DCM18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 586

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DCM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 586

File number(s):

MLG 1684 of 2018

Judgment of:

JUDGE SYMONS

Date of judgment:

28 June 2024

Catchwords:

MIGRATION – judicial review of decision of Administrative Appeals Tribunal – Tribunal affirmed decision to refuse the applicant a protection visa – whether the Tribunal failed to comply with Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth) – whether Tribunal failed to consider a risk assessment contained in the most recent DFAT Country Information Report for Pakistan – whether Tribunal failed to consider “substantial” information in making projections about the risk of harm and reasonableness of relocation to urban centres in Pakistan – where information contained in the DFAT Report centrally important to the applicant’s claims – jurisdictional error established – writs issued

Legislation:

Migration Act 1958 (Cth), s 499

Cases cited:

 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

BSU v Minister for Immigration [2022] FCA 642

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107

CPE15 v Minister for Immigration [2017] FCA 591

CFC16 v Minister for Immigration [2023] FCA 1003

DQD16 v Minister for Immigration [2021] FCA 1586

ETA067 v The Republic of Nauru (2018) 360 ALR 228; [2018] HCA 46

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

PQSM v Minister for Home Affairs (2020) 279 FCR 175; FCAFC 125

Division:

Division 2 General Federal Law

Number of paragraphs:

87

Date of last submissions:

17 October 2023

Date of hearing:

17 October 2023

Place:

Melbourne

Counsel for the Applicant:

Dr A McBeth

Solicitor for the Applicant:

Bardo Lawyers

Counsel for the First Respondent:

Ms K Chan

Solicitor for the Respondents:

Clayton Utz

ORDERS

MLG 1684 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DCM18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	28 JUNE 2024

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision made by the second respondent on 24 May 2018.

2.A writ of mandamus issue requiring the second respondent to re-determine, according to law, the application for review before it.

3.The first respondent pay the applicant’s costs fixed in the amount of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE SYMONS:

INTRODUCTION

1. By an amended application filed on 19 September 2023, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 24 May 2018, to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (visa). The Minister opposes the application.  The Tribunal enters a submitting appearance, save as to costs, and has not participated in the proceeding.

   BACKGROUND

2. The applicant is a citizen of Pakistan who arrived in Australia on 17 January 2013 as the holder of a student visa (CB 31, 179).

3. On 20 January 2015, the applicant made the application for the visa. The application was accompanied by a statutory declaration by the applicant in which he claimed to fear harm because of his work for non-governmental organisations (NGO’s), including that (CB 128-137):

   (a)In January 2009 the applicant joined the USAID funded Federally Administered Tribal Areas-Livelihoods Development Project as an Agency Coordinator for the Agriculture and Livestock Section for his region (Khyber Agency).

   (b)The work involved interventions in the Bara area which was subject to the presence of various extremist groups who observed Sharia Law. The applicant’s role was a field-based position and on a routine field visit, two “armed youngsters” who identified themselves as members of Lashkar-e-Islam (LeI), saw the applicant taking photos and demanded he stop and hand over the camera as it was prohibited in Islam. After his promotion to an office-based position of Livestock Specialist, the applicant feared he was being followed after seeing the same people repeatedly.

   (c)In October 2010, the applicant joined the International Rescue Committee.  In 2011, he received a letter from LeI stating that he was a “spy of the infidels and working in promoting the western agenda” which was subsequently followed by a threatening telephone call.

   (d)The applicant came to Australia on a scholarship on 8 January 2013.  In November 2013 he went to see his family in Pakistan and then returned to Australia to complete his studies.

   (e)During the semester break of June 2014, the applicant made a second trip back to Pakistan to visit his family.  The applicant’s brother told him that he had received several phone calls asking of the applicants whereabouts, which were then followed by threats to the brother and various assertions including that the applicant was “working for the Jewish lobby in Australia” and “spying for the westerners”.  The calls were received by the brother a few times and he lodged a report with the Political Agent’s Office.  The applicant returned to Australia on 28 July 2014.

   (f)On 30 December 2014, the applicant’s family were travelling in his brother’s car and were shot at. The applicant postponed his return to Pakistan because of this incident.

   (g)On 16 January 2015, the applicant’s brother told him that explosive material had been planted near the family’s house and after a discussion with a political agent, the brother was told that the applicant was a target of miscreants who wanted to harm people working for NGOs and government to re-establish fear amongst people.  The political agent told the applicant’s brother that many people were looking for the applicant and that he would not be safe if he was to return.

   (h)The applicant claimed that movement to any other part of the country would be unreasonable as the applicant could be easily distinguished amongst people from other parts of the country due to his Pashtoon ethnicity.

4. The applicant’s brother provided a signed statement verifying points (d)-(f) above (CB 140-141).

5. On 7 August 2015, the applicant provided by email to the delegate, a document containing links to country reports the applicant believed were relevant to his case (CB 151-172).

6. On 11 August 2015, the applicant attended an interview with the delegate (CB 181).

7. On 16 November 2015, a delegate of the Minister refused to grant the applicant the visa (CB 179-199).  The delegate accepted that the applicant was from Sha Kass, Khyber Agency, Pakistan and had worked for several NGOs but did not accept as credible the applicant’s claims to have come to the adverse attention of the LeI or other extremist militant groups, including in connection with his employment.

8. On 4 December 2015, the applicant applied to the Tribunal for review of the delegate’s decision (CB 203-228).

9. On 6 and 13 July 2017, the applicant appeared before the Tribunal to give evidence and present arguments.  The applicant’s representative was also in attendance.

10. On 27 July 2017, the applicant’s representative provided a comprehensive post-hearing submission dated 19 July 2017 which included reference to a collection of country information, organised under different headings and identified by hyperlink (CB 584-634).  

11. On 12 December 2017, the Tribunal wrote to the applicant’s representative to bring to the applicant’s attention a recent report from the Department of Foreign Affairs and Trade (DFAT) dated 1 September 2017 (2017 DFAT Report) (CB 658-667). In its communication, the Tribunal said (relevantly):

    …

    The Member notes that this report replaces and essentially updates the previous DFAT Pakistan Country Information Report and the DFAT Thematic Report on Shi’a in Pakistan, both released on 15 January 2016, that formed the basis for discussion at your recent hearing. Nonetheless, it is important that you are aware of the most recent report, and that you have an opportunity to read the report and comment if you so wish. The Tribunal is required to take account of this DFAT country assessment in its decision, to the extent that it is relevant, pursuant to Ministerial Directive No. 56.

    The Member has extracted some parts that may be of particular interest (see Attachment A), but suggests you consider the report in its entirety.

    …

12. The Attachment A document extracted an introductory paragraph as well as the following paragraphs from the 2017 DFAT Report:

    ·Under the heading “Security situation” – paragraphs 2.30-2.33; 2.36-2.38;

    ·Under the heading “Sectarian groups” – paragraphs 2.45-2.46;

    ·Under the heading “Pashtuns” – paragraphs 3.3-3.6;

    ·Under the heading “Sectarian Violence – paragraphs 3.42-3.43;

    ·Under the heading “Sectarian Violence by province: Punjab” – paragraphs 3.51-3.53;

    ·Under the heading “Sectarian Violence by province: Kyber Pakhtunkhwa” – paragraphs 3.59-3.60;

    ·Under the heading “Sectarian Violence by province: The Federally Administered Tribal Areas (FATA)” – paragraph 3.65;

    ·Under the heading “Western influences” – paragraphs 3.139-3.140;

    ·Under the heading "Options for internal relocation” – paragraphs 5.14-5.17;

    ·Under the heading "Treatment of Returnees” – paragraphs 5.19-5.21;

    ·Under the heading "Prevalence of Fraud” – paragraphs 5.43-5.44.

13. On 20 December 2017, the applicant’s representative provided submissions that addressed the significance of the 2017 DFAT Report (CB 668-676).   

14. On 24 May 2018, the Tribunal affirmed the decision of the delegate and published a written statement of decision and reasons (Reasons) (CB 683-705).

    THE DECISION OF THE TRIBUNAL

15. The Tribunal identified the applicant’s claims as involving the central narrative that he feared harm from LeI and other militants in Pakistan, arising from his work and political/social profile (Reasons [10]). The Tribunal stated at the outset that it accepted that the applicant faced a real chance of harm should he return to his home area in the Khyber Agency (Reasons, [10]). This finding was based on the Tribunal’s acceptance that the applicant had the employment and the activities that he claimed in Pakistan and that it could not discount the possibility that this work had brought the applicant to the attention of LeI who had formed an adverse interest in him during the period 2010-2012 (Reasons, [33]). The Tribunal found that there was more than a remote chance that if the applicant was to return to his home area in Shah Kass, he would come to the adverse attention of LeI again (Reasons, [48]).

16. The Tribunal then considered whether the applicant’s real chance of persecution would extend to all areas of Pakistan. In this context, the Tribunal noted that its focus at hearing had been on Lahore and Islamabad as potential areas for relocation. The Tribunal identified both cities as “viable areas for relocation” given their considerable distance from the Khyber Agency, their size and their ethnically-diverse populations (Reasons, [49]-[50]).

17. The Tribunal, by reference to country information and the fact that the applicant had left Pakistan legally on his Pakistani passport, found that the applicant would not face a real chance of harm from Pakistan authorities upon re-entry to either Lahore or Islamabad (Reasons, [52]).

18. The Tribunal considered, by reference to country information, the security situation in Lahore and Islamabad. In short, the Tribunal found that Lahore had suffered some militant/sectarian attacks in recent years but those had largely been against high profile targets, such as police, soldiers and the Assembly and that Islamabad had suffered scant militant/sectarian attacks and violence in recent years (Reasons, [53]).

19. The Tribunal acknowledged the possibility of under-reporting of attacks and the applicant’s submission that the 2017 DFAT Report was “circumspect in its assessment of the overall security situation in Pakistan” but concluded that country information indicated that ongoing security provided by police and army had for many years discouraged militant attacks in the cities and that the most recent country information suggested that the resolve of the Pakistani government and military to combat the terrorist problem had not wavered. The Tribunal did not accept the submission that the relative stability in the urban capitals of Lahore and Islamabad was transient (Reasons, [54]-[58]).

20. The Tribunal did not accept that the militants in Khyber Agency (including LeI) would seek to harm the applicant (or his family) if he lived in Lahore or Islamabad. This finding reflected the localised nature of LeI (centred on Khyber Agency), the fact that the work and related activities undertaken by the applicant had occurred in Khyber Agency and Peshawar and several years in the past and would not have generated the adverse interest of militants in areas distant from those two locations at the time, and because the adverse attention was local in nature, the Tribunal did not accept that LeI or other militants would place significant resources into seeking and harming the applicant if he lived away from the local area (Reasons, [60]-[64]).

21. The Tribunal acknowledged that the applicant, on returning to Pakistan, might seek to work for government or NGOs in the same field that brought him to the adverse attention of militants in Khyber Agency and Peshawar. However, the Tribunal did not accept, based on the country information already cited, that engagement in work in that field in Lahore or Islamabad would lead to a real chance of the applicant being accused of blasphemy and/or harmed by militants, the Pakistan authorities or other agents (Reasons, [65]).

22. The Tribunal found, for the purposes of s 5J(3) of the Act that the applicant could, if necessary, take reasonable steps to modify his behaviour so as to avoid a real chance of persecution by seeking and getting urban-based work, either in an aid position or other type of urban employment. This finding was responsive to the applicant’s submission that he would be required to undertake dangerous field work if he did obtain work in an NGO (Reason, [66]). The Tribunal did not accept that the applicant’s future work and activities in the reasonably foreseeable future would lead him to face a real chance of harm from any militants, including LeI, Taliban, or their agents, or from the Pakistan authorities, or Pakistan community (Reasons, [67]).

23. Likewise, the Tribunal did not accept that the applicant would be targeted for harm by the LeI, Taliban, or other militants for reason of personal characteristics including his family profile, his education, his religion (Muslim Sunni) and his ethnicity as a Pashtun man from Khyber Agency (Reasons, [70]).

24. The Tribunal, having earlier found that the applicant had some psychological problems, acknowledged that the mental health sector in Pakistan was under-developed and under pressure but noted, by reference to country information, that medical and mental health treatment and appropriate medication was available in Pakistan and ostensibly would be available to the applicant. The Tribunal was not satisfied that the applicant’s future health condition would result in him experiencing either serious or significant harm (Reasons, [72]-[73]).

25. The Tribunal found that there was not a real chance of serious harm amounting to persecution to the applicant now and in the reasonably foreseeable future if he was to reside in Lahore or Islamabad for any reason (Reasons, [75]).

26. The Tribunal also found, for reasons that included its assessment that there was no general insecurity/generalised violence in Lahore or Islamabad, that it would be reasonable for the applicant to relocate to either of Lahore or Islamabad (Reasons, [76]-[81]).

27. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act (Reasons, [84]-[85]).

    APPLICATION FOR JUDICIAL REVIEW

28. On 13 June 2018, the applicant filed his application seeking judicial review of the Tribunal decision.

29. On 19 September 2023, the applicant filed an amended application that identified the following two grounds of judicial review:

    1.The Tribunal failed to consider the risk assessment contained in the 2017 DFAT Country Information Report in relation to the risk of harm facing NGO workers.

    Particulars

    a.   It was a central part of the applicant’s case for protection that he faced a risk of harm due to his past and future work for NGOs and aid projects.

    b.   The Tribunal accepted that the applicant would likely return to working for NGOs and/or aid projects if he returned to Pakistan.

    c.   The Tribunal failed to consider the risk assessment contained in the 2017 DFAT Country Information Report, which was before the Tribunal, that NGO workers faced a moderate risk of violence form militant groups and faced attacks in any part of Pakistan.

    d. The failure of the Tribunal to consider the DFAT assessment constituted a failure to comply with s 499(2A) of the Migration Act, or alternatively, constituted a constructive failure to review.

    2.The Tribunal failed to consider substantial information provided in post-hearing submissions, or alternatively, failed to consider the risk of harm and reasonableness of relocation in light of that risk into the foreseeable future.

    Particulars

    a.   The Tribunal failed to consider information provided by the applicant as to the risk of harm from militants targeting NGO and aid workers in cities throughout Pakistan, including but not limited to a specific threat to target NGOs in future attacks, in considering whether it was reasonable for the applicant to relocate to another part of Pakistan.

    b.   Further and alternatively, the Tribunal failed to consider whether militants may attack NGO or aid workers in the reasonably foreseeable future in Lahore or Islamabad, having regard to the information provided to the Tribunal regarding future risk, including but not limited to specific threats.

30. On 19 September 2023 the applicant filed written submissions addressing these new grounds, along with an affidavit of lawyer, Rayan Hazim dated 19 September 2023 that annexed copies of the articles referred to at p 49 of the applicant’s post-hearing submissions to the Tribunal dated 19 July 2017 (addressing the topic of “sectarian violence”) and a copy of the 2017 DFAT Report.  The affidavit of Mr Hazim was read without objection.

31. On 4 October 2023 the Minister filed written submissions.

    GROUND ONE

    Applicant’s submissions

32. The applicant submits that in circumstances where a central part of his case for protection was that he was at risk of harm from militants as a result of his history as an aid development worker and where the Tribunal had accepted that if returned to Pakistan, he was likely to resume working in the same aid development field for NGOs or the government, it was significant that the more recent 2017 DFAT Country Report (at [3.116]) contained the following assessment of the risk of harm to NGO workers which was not one of the matters identified for comment by the Tribunal and was not mentioned anywhere in the Reasons:

    NGO workers face a moderate risk of violence by militant groups, particularly those involved in polio vaccination programs.  While attacks on NGO workers can occur in any part of Pakistan, these attacks tend to be more prevalent in areas where the general security situation is worse, including in Khyber Pakhtunkhwa, the FATA and Balochistan.

1. The applicant submits that the Tribunal was obliged by Ministerial Direction No. 56 (in force at the time of the Tribunal decision) (Direction 56) to take into account the assessment contained in the 2017 DFAT Report where relevant to its decision and that its failure to do so, constituted a breach of s 499(2A) of the Act and jurisdictional error (referring to DQD16 v Minister for Immigration [2021] FCA 1586, [66]).

2. The applicant observes that in BSU v Minister for Immigration [2022] FCA 642, Greenwood J (at [47]) held that the assessment by the Immigration Assessment Authority of the risk of harm to the appellant, without reference to the assessment in the DFAT report that persons in the category of the appellant “still face a moderate risk of sectarian violence from militant groups”, must have meant in the context of the IAA’s assessment that the IAA had failed to take into account the DFAT assessment in forming its own conclusion on the risk of harm. His Honour held that even in the absence of Direction 56, that failure constituted jurisdictional error because of the centrality of the DFAT assessment to the task that the IAA was required to perform.

3. The applicant submits that this same error infects the present case.  In particular, the fact that the Tribunal had the 2017 DFAT Report before it and referred to other aspects of it in the Reasons does not establish that it took into account the specific DFAT assessment that NGO workers throughout Pakistan faced a moderate risk of violence.  The applicant submits that the reference to other parts of the 2017 DFAT Report compels the opposite conclusion.

   Minister’s submissions

4. The Minister submits that analysis of the applicant’s ground one must occur with an appreciation of the following principles:

5. First, it was not necessary for the Tribunal to refer to every piece of evidence in its written reasons with the consequence that because a particular piece of information was not referred to in a particular part of the Tribunal’s reasons this did not necessarily mean that the evidence was not considered by the Tribunal (referring to ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [13]). For example, the Tribunal may have considered the matter but found it not to be material.

6. Second, the onus of establishing a basis to draw an inference that the Tribunal overlooked the material is not lightly discharged (referring to Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [48]) and is not readily to be drawn where the reasons are otherwise comprehensive and the issue has been identified at some point (referring to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]). The Minister submits that the applicant has failed to discharge this onus.

7. Third, the degree of weight to be attributed to any particular piece of country information is a matter for the Tribunal (referring to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 10 at [11]).

8. The Minister submits that there is no basis in this case for the inference that the applicant invites the Court to draw, for the following reasons:

9. First, the Tribunal expressly adverted to Direction 56 when, at Reasons [9] it referred to what was described as a summary of the relevant law set out in Attachment A.  The Attachment A document contained statements including, under the heading “Mandatory considerations”:  In accordance with Ministerial Direction No. 56, made under s 499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration…and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. This was said to constitute clear evidence that the Tribunal did, in fact, comply with the Direction, and s 499(2A) of the Act.

10. Second, the whole of the 2017 DFAT Report was specifically referred to by the Tribunal at Reasons, [13] (fn 1) and at Reasons, [22].   Further, the Tribunal put the entirety of the 2017 DFAT Report to the applicant for comment in its correspondence sent to him on 12 December 2017 (reproduced in part in paragraph [11] above).

11. Third, the Minister submits that the applicant’s claim that he would be at risk of harm from militants throughout Pakistan because of his NGO and aid work, placed specific emphasis on the “current investigation into blasphemy by NGO/aid workers” (referring to CB 601-605 which formed part of the applicant’s post-hearing submission dated 19 July 2017). The Minister submits that the Tribunal considered but ultimately rejected the claim that “work in that field in Lahore or Islamabad will lead to a real chance of [the applicant] being accused of blasphemy and/or harmed by militants, the Pakistan authorities or any other agents (Reasons, [65]).

12. The Minister submits that the Tribunal’s reasoning is explicable otherwise than on the basis that it did not consider the 2017 DFAT Report in its entirety.  The Tribunal simply did not regard the passage now highlighted by the applicant as material, as it was entitled to, having regard to the nature of the obligation imposed by Direction No. 56, being to take account of DFAT country information to the extent relevant (Minister’s emphasis).  The Minister submits that as a matter of fact finding, the Tribunal did not consider the “moderate risk” to NGOs as something likely to lead to a qualitative deterioration in the security situation and a correlative rise in the risk of harm to the applicant, having regard to its dispositive findings and the country information on which the Tribunal did place weight.

13. At hearing, counsel for the Minister identified paragraphs [14], [15], [31] and [48] of the Reasons as providing evidence that the Tribunal had understood and considered the applicant’s claim regarding his NGO work which in turn provided further support to the proposition that the Tribunal had regard to the whole of the 2017 DFAT Report but found that the now emphasised passage was immaterial to its findings.

14. The Minister submits that any asserted error was not material because here, the Tribunal had regard to country information submitted by the applicant which gave a much more severe assessment of the risk to humanitarian and NGO workers, outside the Khyber Pakhtunkhwa province, then DFAT’s assessment of “a moderate risk of violence”. The Tribunal also considered submissions and material directly and specifically relevant to the applicant’s risk profile. The Tribunal nevertheless rejected the claim and was persuaded by competing country information, not limited to that in the 2017 DFAT Report, showing “the very great and ongoing security provided by police/army throughout the city” (Reasons, [57], [58]).

15. The Minister submits that it could not be said that had the asserted breach not occurred and the Tribunal had considered the “limited” information contained in paragraph [3.116] of the 2017 DFAT Report, there was a realistic possibility of a different outcome (referring to PQSM v Minister for Home Affairs (2020) 279 FCR 175 at [150]-[153]).

    GROUND ONE: RESOLUTION

16. There was no dispute that by reason of the terms of s 499(2A) of the Act, and Direction 56, the 2017 DFAT Report was a mandatory relevant consideration for the Tribunal in the conduct of its review. It was also not in dispute that while the Tribunal decision contained references to some passages of country information taken from the 2017 DFAT Report, it did not refer to the paragraph now emphasised by the applicant, being paragraph [3.116].

17. The resolution of this ground, having regard to the way in which the parties framed their respective arguments, requires the Court to form a view as to the significance of the omitted paragraph [3.116] and to determine, having regard to this assessment, what inferences can reasonably be drawn from the Tribunal’s failure to make explicit reference to it in the Reasons.

18. The Minister does not go so far as to contend that paragraph [3.116] was irrelevant to the claims advanced by the applicant but he does submit that an inference can be drawn that the Tribunal’s failure to reference it in the Reasons can be explained by a view taken that it was not material to the review, having regard to other information that was before the Tribunal and the Tribunal’s path of reasoning.  The applicant, on the other hand, contends that this inference is not available owing to the close relationship between the subject matter of paragraph [3.116] and the claims advanced by the applicant.

19. I am ultimately of the view that the information conveyed by paragraph [3.116] of the 2017 DFAT Report was of central importance to the exercise of the Tribunal’s function such that the more probable inference is that the information was overlooked by the Tribunal.

20. As the Tribunal itself acknowledged, the applicant’s narrative was centred on his fear of harm from LeI and other militant and Sunni extremist agents in Pakistan, arising from his work and political social/ profile (Reasons, [32]). While part of his claim had a historic element, there was a prospective claim based on the Tribunal’s acceptance that the applicant would continue to work in the NGO sector. Although it is true that the applicant emphasised the intersection of this work with the prospect that he would be suspected of blasphemy, his claim to apprehend harm was put on the more expansive basis that he would be targeted on account of his imputed/actual political opinion and status as a past and future NGO worker (CB 605).

21. The content of paragraph [3.116] – which appeared in a section of the 2017 DFAT Report headed “GROUPS OF INTEREST – Human Rights Organisations” – contained credible and significant information that was capable of being seen as corroborating what the applicant was saying about the risk posed to him as a person performing work in the NGO sector, including in circumstances where he had submitted that the ideologies (and risk profile) of workers in this field should be assimilated to the ideologies (and risk profile) of human rights workers and activists more generally (see CB 612).

22. While I accept that there is some symmetry between the Tribunal’s finding of a more exaggerated risk of harm to NGO/aid workers in the areas of Balochistan, FATA and Karachi (Reasons, [65]) and the information contained in paragraph [3.116] of the 2017 DFAT Report, the former finding was derived from the Tribunal’s appraisal of “the reports of attacks against NGO/aid workers provided [by the applicant] in submissions” whereas the latter involved a statement, of general application, that ascribed to NGO workers, without qualification, a moderate risk of violence by militant groups and contained an acknowledgement that attacks on NGO workers can occur in any part of Pakistan.

23. The relevance of the missing paragraph to the question of the applicant’s risk profile as an NGO worker (in all geographic areas of Pakistan) was so obvious that the better inference is that its omission can be explained only by the failure of the Tribunal to take it into account.  This inference is available despite the Tribunal’s acknowledgement (by incorporation of the Annexure A document) that it had obligations under Direction 56 and its references to other aspects of the 2017 DFAT Report.  The Tribunal’s focus, including through the communication sent to the applicant on 12 December 2017 alerting him to the new DFAT publication, was on different topics covered by the 2017 DFAT Report.

24. The same characteristics of the missing paragraph [3.116] that have informed my finding that it was not considered by the Tribunal also shape my conclusion that its failure to do so, in the circumstances of this case, was material.  Applying the “undemanding” standard of “reasonable conjecture”[1], I am satisfied that there is a realistic possibility that had the Tribunal brought paragraph [3.116] to account in its consideration of the applicant’s central claim to apprehend relevant harm as an NGO worker, that it might have reached a different conclusion about the outcome of this claim and the disposition of the review application.

    [1] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32]-[33].

25. Ground one succeeds.

    GROUND TWO

    Applicant’s submissions

26. The applicant submits that when it came time for the Tribunal to make an assessment of the reasonableness of his relocation to other parts of Pakistan it was required to assess whether the putative place of relocation was free from a real risk of significant harm and also whether it was reasonable for the applicant to relocate to that place, even if the conditions there did not rise to the level of a real risk of significant harm.

27. In the context of the applicant’s case, this required the Tribunal to make a projection about circumstances into the reasonably foreseeable future and to do so informed by the information and submissions put to it, including information that concerned the threat of future violence directed at NGO workers.

28. The applicant submits that the Tribunal had before it the following material comprehended by this description.

29. First, in the post-hearing submissions provided to the Tribunal on 27 July 2017, the applicant submitted that he was at risk of harm in other major urban centres on account of his work as an NGO/aid worker (CB 588).  In support of that submission, the applicant specifically relied on a collection of media reports, for which internet links were provided (CB 633).

30. Second, the post-hearing submissions also contained extracts from a number of other sources reporting that NGO workers faced security threats and “numerous attacks by extremist groups who accused them of promoting a Western agenda” (CB 605-606, extracting the 2016 US State Department Report on Pakistan; CB 607, extracting the November 2015 UK Home Office Country of Origin Report on Pakistan).

31. Third, the post-hearing submissions also included extracts of a submission to the UN Human Rights Council’s Universal Period Review regarding Pakistan, which highlighted numerous attacks on aid workers and human rights defenders (CB 609-612).

32. Fourth, the media reports relied on by the applicant included the following report identified, by hyperlink, as item 1 in the articles referred to at CB 633[2]

    Attacks on government officials and buildings were claimed by the Jamaat-ul-Ahrar group, a breakaway faction of the Pakistani Taliban, which announced its ‘Operation Ghazi’, named after Abdul Rashid Ghazi who was killed in the 2007 Lal Masjid faceoff.  In a video released on February 13 [2017], the outlawed terror group said they would deliberately target legislative bodies, Pakistan army, NGOs, women rights groups and liberal activists, among others (applicant’s emphasis).

    [2] Zehra Kamzi, “In 10 days, Pakistan has seen 7 terror attacks, death toll at 126”, Hindustan Times, 23 February 2017” reproduced as part of Annexure “RH-1” to the affidavit of Rayan Hazim.

33. The applicant submits that the militant promise to target NGOs in the future was information about a specific threat for further attacks in the future, targeting a group of which the applicant was a member, made in the wake of violent attacks throughout Pakistan, including two in Lahore.

34. The applicant submits that taken together, the submissions, the extracts and the media reports relied on by him indicated that people working for NGOs or in the aid sector were targeted by militants throughout Pakistan, including in major urban centres, and that there had been a specific threat to continue to target NGO workers.  The risk of harm extended beyond the single militant group, LeI, which the Tribunal had accepted had attacked and threatened the applicant and his family and which was the focus of the Tribunal’s decision.

35. The applicant submits that the failure of the Tribunal to have regard to the information about the militant threat to NGO and aid workers, particularly (but not exclusively) the promise of future attacks, constituted a failure to have regard to substantial evidence that went to a critical issue in the review (referring to CFC16 v Minister for Immigration [2023] FCA 1003 at [74]-[78]). Further and alternatively, the failure of the Tribunal to refer to the specific threat of future attacks constituted a failure to look beyond the events of the immediate past and into the reasonably foreseeable future.

36. The applicant submits that in order to perform this task, it was necessary for the Tribunal to accept or reject the likelihood that the threat of future attacks targeted at NGOs would be carried out, to form the factual foundation for its prediction about future events (referring to CPE15 v Minister for Immigration [2017] FCA 591 at [60]). The failure of the Tribunal to do so constituted a failure to complete the review according to law.

    Minister’s submissions

37. The Minister submits that the applicant has failed to discharge the onus of establishing a basis to draw an inference that the relevant information – being principally the information contained in the media article referred to at [64] – was not considered.

38. The Minister submits that the “promise to target NGOs” reported in the media article was not information of an equivalent kind to that considered in CFC16 because in that case, it was open to the Court to infer that the Tribunal had failed to deal with certain material because:

    (a)The material expressly raised a claim as to “another and different reason why Sunni extremist groups might again perpetrate attacks in Kurram Agency” ([75]) – namely, to attack Pakistani Shias unless they ceased fighting in Syria – which was different and more recent than the cause that the Tribunal recognised as the basis of the conflict between Sunni extremist groups and Shias ([60]).

    (b)The claim was substantial and clearly articulated in numerous places in the applicant’s, evidence, submissions, and news reports (described in CFC16 at [50]).

39. The Minister submits that the media article now relied upon by the applicant did not raise any new or different claim to those already made by the applicant about the threat of “targeted attacks” on those who worked in the NGO and aid sector and which was a claim clearly advanced on the basis of a continuing and ongoing threat that would affect him now and into the reasonably foreseeable future and which, according to the Minister, the Tribunal dealt with.

40. The Minister also challenges the characterisation of the information about the militant threat as “substantial” in circumstances where it was provided to the Tribunal as one of nine hyperlinks, in the final page of a 50-page submission in which country information from other sources was comprehensively extracted and reproduced.  In these circumstances, the absence of reference to the media articles in the Tribunal’s Reasons is explained by the relative prominence (or lack of prominence) which the applicant himself attributed to it.

41. The Minister submits that the absence of reference to the media article likely reflects a view taken by the Tribunal that the limited information it conveyed was not material, in light of country information on which the Tribunal placed weight and the applicant’s own claims as advanced.  In this regard, the Minster notes that the 2017 DFAT Report, Crisis Watch and SATP (South Asia Terrorism Portal) reports on which the Tribunal relied (Reasons, [53]-[54]) were more recent than the media article now cited by the applicant.

42. The Minster further observes that in responding to the invitation to comment on more recent sources of information, the applicant did not merely rely on the “promise” of a militant attack but referred to and reiterated his post-hearing submissions that militant groups, including but not limited to LeI, carry out targeted killings and other forms of violence against NGO workers.

1. The Minister submits that the Tribunal had regard to the post-hearing submissions as to actual and not merely threatened attacks and was otherwise well aware of competing reports as to the scope and frequency of attacks in Pakistan (Reasons, [54]-[56]). For this reason, any failure to consider the relevant information (if established) was not material. Assessed objectively, on the basis of all the evidence and inferences available, it could not be said that had the Tribunal considered the information about the militant threat, this would give rise to a realistic possibility of the Tribunal reaching a different conclusion.

   GROUND TWO: RESOLUTION

2. The applicant argues by analogy that the Tribunal made an error similar in character to that identified by Murphy J in CFC16.

3. In CFC16, the appellant argued that because the Tribunal’s reasons were silent in relation to his clear submission that militant group, LeJ, had threatened further attacks on Shias in Kurram Agency (and the news reports that supported this submission) it could be inferred that the Tribunal had failed to consider it.  The appellant argued that given its prominence and distinct character, the failure of the Tribunal to consider the submission involved jurisdictional error.

4. In CFC16, the Tribunal had accepted that there was a risk of sectarian violence in the future from one or other Sunni extremist groups but found that this risk was no more than remote.  Its reasons did not demonstrate a consciousness or consideration of the submission and material about the specific threat of future violence communicated by LeJ.

5. Murphy J found that in the circumstances of this case the failure of the Tribunal to expressly deal with the claim involved jurisdictional error.

6. However, it is apparent that much turned in CFC16 on the fact that the submission concerning the threat of further attacks had been raised squarely before the Tribunal ([50](b)]) rather then, as in this case, relying on the Tribunal to locate the articles identified by hyperlink and to then, extrapolate from them the information that was said to be significant to the applicant’s case.

7. It was also apparently significant in CFC16 (a matter highlighted by the Minister) that the threat communicated by LeJ introduced a new motive to attack Shias ([75]) and that the threat had been communicated only one month before the Tribunal’s engagement with the applicant’s case and one month after potentially related sectarian violence had occurred. The threat was therefore very recent, and its significance was yet to be fully understood. The Tribunal in these circumstances was at least obliged to weigh the submission and supporting evidence, even if to ultimately reject it ([76]-[77]).

8. Here instead, while the applicant made submissions to the Tribunal to the effect that he would be at risk of harm in other major urban centres on account of his work as an NGO and/or aid worker, and provided examples of attacks on members of this cohort to make good this point, the specific example now emphasised by the applicant was not a feature of this submission and did not warrant the label of “significant”. 

9. Beyond the fact that it was obscured in a series of hyper-links, identified under the heading “Sectarian violence” and cited as a further “instance of sectarian violence in Islamabad, Lahore and Karachi”, (CB 633) the significance of the article was not further illuminated or distinguished.  Further, the article referred to a threat that was made no later than February 2017, some seven months before the publication of the 2017 DFAT Report upon which the Tribunal relied and some fifteen months before the Tribunal made its decision.  The article lacked the immediacy of the information that was before the Tribunal in CFC16.

10. Furthermore, I am satisfied that the Tribunal had a consciousness of the prospective element of the applicant’s claim and the submission that members of the NGO community remained vulnerable to attack in all parts of Pakistan. The Tribunal accepted that instances of sectarian violence had occurred in urban locations but found, by reference to country information that post-dated the media article relied upon, that counter-terrorism measures adopted by the Pakistan Army were proving effective at discouraging militant attacks. The Tribunal noted that commentary, including the September 2017 DFAT Report did not alter this analysis (Reasons, [57]). Furthermore, the Tribunal projected that the measures applied by the Pakistan government and Army would prove effective into the reasonably foreseeable future (Reasons, [58])

11. I am not persuaded that the Tribunal erred in the manner alleged by ground two.

    CONCLUSION

12. I have found that ground one is established.  It follows that writs of certiorari and mandamus will issue to quash the Tribunal decision and require the Tribunal to reconduct the review of the delegate’s decision according to law.

13. There is no reason why costs should not follow this event.  There will be an order that the Minister pay the applicant’s costs.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated:       28 June 2024