 and 3:
1. The Tribunal constructively failed to exercise its jurisdiction, or purported to exercise it in a manner that was legally unreasonable, by applying a wrong test to the assessment of whether the Applicant faced a real chance of persecution or a real risk of significant harm.
Particulars
Either:
(a) The Tribunal applied a test of relative safety based on improvements in the security situation in Pakistan. It failed to make an assessment of the actual level of risk faced by the Applicant; or
(b) The Tribunal failed to correctly apply the "real chance" test as set down by the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. It accepted at [169] that Turis faced "a moderate risk of sectarian violence from militant groups because of their Shia faith" but then found at [177] that because there was not a "high level of sectarian violence experienced by Shias in the region" the Applicant did not face "any more than a remote chance of being seriously harmed should he return to his home".
3. The Tribunal failed to consider certain aspects of the Applicant's claims.
Particulars
(a) The Applicant claimed to fear persecution or significant harm on the basis of being accused of blasphemy.
(b) The Applicant claimed to fear significant harm from extortioners
…
(d) Although the Tribunal claimed that the Applicant could live in Parachinar it did not make any finding as to whether he could travel safely to Parachinar given his mental health issues and identifiable scars on his body.
The Tribunal did not address those claims.
In addition to the court book in two volumes filed on 11 September 2019, I have before me as evidence the affidavit of Zachary Newcombe Payne McCaughan made on 8 February 2021, to which is annexed the Department of Foreign Affairs and Trade (DFAT) Country Information Report on Pakistan dated 20 February 2019 (DFAT Report).
A further affidavit annexing a transcript of the Tribunal hearing was not read.
CONSIDERATION
Applicant’s contentions
Ground 1
The Tribunal's findings rejecting the applicant's claims:
(a)at [183]-[184][7] that he was a refugee;[8] or
(b)at [190][9] that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there was a real risk that he would suffer significant harm,[10]
were based on the Tribunal's assessment of the level of risk faced by the applicant as a Shia intellectual of Turi Bangash ethnicity with a family background in the Parachinar Jirga system.
[7] CB 694
[8] Migration Act, ss 36(2)(a), 5H and 5J
[9] CB 695
[10] Migration Act, s 36(2)(aa) and 36(2A)
The applicant had provided extensive evidence of the security situation facing Shia Turis in Pakistan in general and the Upper Kurram Agency in particular.[11]
[11] CB 338-389, 347, 351-364, 451-525, 552-566, 576-613, 618-648
At [167]-[168][12] the Tribunal quoted extensively from the DFAT Report.[13] At [136][14] it noted that in accordance with Ministerial Direction 56 (as then in force) it had taken account of relevant country information assessments prepared by DFAT expressly for protection status determination purposes. The relevant DFAT Report states at page 8 that it was prepared for that purpose only.
[12] CB 688-689
[13]The report annexed to Mr McCaughan’s affidavit is available online at
[14] CB 680
It goes without saying that the Tribunal should consider any relevant information before it. However the fact that a Direction under s 499 specifically states that the Tribunal "must take into account" such an assessment implies that it is to be given special consideration and weight compared with other information that it might have.
The lengthy quotations from the DFAT Report describe a security situation in Pakistan that continues to be in flux. While quoting at [170] from the report that "military operations have improved the security situation for Shia in the Kurram Agency and Parachinar", the Tribunal leaves out the immediately following remarks: "[The military operations] have also restricted freedom of movement and limited the community’s access to essential services and trade opportunities [and] have also displaced many Turis, and some of the many who have since returned to their homes have faced extensive damage to property and crops".[15]
[15] Page 26 at [3.17]
The Tribunal's conclusion at [170] is that:
While the Tribunal accepts that the situation in Parachinar and Kurram Agency is not completely settled and the overall situation in Pakistan remains somewhat fluid there is no evidence before the Tribunal to indicate that the government is reducing or removing its security operations such that the situation in that region will deteriorate in the foreseeable future.
The applicant submits that simply finding that there is no evidence that the "improved" situation is likely to "deteriorate" constitutes a failure to apply the correct test, which is one of whether there is an absolute risk of real harm. The Tribunal is said to have fallen into the error identified by Moshinsky J in CID15 v Minister for Immigration and Border Protection[16] at [10], although on a temporal rather than a geographical basis, as in CJE16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[17]
[16] [2017] FCA 780
[17] [2019] FCA 1663
In AKH16 v Minister for Immigration and Border Protection[18] Middleton and Mortimer JJ stated at [50]:
In considering whether objectively there is a well-founded fear, the decision-maker should not look to statistics or projections divorced from the fear as articulated by the applicant for a protection visa. At all times the decision-maker must look to the individual applicant’s circumstances to determine whether that applicant, in the circumstances to which she or he will return to her or his country of nationality, has a well-founded fear of persecution. Further, in considering whether the fear is well-founded, the Court must consider the totality of the circumstances.
[18] [2019] FCAFC 47
The Tribunal accepted at [142][19] that the applicant was a Turi Bangash Shia from Parachinar, which is in the Kurram Agency. At [169][20] it referred to the DFAT Report's finding that "attacks and violence against Turis may still occur" and so DFAT assessed Turis as "facing a moderate risk of sectarian violence from militant groups because of their Shia faith".[21] It did not refer to the definition of the term "moderate risk" given in the same report: "DFAT is aware of sufficient incidents to suggest a pattern of behaviour".[22]
[19] CB 682
[20] CB 690
[21] See DFAT Report , page 27 at [3.26]
[22] “Terms used in this report”, page 6
In assessing whether Australia has protection obligations in respect of an applicant the Tribunal must apply the test of a "real chance" in Chan Yee Kin v Minister for Immigration & Ethnic Affairs.[23] The same test is applicable the "complementary protection" alternative of "real risk".[24]
[23] (1989) 169 CLR 379
[24] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246]
A real chance is one that it "substantial, as distinct from remote", even if less than 50% (per Mason CJ at [12]), discounting what is "remote or insubstantial" (per Toohey J at [26]). The probability could be as little as 10%, excluding only a "far-fetched possibility" (per McHugh J at [35]). Put shortly, a real chance is any chance that is not remote, insubstantial or far-fetched. When DFAT states that Turis face a moderate risk of sectarian violence for reasons of their religion, it is clearly assessing the level of risk as being well above the threshold set in Chan.
At [171][25] the Tribunal refers to the DFAT use of the term "moderate risk" but states that "more recent country information indicates that Shia leaders since June 2018 have been encouraging repatriation to the Parachinar area." This "more recent" information appears to be the media reports referenced in footnote 9,[26] some of which refer to Sunni tribes returning to the area and all of which actually pre-date the DFAT Report, which makes no mention of repatriation to the area.
[25] CB 691
[26] CB 690
The applicant submits at [175][27] the Tribunal appears to use an ever higher standard than moderate. It says that it is not satisfied that there is a "high level of sectarian violence experienced by Shias in the region", but goes on from there to find that there is no more than a remote chance that the applicant would suffer harm if he returned home.
[27] CB 692
The applicant contends that the Tribunal's ultimate finding that the risk of harm to the applicant is remote is not one that has any basis in the evidence before it.
The applicant notes that DFAT's use of the term "moderate risk" was referred to recently in BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[28] At [125] Murphy J stated:
Third, it is correct that the IAA said that “DFAT assesses that Turis in Parachinar face a moderate risk of sectarian violence from militant groups, because of their Shia faith.” However, contrary to the appellant’s submissions, this does not show that the IAA fell into jurisdictional error in finding (at [52]) that there is not a real chance that he will suffer serious harm in the reasonably foreseeable future because he is a Pashtun Turi of Shia faith from the FATA Agency. Nor does it show that the IAA misapplied the required predictive test.
[28] [2020] FCAFC 189
The applicant submits that BJO18 is distinguishable because the question before the Court in that case was whether the Authority had erred by placing too much weight on the lack of evidence of any past harm to determine the risk of future harm.
Concerning his Honour's statement quoted above, the applicant submits that it should not be understood as meaning that it would not be jurisdictional error to find that a moderate risk falls below the threshold of the real chance test. However, should the Court in this case consider itself bound to find that BJO18 is authority for the proposition that a moderate risk (as defined in the DFAT Report) is less than a real chance as understood since Chan, then the applicant formally submits that BJO18 was wrongly decided on that point.
Ground 2
Ground 2 was removed by the Further Amended Application filed on 22 January 2021.
Ground 3
Blasphemy
In its decision the Tribunal referred on three occasions to evidence in support of the applicant's claim that he feared being accused of blasphemy in Pakistan.[29] It then summarily rejected those claims at [169]:[30]
The Tribunal has also taken into account the country information provided by the representative regarding the UNHCR eligibility guidelines for assessing international protection needs of members of religious minorities in Pakistan published in January 2017 which records that Shias may be in need of refugee protection and that blasphemy allegations made against Shias increased from 2012 to 2015. However it notes there is more recent country information which it prefers.
[29] at [55] (CB 668), [113] (CB 677) and [117] (CB 678)
[30] CB 690
The applicant complains that at no point in its reasons does the Tribunal identify the "more recent country information" or explain how it contradicts the information provided by the applicant. Despite the Tribunal referring only to the UNHCR Guidelines, the applicant had provided other evidence of blasphemy laws being used against any non-Sunnis including Shias, such as:
(a)US State Department report on human rights practices in Pakistan;[31]
(b)an article in The Economist from January 2011;[32]
(c)an April 2016 article by senior research fellow in the Asian Studies Center at the Heritage Foundation;[33]
(d)another news report from April 2016;[34]
(e)a US Commission on International Religious Freedom report for 2018;[35]
(f)various media and social media sources;[36]
(g)a February 2018 article by the James Town Foundation;[37]
(h)a November 2013 article in Liberty Magazine;[38]
(i)a June 2017 report in The Independent;[39]
(j)a November 2018 AP News report;[40]
[31] CB 145
[32] CB 170
[33] CB 357
[34] CB 357-358
[35] CB 564
[36] CB 591
[37] CB 597
[38] CB 599
[39] CB 600
[40] CB 600
The Tribunal also had before it the DFAT Report which also states that an increase in blasphemy-related violence had been reported in 2017.[41]
[41] Page 34 at [3.82]
The Tribunal did not say whether its "more recent country information" contradicted these reports.
While not suggesting that the Tribunal did not have some other more recent information, the applicant submits that the Court should not be satisfied that the Tribunal had given reasonable consideration to or engaged intellectually with the applicant's claim.
Extortionists
The applicant claimed to fear harm from extortionists because he was perceived as wealthy.[42] The Tribunal made reference to this claim at [56][43] but did not make any finding in respect of the claim.
[42] CB 486, 605
[43] CB 668
The applicant submits that failure to consider a claim expressly or implicitly raised is a failure to exercise the Tribunal's jurisdiction.[44]
[44] Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
The remaining particulars to this ground were either removed by the further amended application or not pressed.
Minister’s contentions
The first ground claims the Tribunal failed to properly apply the real chance test. The applicant’s submissions appear to claim that the Tribunal either did not assess the risk of harm facing the applicant at all, or assessed it in a way that necessarily satisfied the real chance test.
The Tribunal had regard to relevant country information at [167]-[170].[45] Its interpretation of that country information was a factual matter for it.[46] The Minister submits that the fact that at [169] the Tribunal notes a DFAT report indicating a “moderate” risk for Turis does not mean that the Tribunal was bound to accept that the applicant was necessarily a refugee.[47] The Tribunal had to analyse the whole of the country information, and its conclusion at [170] was that the country information indicated that recent military operations had improved the situation in Kurram Agency and Parachinar, and while that situation was not completely settled there was no evidence that the government would reduce its security operations such that the situation would deteriorate in the foreseeable future. That conclusion cannot be said to not be open based on the country information cited at [169].
[45] CB 688-690
[46] NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]
[47] see the analysis of very similar facts in BJO18 at [125]-[130] per Murphy J, O’Callaghan and Snaden JJ agreeing at [144], [183]
The Tribunal then repeatedly relies on the improved security situation for rejecting the applicant’s claims to have a real chance of harm based on his Turi Bangash tribe and Shia religion and political and family background at [174]-[176]. The Minister submits that as reasonable minds could differ about the Tribunal’s conclusion based on the country information it cites that conclusion cannot be legally unreasonable as appears to be alleged.[48] Rather it is simply the Tribunal performing its role in an orthodox way, albeit coming to a conclusion with which the applicant disagrees.
[48] see again the conclusion on very similar facts in BJO18 at [129]-[130]
The second ground (Ground 3) claims the Tribunal failed to consider the applicant’s claimed fears of harm from being accused of blasphemy as a Shia, and from extortioners (a fear of harm relating to travel not being pressed).
The applicant’s claimed fear of being accused of blasphemy as a Shia was noted by the Tribunal at [55] and [169]. The Minister submits that on a fair reading it is subsumed within the Tribunal’s conclusion at [175] that the applicant does not face harm as a Shia.[49] The Tribunal there notes that there are about 500,000 Turi Shias, may of whom live in Parachinar and Upper Kuram, referring to the DFAT Report at page 25. That Report is presumably the more recent information the Tribunal refers to at [169], given it also deals with blasphemy allegations at pages 34-35. However here is nothing in that report to indicate that blasphemy allegations are a significant issue for Turi Shias in Parachinar and Upper Kuram.
[49] cf Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593 at [47]
The Minister submits that the claimed fear of extortioners was put as a reason the applicant could not relocate at [56], so is not relevant as the Tribunal did not rely on relocation. Otherwise it considered at [177] the applicant’s claim to fear harm due to being perceived as wealthy.
Resolution
Ground 1 – did the Tribunal err in determining the risk faced by the applicant?
This case bears some factual similarities with the case of CEO19 v Minister for Immigration & Anor.[50] In that case, as here, there was an allegation that the decision maker erred in assessing the risk of harm, although in that case the assertion was that the decision maker had overlooked relevant material.
[50] [2020] FCCA 1472
The issue there, as here, concerns the assessment in the DFAT Report at [3.26] as follows:
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-Harzara Shi’a groups.
In CEO19 I found that that aspect of the DFAT Report had been overlooked. In particular, I stated at [53]-[55]:
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”.
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.
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.
I maintain that view. The Tribunal is bound to take into account relevant DFAT country reports by force of a ministerial direction. If DFAT assesses a particular risk as moderate, and more particularly having a systematic quality, the Tribunal must engage with that assessment in order to reach a finding on the level of risk faced by an applicant.
It does not follow, however, that a simple assessment in a DFAT country report forecloses the enquiry which the Tribunal must undertake. That, in my view, was the point of the judgment of the Full Federal Court in BJO18. It always remains open to the Tribunal to make its own assessment of risk regardless of what it finds in a DFAT country report. It is the Tribunal which is the decision maker, not DFAT. In the present case, the Tribunal did engage with the relevant information, in particular at [169][51] where it stated:
The representative has asserted that Turi-Bangash Shias remain vulnerable to targeted attacks and the sectarian problem will not be resolved until the state makes a concerted effort to eliminate militancy and religious extremism. He asserted that Shias’ movements and their ability to conduct business and everyday affairs are restricted. The Tribunal is of the view the country information regarding the implementation of the red zone demonstrates that the state is making concerted efforts to eliminate militancy and extremism. The Tribunal has also taken into account the country information provided by the representative regarding the UNHCR eligibility guidelines for assessing international protection needs of members of religious minorities in Pakistan published in January 2017 which records that Shias may be in need of refugee protection and that blasphemy allegations made against Shias increased from 2012 to 2015. However it notes there is more recent country information which it prefers. On the basis of the information from the DFAT report the Tribunal accepts that as recently as 2017 there were terrorist attacks which resulted in significant deaths. However the Tribunal also notes from the PIPS report that the number of terrorist attacks in Pakistan have reduced by about 29% in 2018. There was a 19% reduction of attacks in KP. This appears to be in part due to the implementation of the red zone and tighter border control. The Tribunal also takes into account the information from the Human Rights Commission of Pakistan, State of Human Rights 2018 which reports concerns regarding killings in other areas of Pakistan. However DFAT reports there has been a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. This is reflected in country information indicating that a repatriation process has commenced and Shia and Sunni Muslims are returning to Parachinar at the encouragement of Shia leaders[52] While DFAT reports that this trend is likely to continue in 2019, attacks and violence against Turis may still occur and so DFAT assessed Turis as facing a moderate risk of sectarian violence from militant groups because of their Shia faith. This appears to be a reference to the mass casualty attacks in the first half of 2017. The Tribunal notes that there have been reports of attacks on Shias, as provided by the applicant, including most recently from PIPS, in other parts of Pakistan. It also notes the applicant provided evidence of a roadside bomb blast in Pakistan is northwestern tribal belt in January 2018 when an improvised explosive device was detonated in a mostly Shia populated area on the Afghan border. It notes that at the time of reporting no group had claimed responsibility for the bombing. However the Tribunal is not aware of any other recent reports of significant or high casualty attacks on Shias in Parachinar or Kurram Agency. The Tribunal also notes that the Shia Ashura Day ceremonies in 2017 and 2018 passed without incident across Pakistan, in part due to the strong security presence and planning to protect Shias, including the closure of borders restrictions and the suspension of mobile phone services.[53]
[51] CB 689-690
[52] Sunni tribes start returning to Parachinar 11 years after displacement, LUBP, 22 June 2018, As Fata merges with KP, Parachinar’s Shias tell Sunnis it is time to come home, SAMMA TV, 28 June 2018, Families of displaced Shia, Sunni Muslims begin return to their homes in Parachinar of Pakistan, ABNA, 24 June 2018, to-their-homes-in-parachinar-of-pakistan_898881.html
[53] Muslims mark Ashura across Pakistan”, The International News, 22 September 2018; “Ashura observed
The Tribunal went on to consider the applicant’s claims in more detail. The Tribunal’s decision is comprehensive in circumstances where the applicant’s claims had been quite elaborately constructed.[54]
[54] see CB 681 at [139]
I reject the first ground in the application.
Ground 3 – did the Tribunal fail to consider any aspects or integers of the applicant’s claim?
I prefer the submissions of the Minister in relation to this ground. It is pertinent to note that the applicant’s claim concerning the risk of blasphemy prosecution was put at a high level of abstraction. The applicant did not claim to have blasphemed. Rather, he claimed that blasphemy would be imputed to him simply because he is a Shia. The applicant therefore claimed only to face the same risk of action for blasphemy as any other Shia.
The extortion claim was even more obliquely raised. In my view, the Tribunal’s consideration of these minor aspects of the applicant’s claims was adequate and the conclusions reached by the Tribunal were open to it on the material before it.
CONCLUSION
I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 22 March 2021
peacefully amid tight security in KP”, Dawn (Pakistan), 23 September 2018; “Ashura processions culminate
peacefully in different districts”, Express Tribune (Pakistan), 3 October 2017
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