DXB19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 493
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXB19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 493
File number(s): ADG 361 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 10 April 2025 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Pakistan – Turi Pashtun of Shia religion – whether finding of fact not supported by the evidence in relation to allegedly fraudulent document or based on unwarranted assumptions – whether decision illogical or legally unreasonable by reason of unwarranted assumptions made concerning protection of students by school or because of failure to take into account relevant considerations – whether wrong question asked as to whether individually targeted rather than being targeted as part of a particular social group – whether failure to take into account a relevant consideration as to the nature of persecution faced by the applicant outside his home area – whether decision affected by bias – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5J, 36, 46A, 473CA, 473DA, 473DA, 476 Cases cited: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 78 ALJR 854; (2004) 206 ALR 242; (2004) 77 ALD 541
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137
BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494
BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573
BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BSE17 v Minister for Home Affairs [2018] FCA 1926
BVB15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 413
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2018) 161 ALD 441
CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404
CXS18 v Minister for Home Affairs [2020] FCAFC 18
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
FCS17 v Minister for Home Affairs [2020] FCAFC 68; (2020) 276 FCR 644
FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456
FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; (2011) 282 ALR 685
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
R v Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No 1) [2000] 1 AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456.
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128; (2001) 75 ALJR 848; (2001) 179 ALR 296; (2001) 65 ALD 321
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs and Multicultural and Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2007] 77 ALD 23
WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 1 May 2024 Date of hearing: 29 April 2024 Place: Perth Counsel for the Applicant: Mr G Mohammed Solicitor for the Applicant: Legal Concerns Lawyers Counsel for the First Respondent: Mr T Goodwin Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 361 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXB19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The Originating Application filed 9 October 2019, as amended by an Amended Originating Application filed 16 April 2024, be dismissed.
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 LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review (“Amended Judicial Review Application”) filed by the applicant, DXB19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on 16 April 2024. The Amended Judicial Review Application seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) handed down on 30 September 2019. The Authority Decision affirmed a decision of a delegate (“Delegate's Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) of 16 August 2019 not to grant DXB19 a Subclass 790 Safe Haven Enterprise visa (“SHE Visa”).
The Court Book (“CB”) filed by the Minister on 31 January 2020 was marked as Exhibit 1. On 24 May 2023 the Minister filed a Supplementary Court Book (“SCB”) which was marked as Exhibit 2 at hearing. Following the final hearing on 29 April 2024, and by consent, on 1 May 2024, a document titled “DFAT Country Information Report Pakistan” dated 20 February 2019 (2019 DFAT Report”) was admitted into evidence.
All references to the statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the Migration Act and to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
The background to this matter prior to the Authority Decision is as follows:
(a)DXB19 is a citizen of Pakistan who first arrived in Australia on 28 September 2012 as an unauthorised maritime arrival: CB 40 and 42;
(b)on 28 November 2012 DXB19 attended an Irregular Maritime Arrival Entry Interview: CB 11-28;
(c)on 1 November 2013 DXB19 applied for a Protection Visa, but the application was found to be invalid: CB 29-98 and 100;
(d)on 9 October 2015 DXB19 was advised that the Minister had lifted the bar pursuant to s 46A(2) and invited DXB19 to apply for a Temporary Protection visa or SHE Visa: CB 100-106;
(e)on 24 July 2016 DXB19 applied for a SHE Visa: CB 107-172;
(f)on 20 March 2019 DXB19 attended an interview with the Delegate (“Delegate Interview”): CB 183;
(g)on 3 April 2019 DXB19 provided post-Delegate Interview submissions to the Delegate via his representative: CB 213-232;
(h)on 16 August 2019 the Delegate refused to grant the SHE Visa: CB 238-257. The Delegate was not satisfied that DXB19 was a person in respect of whom Australia had protection obligations or a member of the same family unit as such a person;
(i)on 22 August 2019 DXB19’s matter was referred to the Authority pursuant to s 473CA: CB 259; and
(j)on 10 September 2019 DXB19 provided written submissions to the Authority via his representative (“DXB19’s Authority Submissions”): Supplementary Court Book (“SCB”) at 317-324.
DXB19’s protection claims in the invalid Protection Visa application included the following (as set out at CB 63-65):
(a)DXB19 claimed to fear harm from the Taliban because of his Shia religion, and as a Turi Pashtun from Parachinar in Kurram District; and
(b)DXB19 claimed difficulties with the Taliban started in 2007. In 2009 he moved to Peshawar to continue his education. While in Peshawar he was threatened in a phone call from an unknown caller and received a threatening letter from the Taliban. He was also followed by three men after purchasing books at the bazaar. Shortly thereafter he returned to his home village and opened up a clothing shop at the Parachinar bazaar. Some 18 months later, his shop was destroyed by a bomb explosion and in June 2012 he left Pakistan.
DXB19’s protection claims included in the SHE Visa Application included the following (as set out at CB 150- 151):
(a)DXB19 continued to fear harm for the reasons previously set out in the invalid Protection Visa application;
(b)DXB19 claimed to fear harm from the Taliban, Sunni extremists and other militant groups in Pakistan;
(c)DXB19 claimed to fear harm on the basis of his Shia religion, his father’s position as a Malik, his family’s status within his religious and tribal community, due to his imputed political opinion against extremist groups and his commitment to further education; and
(d)DXB19 claimed that his father was killed in March 2016 by the Taliban or other extremist groups because he held the title of Malik and that DXB19 would inherit the title of Malik from his father and would be targeted for that reason.
During the Delegate Interview DXB19 made an additional claim to fear harm from the Taliban because he had spent time in a Western country.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)was satisfied that the DXB19’s Authority Submissions did not contain new information and had regard to it: CB 294 at [4]. In DXB19’s Authority Submissions, DXB19 requested an interview with the Authority. Although the Authority acknowledged it had discretion to obtain new information from DXB19, it was satisfied that DXB19 had been given ample opportunity to present his claims and did not consider that an interview was warranted: CB 294 at [5];
(b)accepted:
(i)DXB19’s ethnicity and much of his background: CB 296-297 at [10]-[12]; and
(ii)that DXB19’s father held the title and role of Malik and that he passed away in 2016: CB 298 at [18];
(c)did not accept that:
(i)DXB19’s father died “due to any targeted killing”: CB 297-299 at [15]-[18]; and
(ii)DXB19 was of adverse interest to Taliban, any other militant group, had an individual profile with such groups or anyone else, or would suffer any harm due to his commitment to further education: CB 299-301 at [18]-[27];
(d)having regard to the evidence before it and relevant country information the Authority was not satisfied that DXB19 or his family were known to or targeted by the Taliban during his father’s extensive period of being a Malik or after his death or that there was a real chance they would be, even if DXB19 was to assume the role of Malik: CB 302 at [29];
(e)considered:
(i)whether DXB19 would face harm as a Pashtun and a Turi and because of his Shia Muslim faith upon return to Parachinar, and taking relevant country information into account, concluded that the material pointed against DXB19 facing a real chance of any harm in the reasonably foreseeable future for reason of his being a Turi: CB 304 at [35]; and
(ii)relevant DFAT reports and noted that the information did not support any “recent trend of discrimination or other issues faced by Pashtuns or Shia Turi Pashtuns in [DXB19’s] area”: CB 305 at [38];
(f)further noted that Shias comprised about 40 per cent of the Kurram District population and there was no credible evidence that DXB19 or his family members faced or would face any harm there because of their faith: CB 305-306 at [39];
(g)was not satisfied that DXB19 would face harm in Pakistan for any of the reasons claimed, nor would he face harm as a returnee from the west: CB 306 at [40]-[41]; and
(h)concluded that DXB19 did not face a real chance of persecution in Pakistan and did not satisfy s 36(2)(a) for the grant of the SHE Visa: CB 306 at [42], and that for the same reasons, found that DXB19 did not satisfy the alternative criteria at s 36(2)(aa): CB 307 at [45]-[46].
AMENDED JUDICIAL REVIEW APPLICATION
Grounds
There are seven grounds in the Amended Judicial Review Application, which are set out at [74] (ground 1), [13] (ground 2), [14] (ground 3), [31] (ground 4), [31] (ground 5), [55] (ground 6) and [67] (ground 7) below.
It is necessary to say something about the grounds of the Amended Judicial Review Application. They are a mix of properly drafted grounds, and particulars which are prolix and otiose. In terms of length the grounds run to almost 11 typed pages, only slightly shorter than the 14 page Authority Decision. In terms of what is otiose the first two particulars of ground 1, which alleges that the Authority Decision “is not free of bias, or apprehended bias”, make the point. What is the purpose of the Latin brocard comprising particular 1.1 “Nemo iudex [usually judex] in causa sua”? There is no allegation that the Authority was determining its own cause, or that the Authority had a personal interest or involvement in some aspect of the matter, unlike, for example, Lord Hoffman in the extradition proceedings involving Chile’s General Pinochet: R v Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet Ugarte (No 1) [2000] 1 AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456. And what is the purpose of particular 1.2 comprising a sentence specifically naming the Authority? The Authority member’s name is immaterial to anything in the more than ten and one half grounds of review which follow. Other particulars comprise, unnecessarily, submissions and extensive quotes from the Authority Decision.
The parties dealt with grounds 2 to 7 before dealing with ground 1, and dealt with some grounds together, and the Court will deal with the grounds in the same manner. DXB19 submitted that if he succeeded on any of grounds 2 to 7 the Court did not need to consider ground 1.
Grounds 2 and 3
The parties dealt with grounds 2 and 3 together.
Ground 2 is as follows:
2.The second respondent makes a finding a fact which was not supported by the evidence before them, namely, that the FIR produced by the applicant was fraudulent.
Particulars
2.1The reviewer concludes that “I am not persuaded that the FIR is a genuine document or contains truthful information.” [Court Book - p.298 - Decision of the reviewer dated 30 September 2019, para 18].
2.2In reaching that view, one of the considerations of the reviewer is that “over three years since the alleged event and consider even less plausible that within such an extended period, no further documents were obtained or able to be.” [Court Book - p.298 - Decision of the reviewer dated 30 September 2019, para 16]
2.3The reviewer relies on “general” conclusions about the availability of such documents in Pakistan fraudulently, stating that “reports exist of police accepting bribes to verify fraudulent FIRs.” [Court Book - p.298 - Decision of the reviewer dated 30 September 2019, para 15].
2.4The applicant made the claim relating to his father being assassinated in Peshawar in 2016.
2.5The applicant then, in 2019, provided a FIR and an English translation thereof, to support that claim.
2.6In addition, the applicant provided the CNIC identification of both his father and grandfather evidencing their respective titles as Maliks.
2.7The applicant further provided an explanation as to his difficulty and failure in obtaining other documents as evidence of his father’s assassination.
2.8Notwithstanding the general views the reviewer held of production and access to such documents in Pakistan, the reviewer, however, with no evidence to concluded that the specific FIR produced by the applicant is not a genuine document.
Ground 3 is as follows:
3.In the alternative to Ground-2, the second respondent makes a finding a fact which based on unwarranted assumptions, namely, that fraudulent FIR’s are easily available in Pakistan, and therefore the FIR produced by the applicant was fraudulent, and that the unwarranted assumption resulted in a decision where the decision was illogical and/or outside jurisdiction.
Particulars
3.1The factual basis in Ground-2 as stated in paragraph 2 is relied upon for Ground-3.
3.2It is pleaded, in the alternative to Ground-2, that in making the unwarranted assumptions about the authenticity of the FIR relating to applicant’s father’s death in Peshawar, the reviewer reaches an illogical conclusion that the applicant's father did not die because of a targeted killing by the Taliban.
DXB19’s submissions on grounds 2 and 3
In relation to ground 2 DXB19 submitted as follows:
(a)Ground 2 is pleaded as a traditional “no evidence” ground, where the Authority has no evidence before them to conclude that the First Information Report (“FIR”) as produced by DXB19 was not genuine;
(b)the test for “no evidence” ground is stated in BSE17 v Minister for Home Affairs [2018] FCA 1926 (“BSE17”) at [33] per Moshinsky J; MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 (“MZZUG”) at [59] per Murphy J. Jurisdictional error cannot be established where there is a “skerrick” of evidence to support a finding;
(c)there was evidence reasonably available to the Authority that the certain types of documents can be fraudulently procured in Pakistan;
(d)DXB19 further submits that there was no evidence before the Authority that FIR produced by DXB19 was not genuine;
(e)in addition, the Authority fails to accord appropriate weight to DXB19’s oral evidence at his SHE Visa interview detailing his father’s status as a Malik, role as a Malik, his assassination and his explanation for not being able to obtain further documents to support that claim; and
(f)the evidence of the father’s assassination was not the FIR. The evidence was DXB19’s oral evidence at the interview, which he then attempted to corroborate with any other evidence that he could produce.
In relation to ground 3 DXB19 submitted, in the alternative to ground 3, as follows:
(a)the Authority makes unwarranted assumptions about the authenticity of the FIR and insufficient weight to all the other information before him in support of the claim made by DXB19 that his father was assassinated for being a Malik;
(b)BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2018) 161 ALD 441 at [36] per Perrram, Perry and O’Callaghan JJ established that “[u]nwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence”;
(c)in BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [56] per Yates, Wheelahan and O’Bryan JJ the Full Court of the Federal Court explained that:
A finding that an alleged event is implausible is ordinarily a finding that it is inherently unlikely to have occurred; adopting the language of the High Court in … [Republic of Nauru v WET040 (No 2) [2018] HCA 60; (2018) 93 ALJR 102; (2018) 362 ALR 235], the event does not accord with the probabilities of ordinary human experience. It is not necessarily a finding that that event is beyond human experience of possible occurrences in the sense that it could not have occurred: that formulation tends to overstate what is ordinarily meant by “implausible”
(d)any risk that DXB19 alleged, and that objectively exists for him, is intricately linked to his father’s status as a Malik. If accepted that his father was assassinated because of status as a Malik, as a member of his family, the risk to DXB19 significantly changes;
(e)in EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518 at [81] per Stewart J, the Federal Court stated that:
... Without making any findings in relation to, for example, the security oversight of persons such as the appellant being transported to court, whether it was the bribed shift [soldier] or instead a group of officers that were responsible for the appellant’s transfer to court, or the effectiveness of bribery in Iran, it is unclear how the impugned implausibility finding could be made by the Authority other than by mere speculation and conjecture.
(f)it is the same speculation and conjecture that DXB19 claims that exists in the findings as made by the Authority in this matter;
(g)DXB19 accepts that there is no “freestanding ground of unwarranted assumptions”: BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 (“BOH17”) at [7] per Perram J. In BOH17 at [8] per Perram J the Federal Court observed that:
Thus, a party relying upon an unwarranted assumption to establish jurisdictional error will need to establish that the assumption is not one which a reasonable decision maker could make. Another way of asking this question is to ask whether the decision has an evident and intelligible basis...
(h)DXB19 submits that the finding made by the Authority that DXB19’s father was not assassinated because of his status as a Malik is not based on any evidence or intelligible basis; and
(i)it is a finding based on, at least in part, an unwarranted assumption that the FIR as provided by DXB19 is not a genuine document.
Minister’s submissions on grounds 2 and 3
In relation to grounds 2 and 3 the Minister submitted that:
(a)the FIR (which appears at SCB 312-314) was essentially a Police Report that was made by DXB19’s mother. Relevantly, it alleges that DXB19’s father was killed by gunshot and that, while the mother did not see the incident, she blamed “unidentified terrorists” and believed he had been assassinated because of his status as a Malik;
(b)the Authority was “not persuaded to accept that the FIR is a genuine document or contains truthful information”: CB 298 at [18]: these findings were open to the Authority;
(c)with respect to the finding that the FIR was not a genuine document, the Authority had concerns about:
(i)country information which suggested that FIRs are simple to counterfeit: CB 297 at [15]; and
(ii)the FIR had some “anomalies”: CB 298 at [16], including a misdescription of the province where Peshawar is located, and inconsistent references to the location of the alleged incident: CB 297 at [15];
(d)with respect to the failure to accept that the FIR proved DXB19’s father was shot and killed by terrorists, the Authority:
(i)noted that DFAT did not consider FIRs to be evidence of the truth of events described in them: CB 297-298 at [15]; and
(ii)was concerned that DXB19 had not provided a sound explanation for why he had not been able to provide other corroborating evidence of his father’s death, including a death certificate showing the cause of death, or media reports of allegedly a very public assassination of a Malik, that is, a village leader: CB 297-298 at [15]-[16]; and
(e)on the above bases it was reasonable for the Authority to find that the FIR was not a genuine document and that the account described therein of DXB19’s father’s death was not truthful. It is not the case that there was “no evidence” on which the Authority could base these findings, and there was no “unwarranted assumption”.
Consideration of grounds 2 and 3
The FIR, in its English translation, appears at SCB 312-313 and is in the following terms:
To the SHO of Sharki Police Station, Peshawar
I was present in the emergency room at LRH Peshawar when the corpse of Malik Mir Afzal son of Malik Mohammad Afzal of Amalkot Parachinar Kurram Agency, who had been killed by firearm, was brought. Present with the deceased was the lady Shah Sultan, the wife of the deceased, who files the report.
We are natives of Amalkot village in Parachinar. Owing to my illness, we came to Peshawar to to see the doctor for check-up at the Khyber Medical Centre near Dabgari Garden. After seeing the doctor, upon his suggestion, my husband told me to wait at the hospital and he left the hospital to get medication prescribed for the treatment A short while later, gunfire took place. Upon hearing the sound, I ran outside and found my husband covered in blood and wounded. He died on the spot. Because my husband was a Shia leader and a tribal elder, he had previously been threatened by the terrorists on many occasions. Therefore, l am certain that my husband has been target-killed by terrorists. I blame the unidentified terrorists for my husband’s death.
Police Proceedings: Upon receipt of the report from the applicant, it is entered word by word as stated by the applicant. 1t was read and understood. Once confirmed, signature and thumbprint was recorded, which I certify. The paperwork of the deceased is handed over to the doctor for the post-mortem. Upon the completion of the report and the nature of the crime, the report is dispatched to the police station in the hands of Constable Mohammad Rahim 336. Thereafter it submitted to the staff for FIR investigation. English signature of Subhanullah Si, Reporting Room LRH Peshawar.
Police Station Proceeding: Upon the receipt of the report, the case is filed and FIR is registered. A copy of the FIR is handed over the investigation staff for investigation. The report is presented.
[Signature]
ASI Police Station
Sharki, Peshawar
13/3/2016
Following the English translation is what DXB19 alleges is a copy of the original of the FIR in Urdu, and bearing what appears to be a thumb imprint: SCB 314.
The relevant passages of the Authority Decision are at CB 297-299 at [14]-[18] as follows:
14.The applicant has repeatedly referred to his father with the title ‘Malik’ as part of his name, though the applicant made no claims of fear of harm regarding this in his 2013 statutory declaration. He first raised substantive claims pertaining to his father in his (July) 2016 declaration, when he claimed his father had been killed in Peshawar in March 2016. He referred to the title of Malik as indicative of his father being a prominent person in the Shia community with important administrative duties. He stated his father was well known to everyone in their community, including to Sunnis who had previously lived in Parachinar but had been displaced during the fighting. He first provided documentation in support of these claims at his 2019 PV interview. He provided a copy and English translation of his father’s CNIC issued in 2015 indicating his father’s title as Malik as well as his grandfather’s same title. He also provided a First Information Report (FIR) and its English translation. It is said to have been issued by police in Peshawar and is dated 13 March 2016. The report seems to indicate the presence of a police officer in the emergency room of the hospital where the corpse of the applicant’s father was brought, after he was allegedly killed by a firearm. It includes a statement by the applicant’s mother about the events, including that she and her husband had commuted to Peshawar for her to attend a doctor’s check-up and while she waited at the hospital and her husband had gone to obtain the medication prescribed for her, she heard gunfire and found him covered in blood and wounded. She states, as a Shia leader and tribal elder, he had previously been threatened by terrorists on many occasions and that she was certain he had been target killed by unidentified terrorists.
15.According to DFAT, FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred. Country information before me, including by Mariam Abou Zahab and DFAT, indicates that Peshawar belongs to Khyber Pakhtunkhwa (KP) province and that the name of the North West Frontier Province (NWFP) was changed into KP in April 2010. Yet, the FIR submitted by the applicant and dated in 2016, allegedly issued by a police station in Peshawar, refers to ‘Inspector General Police of NWFP Province’ in the header. While the table at the beginning of the document indicates the incident took place at Degree Garden, the body of the report instead refers to Dabgari Garden. Despite the existence of this FIR, and the applicant’s apparent ability to obtain it, he was unable to give any convincing reason for his inability to provide his father’s death certificate. Although he stated that his mother was uneducated and by herself and had only obtained the FIR with support from people from a Shia run hotel in Peshawar, this does not convince me she could not similarly obtain community support to retrieve a copy of her husband’s death certificate or lodge registration of his death. Similarly, as put to the applicant by the delegate, the FIR itself refers to the paperwork of the deceased being handed over to the doctor for the postmortem. However, the applicant has not provided any evidence of a post-mortem.
16.I have had regard to the recent arguments that the applicant only provided the FIR as it was the only document his mother was able to legitimately obtain and that the applicant being upset when speaking about his father’s death at the PV interview suggests this claim is genuine. Given however the country information and that there are some anomalies in the FIR; I do not consider this document, in isolation, or the applicant’s sorrow over his father’s death to be persuasive evidence of the claim that he died in this particular manner. I also note it has been over three years since the alleged event and consider even less plausible that within such an extended period, no further documents were obtained or able to be. Asked by the delegate about whether there would be a newspaper report or similar of the incident, the applicant said his father was not famous, just around his village he was (famous), that Peshawar was a very big area and that more than 6000 Shias had been killed since that time to present and just a few reports existed about them. I have also had regard to the arguments about DFAT information on limitations for the media covering stories including in the border areas of KP and that it was not commonplace for formal documentation to be issued in the applicant’s area. However, the incident took place outside of the applicant’s area and in KP more broadly, with no suggestion it was in a border area of KP. While I do not consider the absence of a news report determinative, I do consider it very doubtful that an incident of this nature, having allegedly taken place within proximity to a hospital/public space (where the sounds of the gunshots were said to have been heard from and where the FIR indicates the applicant’s mother was able to run to the scene of the crime from), would not have attracted great attention and been reported in some form in the media or otherwise. I also consider the timing of the applicant’s provision of documents in support of these claims, in 2019, a delay of some three years since he introduced the claims in 2016, to be telling, particularly in the context of his legal assistance at the time of and provision of other documents in providing his 2016 PV application as well as his further correspondence with the Department after this. I also note the evidence that indicates his father received threats prior to the alleged incident has been vague and lacking in any meaningful detail.
17.Nonetheless, in addition to the copy of his father’s CNIC card and his consistent written and oral evidence from an early time, that his father was a Malik who participated in Jirgas, during the PV interview, the applicant was able to discuss the leadership role of Malik within his family and its introduction by the English, which is consistent to country information from a journal paper dated in 2013 and authored by members of the Department of Anthropology of Quaid-i-Azam University in Islamabad. The same paper states that tribal leaders are known as Maliks and Maliks have a range of important roles including a central role in both intertribal and intra-tribal dispute resolution and through Jirga (Council of Elders).
18.On the evidence, I am prepared to accept that the applicant’s father held the title and role of Malik. However, I am not persuaded that the FIR is a genuine document or contains truthful information. I am prepared to accept that the applicant’s father may have passed away in recent times, but I do not accept that his father died due to any targeted killing. I accept, consistent to country information including from the MEI and Mariam Abou Zahab and the applicant’s claims, that his father, as a Malik among Maliks/Elders generally who are known to have resisted the Taliban’s passage through Kurram to and from Afghanistan, would have generally been seen to be against the Taliban, but I am not satisfied that this extended to any individual attention or knowledge of the applicant’s father by the Taliban.
Ground 2 is, as DXB19 submits, a traditional no evidence ground.
In order to succeed on a no evidence ground, DXB19 must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137 (“Bond”), CLR at 356 per Mason CJ. Even “a skerrick of evidence” will mean that an allegation of jurisdictional error premised on a no evidence basis will fail: MZZUG at [59] per Murphy J, and if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It is not required that evidence to support a finding be direct, and it may be found in material that permitted the Authority to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ; Bond, CLR at 367 per Deane J.
In this case there was some evidence that supported the Authority’s finding that the FIR was not a genuine document: CB 298-299 at [18]. That evidence included:
(a)country information from DFAT which indicated that:
(i)FIRs have “the relevant information written in by hand, and are relatively simple to counterfeit”: CB 297-298 at [15]; and
(ii)police in Pakistan accept bribes to verify fraudulent FIRs: CB 297-298 at [15];
(b)an anomaly in the FIR provided by DXB19, most notably that in March 2016 it referred to the “NWFP”, that being an abbreviation for “North West Frontier Province”, when the name of the province had been changed to Khyber Pakhtunkhwa a month short of six years earlier in April 2010: CB 297-298 at [15] (there was another anomaly identified by the Authority in relation to the name of the place at which the shooting incident said to involve DXB19’s father took place: CB 297-298 at [15], but the difference in the names is such that it in the Court’s view it might be accounted for by a translation error); and
(c)a delay of three years in obtaining the FIR: CB 298 at [16], a fact which might be said to corroborate the evidence concerning the possibility or simplicity of counterfeiting FIRs.
The Court is therefore not satisfied that there was no evidence to support the finding that the FIR was not a genuine document. Ground 2 is not made out.
Ground 3 asserts that a finding of fact by the Authority “that fraudulent FIR’s [sic] are easily available in Pakistan” was “based on an unwarranted assumption”.
The Authority did not however make the finding of fact alleged in ground 3 “that fraudulent FIR’s [sic] are easily available in Pakistan”. Rather it found as a fact that the FIR was not a genuine document and did not contain truthful information: CB 298-299 at [18]. That the FIR was not a genuine document was a conclusion open to the Authority for the reasons set out at [22]-[23] above.
The factual finding that the FIR did not contain truthful information was not, in any event, based on an unwarranted assumption in circumstances where:
(a)as set out at [23(a)] above, there was country information which indicated that FIRs were relatively simple to counterfeit and that the Pakistani police accepted bribes to verify fraudulent FIRs; and
(b)there was information which indicated that DFAT did “not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred”: CB 297-298 at [15];
(c)there ought to have been other reasonably readily available information able to be produced to the Authority, including a death certificate for DXB19’s father and a post-mortem report or post-mortem paperwork, but it was not produced: CB 297-298 at [15];
(d)there was no press report of the shooting of a tribal elder, a Malik, outside a hospital in Peshawar (the capital of Khyber Pakhtunkhwa), as there might have been expected to be: CB 298 at [16]; and
(e)there was a three year delay in providing the FIR: CB 298 at [16],
and from which it might be inferred (as the Authority did: CB 298-299 at [18]) that DXB19’s father was not killed in the manner alleged in the FIR.
In circumstances where the evidence was as set out in the previous paragraph, and:
(a)the Authority’s findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)the weight to be given to DXB19’s claims and evidence was a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(c)the choice of, and weight to be given to, country information is, generally speaking, a matter for the Authority to determine: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 v Minister for Home Affairs [2020] FCAFC 18 (“CXS18”) at [37] per McKerracher, White and Colvin JJ; and
(d)a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131], [132] and [135] per Crennan and Bell JJ,
it follows that there was nothing illogical in the Authority not accepting that DXB19’s father “died due to any targeted killing”, and nor was there an unwarrantable assumption made, because on the evidence there was an evident or intelligible justification for the Authority’s conclusion: BOH17 at [8] per Perram J.
The Court is therefore satisfied that ground 3 is not made out.
In the circumstances grounds 2 and 3 of the Amended Judicial Review Application not having been made out, they do not establish jurisdictional error in the Authority Decision.
Grounds 4 and 5
Grounds 4 and 5 of the Amended Judicial Review Application are as follows:
4.The second respondent's decision is illogical and/or legally unreasonable because of the unwarranted assumptions being made by the reviewer, namely that the school which the applicant attended in Pakistan would take action to protect its students, and that the unwarranted assumptions resulted in a decision where the decision was illogical and/or outside jurisdiction.
Particulars
4.1The reviewer does not accept that the applicant was targeted in Peshawar [Court Book- p.300 - Decision of the reviewer dated 30 September 2019, pp 23-24].
4.2 The reviewer makes the following findings that:
4.2.1The “school would be concerned that their students were being threatened by the Taliban.”
4.2.2The reviewer states that “I do not consider it plausible or at all convincing that he would have destroyed evidence of a threat to his life, or that thereafter, he could not or did not tell anybody else about it, if he did indeed take the threat seriously and was frightened by it.”
4.2.3That “I also do not consider plausible that he would not at the least have informed his school or principal or even his hostel staff.”
4.2.4That “I do not accept that he believed his school/staff would not wish to become involved or at least aware of an apparently life-threatening matter that allegedly had a direct bearing on their students and thus the college and they themselves.” [Court Book- p.300 - Decision of the reviewer dated 30 September 2019, pp 23-24].
5.The second respondent’s decision is illogical and/or legally unreasonable due to the circumstances in which it was made and because of their failure to take into account relevant considerations.
Particulars
5.1The reviewer does not accept that the applicant was targeted in Peshawar[Court Book - p.299 - Decision of the reviewer dated 30 September 2019, para 20].
5.2 Amongst his considerations in reaching that conclusion, the reviewer states that [Court Book - p.299 - Decision of the reviewer dated 30 September 2019, para 21]:
“Background Paper on Shias suggests that the security situation in Peshawar was poor during that period. that militant groups had a presence there and carried out larger scale attacks on Shias there. However. the same material also consistently indicated that when the Taliban and similar groups did carry out individual targeted attacks on Shias or others. their interest was predominantly in much higher profile individuals. They did so through abductions and kidnappings for ransom, aimed for instance at acquiring revenue for their activities or negotiating the securing of their arrested figures. The reporting indicates that this involved prominent figures such as the vice-chancellor of a university who was also a cousin of the head of the Awami National Party, wealthy industrialists, academics, Western aid workers and relatives of military officers. Shia professionals such as politicians, doctors, architects and judges were also targeted as well as Shias travelling on the roads. The evidence does not support that the applicant. a mere student at the time. had a profile or circumstance akin to that reported, to attract the level o[interest or any individual interest from extremist groups that he claims.”
5.3 The applicant gave evidence that:
“During the PV interview, the applicant said his family own a lot of land and grow produce seasonally on it. He also said they provide people from the village with portions of their land to grow crops on and at the end of each year divide this in half with those individuals. The applicant said that his family were not wealthy but were well off. In Australia. he has worked as a taxi driver.”
5.4Neither the delegate nor the reviewer rejects the applicant's evidence that he was from a family of some means, who owned a lot of land and conducted business with people from the village by providing them with land on a profit-sharing basis each year.
5.5He came from a family of some means who would, by inference, be known in the community.
5.6Where the reviewer accepts that individuals of wealth are targeted for kidnappings, especially so in the Shia/Turi community, the conclusion that the reviewer reached that the applicant had no profile to attract any attention of people who may wish to harm him because of his race or religion was not open to him on the evidence.
5.7 The decision does not follow logic.
DXB19’s submissions on grounds 4 and 5
DXB19’s submissions in relation to grounds 4 and 5 are as follows:
(a)the authorities as stated in ground 3 above are relied upon for ground 4;
(b)DXB19 submits that the finding made by the Authority that he was not targeted in Peshawar is based on unwarranted assumptions;
(c)DXB19 submits that the unwarranted assumptions are of such weight so as to result in a jurisdictional error;
(d)DXB19 relies on the particulars as stated for ground 4 and submits that the finding made by the Authority in ground 5 is illogical or is legally unreasonable.
Minister’s submissions on grounds 4 and 5
The Minister’s submissions on grounds 4 and 5 are as follows:
(a)to understand what grounds 4 and 5 allege, it is important to understand the Authority’s reasoning with respect to DXB19’s claims to fear harm in Peshawar in context;
(b)the Authority accepted that, due to security concerns in Parachinar, in about 2009, DXB19 moved to Peshawar to attend secondary school where he studied at a multi-faith school with a British principal as a headmaster: CB 299 at [19];
(c)DXB19 claimed that while in Peshawar, he was threatened via a phone call and a letter, and that he was followed while purchasing school books at a bazaar. The Authority did not accept these claims because the weight of the evidence did not support that an individual in his circumstances would have been singled out and targeted as he claimed: CB 299 at [20]. Relevantly, the Authority:
(i)had regard to country information which said that while the security situation in Peshawar was poor at the time, only higher profile individuals and Shias were targeted or abducted/kidnapped for ransom. The Authority reasoned that the “evidence does not support that [DXB19], a mere student at the time, had a profile or circumstance akin to that reported, to attract the level of interest or any individual interest from extremist groups that he claims”: CB 299 at [21];
(ii)accepted that while the multi-faith school DXB19 attended might have been subjected to threats, it seriously doubted that DXB19, who had no profile, would be singled out: CB 300 at [22];
(iii)did not accept:
(A)as plausible that after DXB19 received the threatening letter which he took seriously, that he would destroy the letter and not tell anyone about the threat: CB 300 at [23]; and
(B)that DXB19 was actually followed in the bazaar by three men while buying school books, because DXB19’s observation that someone he thought was following him also came into a stationery shop did not reasonably support that conclusion, particularly in the context of DXB19’s other concerns: CB 301 at [24];
(d)in light of all of the above factors, the Authority rejected DXB19’s claim to have been threatened and harassed by terrorists in Peshawar;
(e)in relation directly to ground 5, this finding was open to the Authority in light of the factors identified by it and which are set out above;
(f)returning to ground 4, DXB19 appears to cavil with the Authority’s reasoning at CB 300 at [23]. Contrary to DXB19’s submissions, the Minister submits that the Authority did not assume that the school would assist DXB19 if he disclosed the threats. Rather, the Authority drew inferences about what DXB19, then a teenage secondary school student living away from his family, would have done in light of receiving a letter that he believed contained a credible threat. The Minister submits that it was open to the Authority to find that DXB19’s explanation was implausible; and
(g)for completeness, the Minister observes that the Delegate found that DXB19 was not threatened by extremists in Peshawar, so DXB19, who was legally represented before the Authority: SCB 315-316, was on notice that this was in issue. In fact, DXB19’s representative’s submissions to the Authority addressed the threats in Peshawar: SCB 318-320 and the Authority had regard to those submissions: CB 294 at [4].
Considerations of grounds 4 and 5
In considering DXB19’s claims concerning a threatening telephone call and a follow up letter when he was a high school student in Peshawar in 2010 the Authority made the following observations and findings:
(a)that it did not accept that DXB19 was targeted whilst in Peshawar, as the weight of evidence did not support that an individual in his circumstances would be targeted in this way, and because it did not consider “his evidence on how he responded to the alleged life threatening predicament he was in” to be plausible: CB 299 at [20];
(b)at CB 299 at [21] that country information did indicate that:
(i)the security situation in Peshawar was poor at that time;
(ii)militant groups had a presence in Peshawar and carried out “larger scale attacks on Shias”, but that “their interest was predominantly in much higher profile individuals” including a university vice-chancellor, wealthy industrialists, academics, Western aid workers, relatives of military officers, and Shia professionals such politicians, doctors, architects and judges;
(iii)the:
… evidence does not support that the applicant, a mere student at the time, had a profile or circumstance akin to that reported, to attract the level of interest or any individual interest from extremist groups that he claims.
(c)at CB 300 at [22]:
I accept as plausible that a wellknown, co-educational and multi-faith college, may itself be the subject of attention to the Taliban and that its’ prominent figures may even be subjected to Taliban threats. However, I seriously doubt that the applicant, a young student with no apparent profile or public role towards education or other issues of interest to the Taliban, would have been of individual interest, singled out, or targeted.
(d)at CB 300-301 at [23]-[24]:
23.While the applicant claimed that he did not take the phone call seriously and he thought many people were receiving these calls, he said he did take the threats in the letter seriously and was so frightened that he destroyed the letter. At the PV interview, he said that because of this fear, he could not tell anyone else about the letter. He did not report the incident to his school or to the police. He said that only his college principal was from the UK and he suggested that the teachers and other staff were not trustworthy. Asked whether he thought the school would be concerned that their students were being threatened by the Taliban, he said that nobody wanted to become involved in that kind of problem as the Taliban was a very powerful network in Pakistan. I do not consider it plausible or at all convincing that he would have destroyed evidence of a threat to his life, or that thereafter, he could not or did not tell anybody else about it, if he did indeed take the threat seriously and was frightened by it. I also do not consider plausible that he would not at the least have informed his school or principal or even his hostel staff. I do not accept that he believed his school/staff would not wish to become involved or at least aware of an apparently life threatening matter that allegedly had a direct bearing on their students and thus the college and they themselves. He stated that his phone number may have been easily found as the perpetrators had links everywhere and could have located it through his credit top ups to his phone or through his college. If he did believe his number may have been located through his college, I have further doubts as to why he did not report these events to the college principal at a minimum. Even more so given his claim that it was not long after the threat letter that his friend from his village who was studying in Peshawar disappeared and that this concerned him further. He has not provided any corroborative independent evidence to support this incident and argues that many kidnappings of students go unreported. He claimed that to assist each other to remain safe, he and his school friends only went out as a group and ensured that those who lived off campus were always accompanied on their commutes to and from school. I am not convinced that if his friend, a fellow student, had gone missing, and having received a direct threat letter and call himself from the Taliban, the applicant, as a young person, away from his family, would not have taken more significant steps to secure his safety at this time. I consider his seeming inaction towards the threats instead reflect that his life was not in any imminent danger and that he was not targeted as claimed.
24.The applicant also claimed that one day, after buying school books at the bazaar in Peshawar he felt he was being followed closely by three men. At the PV interview, he said if someone is following you, you have that feeling because you are going everywhere, and they are already there and it was when he entered a stationary shop and one of these individuals also came inside that he decided they were definitely following him. He then ran away and sought refuge in a hotel run by Shias in Peshawar. I do not consider his conclusion that he was being followed to be plausible or convincing, particularly in the context of my concerns with his evidence on his alleged targeting that preceded this incident.
As previously set out (at [28] above):
(a)a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: SZMDS at [131], [132] and [135] per Crennan and Bell JJ; and
(b)an unwarrantable assumption is not made where, on the evidence, there is an evident or intelligible justification for the Authority’s conclusion: BOH17 at [8] per Perram J.
SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 (“DAO16”) at [4] and [30] per Kenny, Kerr and Perry JJ. Further, the Court must bear in mind that:
(a)the Authority’s fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant’s claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI at [11]-[14] per Gray, Tamberlin and Lander JJ; CXS18 at [37] per McKerracher, White and Colvin JJ;
(b)it ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS at [35] per Gummow ACJ and Kiefel J;
(c)it must read the Authority Decision fairly and as a whole: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ; BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (“BYX17”) at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 (“WZAVQ”) at [55] per Barker J;
(d)a decision may be unreasonable if it lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] Hayne, Kiefel and Bell JJ. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [21] per Allsop CJ. The decision as a whole must be illogical or unreasonable to constitute jurisdictional error: Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225; (2019) 367 ALR 465 at [84]-[85] per Besanko, Banks-Smith and Colvin JJ; and
(e)the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined”: SZVFW at [52] per Gageler J, or requires something in “the realm of the extraordinary”: SZVFW at [70] per Gageler J.
In BVB15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 413 at [76(a) and (b)] per Banks-Smith J the Federal Court observed that:
76. The following overarching principles are uncontentious:
(a)the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [30]; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187];
(b)it is for an applicant to advance whatever evidence or argument they wish to advance in support of their claim that they are entitled to a visa. The Tribunal must then determine whether that claim is made out: Abebe at [187]…
DXB19 therefore had to advance whatever evidence or argument he wished to advance in support of his SHE Visa application, and the Authority had to decide whether the claim was made out, but the Authority was not required to uncritically accept all or any of the claims made by DXB19, or have rebutting evidence before it could decide not to accept DXB19’s claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”), CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 (“Randhawa”), FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 (“EGU17”) at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (“Selvadurai”) at 348 per Heerey J).
Ground 4 is based on a false premise. At no stage did the Authority find that “the school which the applicant attended in Pakistan would take action to protect its students”. There was therefore no unwarranted assumption to that effect. The closest the Authority came to that alleged unwarranted presumption is the finding at CB 300 at [23] that the Authority did not accept that DXB19 “believed his school/staff would not wish to become involved or at least of an apparently life threatening matter that allegedly had a direct bearing on their students and thus the college and they themselves”.
Particular 4.2.1 is misleading. It puts as a quote that “[t]he “school would be concerned that their students were being threatened by the Taliban’”. As is evident from the full text of the Authority Decision at CB 300 at [23] the phrase in the particular quoted above is only part of a sentence which reflects a question asked of, and a response given by, DXB19, as follows:
Asked whether he thought the school would be concerned that their students were being threatened by the Taliban, he said that nobody wanted to become involved in that kind of problem as the Taliban was a very powerful network in Pakistan.
A proper examination of the Authority Decision demonstrates that the Authority did not accept that DXB19 was targeted in the manner suggested because:
(a)the weight of evidence, primarily country information, did not support the fact that an individual in DXB19’s circumstances, a young student with no apparent profile or public role towards education or other issues of interest to the Taliban, would have been of individual interest, singled out, or targeted by the Taliban: CB 299 at [20]-[21]; and
(b)it did not consider DXB19’s evidence on how he responded to the alleged threats to be satisfactory for a number of reasons, as set out particularly at CB 300 at [22]-[23] (the latter paragraph being set out in full at [34(b)] above), including:
(i)that the Authority did not consider it plausible or convincing that DXB19 would have destroyed the letter which was evidence of a threat to his life, or that he could not or did not tell anybody else about the threat or the letter, if he was in fact frightened by it and took the threat seriously;
(ii)that the Authority did not consider it plausible that he would not at the least have informed his school or principal or even his hostel staff of the threat;
(iii)that if DXB19 did believe his telephone number may have been located through his college, that it had doubts as to why he did not, at a minimum, report these events to the college principal, particularly as it was not long after the threat letter that he alleged his friend from his village who was also studying in Peshawar disappeared;
(iv)the failure to provide any corroborative independent evidence to support the alleged kidnapping of his friend;
(v)that having allegedly personally received direct threats by letter and telephone from the Taliban, that DXB19, as a young person, away from his family, would not have taken more significant steps to secure his safety at that time, that is other than his claim that to assist each other to remain safe he and his school friends only went out as a group and ensured that those who lived off campus were always accompanied on their commutes to and from school; and
(vi)that DXB19’s seeming inaction towards the threats reflected that his life was not in any imminent danger and that he was not targeted as claimed.
The findings made by the Authority as set out in the previous paragraph were open on the evidence, in particular the country information and by inference from DXB19’s evidence, and were neither unreasonable, nor illogical (let alone extremely so: DAO16 at [4] and [30] per Kenny, Kerr and Perry JJ). The findings, many of which accord with basic common sense, are not findings:
(a)that could not be made by a decision-maker acting reasonably, and they have an evident and intelligible justification: Li at [76] Hayne, Kiefel and Bell JJ; SZMDS at [131]-[135] per Crennan and Bell JJ; BOH17 at [8] per Perram J; and
(b)in “the realm of the extraordinary”: SZVFW at [70] per Gageler J, so as to meet the stringent test for legal unreasonableness: Li at [113] per Gageler J.
In the circumstances ground 4 does little more than suggest that the Authority ought to have arrived at a different decision, and is a plea for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that ground 4 is not made out in its terms which are based on a false premise, and nor does ground 4 establish that the Authority Decision was either illogical or unreasonable.
Ground 5 pleads that the Authority Decision is illogical or unreasonable and fails to take in to account relevant considerations.
Illogicality and unreasonableness are dealt with at [36] above.
The Authority must consider each necessary and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 (“Peko-Wallsend”). A failure to take into account a “relevant consideration” can only arise if that consideration was a “mandatory consideration” in the sense discussed in Peko-Wallsend: Peko-Wallsend, CLR at 39 per Mason J. In order for a matter to amount to a mandatory consideration it must be expressly stated to be required to be taken into account by the relevant legislation or, otherwise, must arise by implication from the subject matter, scope and purpose of the relevant legislation.
Ground 5 relates only to DXB19 “being targeted in Peshawar”: Transcript, p 7.
Ground 5, and its particulars, fails to identify what relevant consideration the Authority failed to take into account.
Otherwise, ground 5, as particularised, seems to cavil with whether or not DXB19’s family were wealthy enough to warrant DXB19 being a target for kidnapping by militants, including the Taliban. Particular 5.6 in this regard asserts that:
Where the reviewer accepts that individuals of wealth are targeted for kidnappings, especially so in the Shia/Turi community, the conclusion that the reviewer reached that the applicant had no profile to attract any attention of people who may wish to harm him because of his race or religion was not open to him on the evidence … [,]
and at Particular 5.7 it is said that the Authority Decision “does not follow logic”.
And yet in Particular 5.3 DXB19’s evidence that “his family were not wealthy but were well off” (emphasis added) is quoted (as set out at CB 304 at [36]). DXB19 then asserts that the Authority did not reject DXB19’s evidence that he came from “a family of some means” who owned a lot of land and were engaged in business by providing people in the village with land on a profit-sharing each year (Particulars 5.3 and 5.4), and submits that because the family was a family of some means they would “by inference, be known in the community” (Particular 5.5). The Authority understood and set out all of the facts cited by DXB19 in ground 5: particular 5.3 setting out DXB19’s evidence is in fact a quote from the Authority Decision at CB 304 at [36].
The Authority gave express consideration to whether DXB19 might have been a target for kidnapping when a student in Peshawar: see, in particular, CB 299 at [21] cited and quoted from at [34(b)] above. Rural landowners “of some means” (but who on DXB19’s own account were “not wealthy”) and their children are simply not included in the list of persons found by the Authority to be persons who were targets for kidnapping: CB 299 at [21]. DXB19 does not specifically challenge the Authority’s finding as to who might be a target for kidnapping, but rather seems to argue that because DXB19’s parents were rural landowners “of some means” (as it is put in Particulars 5.4 and 5.5), or “well off’ (as put in DXB19’s evidence cited at CB 304 at [36] and Particular 5.3) that DXB19 might have been a target for kidnapping. The question of who was a target for kidnapping, and in particular whether DXB19 as a student in Peshawar was such a target, was considered by the Authority, and the Authority found at CB 299 at [21] that:
… evidence does not support that the applicant, a mere student at the time, had a profile or circumstance akin to that reported, to attract the level of interest or any individual interest from extremist groups that he claims …
There is no lack of logic in the Authority’s finding, and nor is it unreasonable: it is drawn from the evidence before it, in particular the country information, and has an evident and intelligible justification.
It follows that ground 5 is not made out and does not establish jurisdictional error in the Authority Decision.
Ground 6
Ground 6 is as follows:
6.The second respondent erred by asking the wrong question, namely whether the applicant was individually targeted, instead of being targeted as part of a particular social group, thereby, consequently making the wrong decision.
Particulars
6.1The reviewer, where suitable to their conclusion, asks the wrong questions on whether the [applicant] was “singled out” [Court Book - p.299 - Decision of the reviewer dated 30 September 2019, para 20] for “individual interest” [Court Book - p.299 - Decision of the reviewer dated 30 September 2019, para 21] from extremist groups.
6.2 Respectfully, that is not the appropriate test.
6.3The correct test is whether the applicant belonged to a class of persons - a particular social group - who because of a common trait based on their race, religion, nationality, membership of a particular social group or political opinion held a well-founded fear of persecution.
6.4There is no requirement for the applicant to have been “individually targeted” or have an “individual adverse profile.”
6.5The requirement is for the objective conditions of persecution for a particular class of persons to exist and the subjective fear that is based on those conditions for the applicant to exist.
6.6The reviewer does not challenge that the applicant was the son of a Malik. The reviewer does not challenge that the applicant came from a family of some means. The reviewer accepts that individual targeted attacks against Shias were carried out in that period. especially for kidnappings and ransoms.
6.7The reviewer failed to consider whether the applicant either individually on his personal circumstances. or as part of a particular social group, or both, could have been targeted in the manner in which the applicant deposed.
DXB19’s submissions in relation to ground 6
In relation to ground 6 DXB19’s submitted that:
(a)the Authority erred by asking the wrong question which is whether DXB19 was “singled out” for “individually interest”;
(b)instead, DXB19 submits that the correct test is if DXB19 was targeted as part of a “particular social group.”;
(c)in Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387; (2004) 78 ALJR 854; (2004) 206 ALR 242; (2004) 77 ALD 541 (“Applicant S”) at [36] per Gleeson CJ, Gummow and Kirby JJ a majority in the High Court concluded in that the following criteria should be examined in determining what constitutes a particular social group for the purposes of the refugee convention:
Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A [(1997) 190 CLR 225], a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”. As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.
(d)DXB19 was a member of such a particular social group – namely a Shia Turi, and as such, the correct question the Authority ought to have asked is if a Shia Turi group in Peshawar could have been targeted by Sunnis, and if so, did DXB19 form part of such a group; and
(e)“a person could be targeted within a group or be part of a group that is being targeted. And the second part of it is what I submit … there is a failure to consider that”: Transcript, p 8.
Minister’s submissions on ground 6
In relation to ground 6 the Minister submitted that:
(a)contrary to DXB19’s submission, the Authority did find that DXB19 was identifiable as a member of a particular social group, namely a Shia Turi Pashtun from Parachinar, in Pakistan: CB 296 at [11]-[12];
(b)further, while the Authority accepted that DXB19 was the son of a Malik, it did not accept that he would assume the role of Malik if returned to Pakistan, or that Maliks and their sons are targeted for that reason: CB 302 at [29]; and
(c)the Authority ultimately found that, in light of DXB19’s profile and the supporting evidence, DXB19 would not face a real risk of serious harm if returned to Pakistan. DXB19 has not identified any error in this approach, and to the contrary, this reasoning process was lawful.
Consideration of ground 6
Ground 6 alleges that the Authority focussed inappropriately on whether DXB19 would be individually targeted, rather than inquiring whether he was a member of a particular social group, namely Shia Turis, that would face a real risk of harm as alleged.
Section 5J(1) provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
As submitted by DXB19 the High Court in Applicant S defined what was meant by a “particular social group” for the purposes of that phrase as it now appears in s 5J(1)(a): see [56(c)] above, but that definition was not in dispute here.
Merely being a member of a particular social group is not enough to establish a “well-founded fear of persecution”: in order to find that a person has a “well-founded fear of persecution” there must be a “real chance” that “the person” (here DXB19) “would be persecuted” for a reason, including being a member of a particular social group: s 5J(1)(b). The focus is therefore on the facts as they pertain to DXB19, having regard to his membership of a particular social group, here Shia Turis. It is also necessary to read the Authority Decision as a whole, and not over-zealously in search of error: WAEE at [47] per French, Sackville and Hely JJ; BYX17 at [49] per Rangiah, White and O’Callaghan JJ; WZAVQ at [55] per Barker J; Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; SZMDS at [35] per Gummow ACJ and Kiefel J.
At CB 296-297 at [12] the Authority:
(a)accepted that DXB19 was “a Turi, Pashtun and practising Shia Muslim”;
(b)found that DXB19 “would be identifiable as a Turi Pashtun Shia from Kurram”;
(c)accepted that DXB19 would be “identifiable as a Shia Muslim” when participating in religious events; and
(d)was “willing to accept that” DXB19 “has a distinctive Turi accent” and that “DFAT indicates the Turi tribe is a Shia Pashtun tribe”.
There is no question therefore that the Authority identified DXB19 as a Shia Turi, and although it did not make an express finding to this effect, it can be inferred that it accepted that DXB19 was a member of a particular social group, namely Shia Turis.
In determining whether there was a real chance that DXB19 would be persecuted if returned to Pakistan the Authority then took into consideration numerous matters, including the following:
(a)a 2013 Australian Department of Immigration and Citizenship “Background Paper on Shias”, which indicated that in Peshawar there had been large scale attacks on Shias by militant groups, and that the Taliban did carry out individual targeted attacks, but only on persons with a particular profile, including “Shia professionals such as politicians, doctors, architects and judges” and “Shias travelling on the roads”: CB 299 at [21];
(b)at CB 301 at [26] that:
While I accept as a Turi Shia from Kurram and even as a student at a multi-faith and coeducational college, it is possible that the applicant may generally be viewed as being an opponent to the Taliban I am not satisfied he ever came to adverse attention or became personally known to the Taliban or other extremist or affiliated elements in Pakistan.
(c)noting DXB19’s claim that “particularly as a Shia” he would be targeted due to his commitment to education: CB 301 at [27];
(d)insofar as being a Malik was part of his claim, and an element of his being a Shia Turi, took that into account in finding that neither he nor his father (nor his father’s family) were personally known to or targeted by the Taliban, and that there was not a real chance that they would be, and in so finding took into account “the significant improvement for the situation of Shia Turis in Kurram … reported in recent years”: CB 302 at [29];
(e)noted the three large scale attacks on Shias in Parachinar in the first half of 2017, but that there had “been no further attacks on Shias reported in Parachinar or further major attacks in Kurram, for over two years”: CB 303 at [33];
(f)at CB 304 at [35] noted DFAT information concerning:
(i)a trend of decreased reports of attacks against Turis in 2018; and
(ii)“a low risk of sectarian violence” against Shias in the former FATA (Federally Administered Tribal Areas”); and
(g)noted information concerning attacks against Shias on the roads in and around Kurram from 2008 until 2014 and in 2015, and the subsequent decline in such attacks, and that there were significantly fewer attacks on the roads against Turis in 2018: CB 304-305 at [37].
Having regard to the Authority Decision as a whole, and in particular the matters set out at [62]-[64] above, the Court has no doubt that the Authority recognised that DXB19 was a member of a particular social group of Shia Turis, and that the Authority took that into account in assessing, for the purposes of s 5J(1)(b), whether there was a real chance that DXB19 would be persecuted because of his membership of that particular social group.
In relation to ground 1 DXB19 submitted that:
(a)ground 1 is pleaded on the basis of apprehension of bias;
(b)the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577 (“Ebner”) at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ, as follows: whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand;
(c)in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36] per Allsop CJ, Kenny and Griffiths J ALA15 the Full Court of the Federal Court explained that:
…at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i)there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii)there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);
(d)in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”) Hayne J (with whom Gleeson CJ and Gummow J agreed) explained that:
(i)the rules in relation to bias through prejudgment are different in administrative decision-making as compared to judicial decision-making: at [180];
(ii)specialised administrative tribunals can be expected to bring to the task of decision-making “a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications”. Such a decision-maker could be expected to build up “expertise” in matters such as country information; and “[o]ften information of that kind is critical in deciding the fate of an individual’s application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment”: at [180];
(iii)saying that a decision-maker has prejudged or will prejudge an issue, or that there is a real likelihood that a reasonable observer might reach that conclusion, involves the following contentions in respect of the decision-maker:
(A)they have an opinion on the relevant aspect of a matter in issue;
(B)they will apply that opinion to the matter in the case; and
(C)they “will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case”: at [185]; and
(iv)having or expressing preconceived opinions does not constitute bias or a reasonable apprehension of bias, by pre-judgment, for it does not follow that the decision-maker will disregard the evidence: at [186].
(e)the question as to a reasonable apprehension of bias is “one of possibility (real and not remote), not probability”: Ebner at [7]. Even so, as explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128; (2001) 75 ALJR 848; (2001) 179 ALR 296; (2001) 65 ALD 321 at [90] per Kirby J the test (citations omitted):
…is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair-minded observer and speculates on whether that person “might” (rather than “would”) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be “firmly established”…
(f)an allegation of apprehended bias against an administrative officer must be distinctly made and clearly proved. More must be shown than a mere predisposition of the Tribunal to a particular view and it is necessary to show that a decision-maker’s mind is not open to persuasion: Jia Legeng at [69] and [71]-[72] per Gleeson CJ and Gummow JJ;
(g)section 473DA provides an exhaustive statement in relation to the fair hearing rule;
(h)based on the particulars as pleaded in Ground 1 DXB19 establishes that there is more than a remote possibility that the reviewer:
(i)did not have an open mind when reviewing the application;
(ii)had a foregone conclusion in their mind;
(iii)interpreted the available information in a manner which may be seen as in a biased manner by a fair-minded lay observer;
(iv)filled gaps in information with adverse assumptions which are not necessarily based on any evidence or facts; and
(v)disregards DFAT advice that individuals with DXB19’s profile, namely, Shia Turis, cannot be relocated to DXB19’s province, namely, Khyber Pakhtunkhwa; and
(i)although the test for apprehended bias is a high one, on the evidence of the Authority Decision, which departs from the Delegate’s Decision significantly, and on the same evidence before them, this raises the question of apprehended bias.
Minister’s submissions on ground 1
In relation to ground 1 generally the Minister submitted that:
(a)ground 1 alleges that the Authority’s decision ‘is not free of bias, or was affected by apprehended bias’: see also DXB19’s submissions at [3];
(b)the Minister agrees with DXB19’s submissions at [4] and [12] that the test for apprehended bias is “whether a fair-minded lay observer with knowledge of the material objective facts might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question at hand”, and that that test is a high one;
(c)DXB19 submits that the question of apprehended bias arises because the Authority’s decision departs “significantly’ from the Delegate’s Decision despite having the same evidence before them: DXB19’s submissions at [12]; and
(d)this submission fails at a factual and a legal level for the following reasons.
In relation to the factual issue in ground 1 as to the Delegate’s findings and the Authority’s findings the Minister submitted that:
(a)contrary to DXB19’s submission, the Delegate and Authority’s factual findings were, on the whole, similar;
(b)both the Delegate and the Authority found, for example, that:
(i)DXB19 was of Pashtun ethnicity, a member of the Turi tribe, a Shia Muslim, and had lived most of his life in Kurram Agency, Pakistan: CB 238-239 and CB 296 at [10]-[12];
(ii)DXB19’s father was a Malik, or a Shia village leader with administrative responsibilities, and that his father passed away around March 2016: CB 242, 245-246 and CB 297-299 at [14]-[18];
(iii)DXB19’s life was generally affected, and that people he knew were injured, by sectarian violence in the region in Parachinar from 2007 until the middle of 2008 when he moved to Peshawar: CB 242-243 and CB 297 at [13];
(iv)DXB19’s father was not killed by extremists. Relevantly, the Delegate cast doubt over the genuineness of the FIR filed by DXB19’s mother, but rejected the claim that DXB19’s father was killed by extremists due to the lack of corroborative evidence such as media reports (which might be expected for the assassination of a public official/leader in a public place) or a death certificate. The Authority:
(A)referred to country information that FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit: CB 297 at [15];
(B)noted anomalies in the FIR relied upon DXB19 finding that it was not a genuine document: CB 297-298 at [15]-[16];
(C)was concerned by the lack of corroborating evidence for the cause of DXB19’s father’s death and noted that DXB19 had opportunities since being legally represented to provide such evidence: CB 298 at [16]; and
(D)found that the evidence of threats made to DXC19’s father were “vague and lacking in any meaningful detail”: CB 245-246 and CB 298 at [16];
(v)DXB19 was not, contrary to his claims, targeted in Peshawar as a secondary school student by extremists, including being followed by three men in a bazaar. Both the Delegate and the Authority noted country information that there was evidence of high profile persons being targeted by extremists, but that in contrast DXB19 only had a profile as a Shia Turi student: CB 243-244 and CB 299 at [19]-[21] and CB 301 at [24]; and
(vi)DXB19 would not have a profile as a Malik, which is a hereditary title, if he returned to Pakistan: CB 244 and Authority Decision at CB 302 at [29];
(c)this is not to say that the Delegate and Authority made identical factual findings;
(d)relevantly, the Delegate and Authority had different bases for finding that DXB19 would not have a profile as a Malik on return to Pakistan. Whereas the Delegate found that DXB19 would not assume the role of Malik: CB 244, because of his older half-brothers and long absence from Pakistan, the Authority found that DXB19’s family did not have a profile in Pakistan when his father was a Malik and also that country information suggested that Maliks had not been targeted in recent years: CB 302 at [29];
(e)for these reasons, contrary to DXB19’s submissions at [12], on a fair reading of the Delegate’s Decision and Authority Decision, their factual findings were not “significantly” different; and
(f)for completeness, it is noted that DXB19 submits that the particulars to ground 1 in the Amended Judicial Review Application support the claim of bias. The particulars to ground 1 run for over 5 pages and DXB19’s submissions does not explain how these particulars support ground 1.
In relation to the legal issue in ground 1 as to the basis for proving bias the Minister submitted that:
(a)an allegation of bias must be distinctly made and clearly proved: Jia Legeng at [69] per Gleeson CJ and Gummow J. Here, DXB19 has submitted that the Authority’s significant departure from the Delegate’s Decision “raises the question of apprehended bias”: DXB19’s submissions at [12]. This is not a clear allegation of bias and is consistent with the terms of ground 1;
(b)even if the Court accepts that the Authority’s reasons were a significant departure from the Delegate’s reasons (which, for the reasons outlined above, the Minister does not concede), this would not give rise to an apprehension of bias;
(c)the test for apprehended bias first requires the consideration of whether there was some fact or circumstance that a fair-minded lay observer would consider might prevent a decision-maker from bringing an impartial mind to the task. As the High Court has warned previously, DXB19’s argument in this case that the Authority’s findings reveal an apprehension of bias “moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased”: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (2011) 282 ALR 685; (2011) 86 ALJR 14; (2011) 282 ALR 685 at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ; and
(d)DXB19 has failed to identify any fact or circumstance that might have existed prior to the Authority making its decision which could substantiate a finding of apprehended bias.
Consideration of ground 1
Bias is a serious allegation that must be “distinctly made and clearly proved”: Jia Legeng at [69] per Gleeson CJ and Gummow J; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 (“SZNPG”) at [18] per North and Lander JJ. No inference of bias or prejudgment should be drawn from the mere fact of adverse findings in the Authority Decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102; [2007] 77 ALD 23 at [21] per Kenny J; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs and Multicultural and Indigenous Affairs [2002] FCA 668 (“SCAA”) at [38] per von Doussa J; WABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3] per Hill J.
In determining whether a decision of an administrative decision-maker such as the Authority is affected by apprehended bias the Court observes that:
(a)it need not be established that the Authority was devoid of any pre-disposition or inclination for, or against, an argument or conclusion. All that is required is for the Authority to be open to persuasion: Jia Legeng at [72] and [86] per Gleeson CJ and Gummow J;
(b)an apprehension of bias must be “firmly established”: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; (1986) 60 ALJR 528; (1986) 66 ALR 239; [1986] FLC 91-738; (1986) 10 Fam LR 917; CLR at 352 per Mason J; SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [22] per Flick J;
(c)apprehended bias in the context of an administrative decision-making is not attended with the restrictions that apply to a case of judicial pre-judgment: Jia Legeng at [179]-[187] per Hayne J and [244]-[245] per Callinan J. In NADH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at [19] per Allsop J, the Federal Court observed in this regard that:
The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.
Ground 1, as particularised, relies upon what was said by the Authority in the Authority Decision as the basis for the alleged apprehended bias.
DXB19 submits that the Authority’s finding at CB 296 at [11] that it was “satisfied that Kurram … is the area to which he [DXB19] would return” is indicative of bias because it precedes any consideration of DXB19’s actual claims, and indicates that the Authority “may not have approached his task with an open mind”: particular 1.5.4 (where DXB19 erroneously refers to the “delegate” not having an open mind).
The Authority made the finding that DXB19 would return to Kurram as part of identifying the claims made by DXB19 as to his identity, nationality, ethnicity and religion, in the course of which it was necessary to identify where DXB19 had lived. The Authority also had to determine, in order to consider the remaining claims of risk of serious and significant harm, where it would be that DXB19 might return to in Pakistan, noting that the Delegate had determined that because of the risk of harm there he could not return to Kurram. The Authority in determining this question had regard to relevant factors, and in particular, DXB19’s birthplace (in Kurram) and that he “resided for most of his life” in Kurram, prior to travelling to Australia: CB 296 at [11]. So not only was there a reason for the Authority to make the finding, there was an evident and intelligible basis for that finding. Further, and in any event, there is nothing in this finding, which the fair-minded lay observer might think to be self-evident, which would indicate that the Authority was not otherwise open to persuasion as to DXB19’s protection claims.
The particulars as to ground 1 dealing with the death of DXB19’s father, a Malik, and the authenticity of documents challenge the Authority’s finding that the FIR is not genuine, describing it as “extraordinary”. For reasons set out at [22]-[24] above (and see too [26]-[28] above) there was a basis on the evidence and in the country information for a finding that the FIR was not genuine (and did not contain truthful information). It follows that this is not a basis for a claim of apprehended bias.
The particulars to ground 1 also take issue with the Authority for criticizing DXB19 for not producing other documents as to the cause of death of his father, a Malik, “whilst the reviewer holds the view that fraudulent documents are easily obtained in Pakistan”. It is apt to repeat the Court’s finding at [26] above:
The Authority did not however make the finding of fact alleged in ground 3 “that fraudulent FIR’s [sic] are easily available in Pakistan”. Rather it found as a fact that the FIR was not a genuine document and did not contain truthful information: CB 298-299 at [18]. That the FIR was not a genuine document was a conclusion open to the Authority for the reasons set out at [22]-[23] above.
In this respect, the claim of apprehended bias here therefore proceeds upon a false premise, and is not made out.
DXB19 also suggests that bias arises because he provided a “valid explanation” for his inability to obtain other documents in relation to the manner or cause of his father’s death in that “his mother is uneducated and by herself”. In that regard it is relevant to note that the Authority specifically set out DXB19’s submission to this effect and found that “this does not convince me she could not similarly obtain community support to retrieve a copy of her husband’s death certificate”: CB 297-298 at [15]. Community support from the proprietors of a Shia run hotel in Peshawar had been obtained to provide the FIR: CB 297-298 at [15]. Moreover, the Authority was not required to uncritically accept all or any of the claims made by DXB19 or have rebutting evidence before it could decide not to accept DXB19’s’s claims: Guo, CLR at 596 per Kirby J; Randhawa, FCR at 451 per Beaumont J; Selvadurai at 348 per Heerey J; EGU17 at [36]-[37] per Judge Given. There is nothing in these facts which is indicative of apprehended bias on the part of the Authority.
In relation to the period in which DXB19 was a student in Peshawar and threats were allegedly made against him bias is alleged on the basis of particulars which allege that the Authority rejected DXB19’s account of certain events (Particulars 1.71, 1.7.2 and 1.7.4), did “not put sufficient weight” on certain evidence (Particular 1.7.3) or “fails to account” for certain matters whilst drawing adverse inferences against DXB19. This aspect of ground 1 is little more than a rerun of grounds 4 and 5 and are to be rejected for the same reasons as set out at [34]-[44] and [49]-[54] above. Further, under the guise of bias, this aspect of ground 1 essentially seeks impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no basis for a finding of apprehended bias in relation to the Authority’s assessment of the alleged threats made against DXB19 whilst he was in Peshawar.
In relation to the targeting of Maliks, such as DXB19’s father and DXB19 if he were to return to Pakistan, it is alleged that bias is apprehended because the Authority made a finding, that DXB19’s father and his family were not, and there was not a real chance that they would be, targeted by the Taliban. The Authority’s finding was based on the evidence, including country information, the Authority finding at CB 302 at [29] that:
… the more recent reporting including by DFAT in 2016 and 2019, does not suggest that Maliks have been targeted in recent years. Even if the applicant were to assume the role of Malik in the reasonably foreseeable future, the weight of the evidence does not support that Maliks are being targeted in Kurram. There is also no compelling evidence before me to suggest that in recent times sons of Maliks have been targeted for that reason…
Once again, under the guise of bias, this aspect of ground 1 essentially seeks impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. There is no basis for a finding of apprehended bias in relation to the Authority’s assessment of the targeting of Maliks, particularly as it relates to DXB19 and his family.
Finally, the particulars to ground 1 take issue with the Authority’s assessment of whether there was a real chance of serious harm to DXB19 in Khyber Pakhtunkhwa. DXB19 sets out the finding in the Delegate’s Decision concerning whether DXB19 could return to the Kurram and certain findings from the 2019 DFAT Report as to the risk of violence, particularly for Shias, in the former FATA, including Kurram, to assert that a fair-minded lay observer might reasonably apprehend that the Authority did not bring an impartial mind to the resolution of the matter.
In arriving at its conclusion at CB 306 at [41] that “I am not satisfied that he [DXB19] would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District”, the Authority observed that it had regard to “the overall evidence including the improving broader security situation and declining levels of sectarian violence across Pakistan taken together with the applicant’s history, profile, and experiences”. In that regard it is evident that the Authority dealt with:
(a)the security situation and levels of sectarian violence, particularly in Kurram, observing, against a background of “levels of violence and sectarian violence in Pakistan” which “have been consistently declining: CB 302-303 at [31], and that:
(i)at CB 303 at [33]:
Regarding the former FATA and Kurram, the country information indicates that overall, the security conditions have also significantly improved in recent years. DFAT and information it referred to from the FATA Annual Security Report 2016 indicated relatively few sectarian or other militant attacks in Kurram in 2014 or the first half of 2015. In 2016, DFAT assessed that there was a low level of sectarian violence overall in the FATA, and a low level of generalised violence in Kurram…
(ii)there had been three large scale attacks on Shias in Parachinar in the first half of 2017, but that there had “been no further attacks on Shias reported in Parachinar or further major attacks in Kurram, for over two years”: CB 303 at [33];
(iii)at CB 304 at [35] noted DFAT information concerning:
(A)a trend of decreased reports of attacks against Turis in 2018; and
(B)“a low risk of sectarian violence” against Shias in the former FATA; and
(iv)information concerning attacks against Shias on the roads in and around Kurram from 2008 until 2014 and in 2015, and the subsequent decline in such attacks, and that there were significantly fewer attacks on the roads against Turis in 2018: CB 304-305 at [37].
(b)DXB19’s history, profile, and experiences, including:
(i)his nationality, ethnicity, religion and places of residence: CB 296-297 at [10]-[12];[
(ii)his father’s status as a Malik, the circumstances of his father’s death, and the targeting of Maliks: CB 297-299 at [14]-[18] and 302 at [29];
(iii)DXB19’s period as a student in Peshawar, and his return to the Kurram thereafter: CB 299-301 at [19]-[26];
(iv)his experiences after he returned home after his time in Peshawar, and his establishment of a clothing ship in the Parachinar bazaar: CB 301-302 at [27]-[28]; and
(v)that he would be returning to Pakistan as a returnee from a Western country: CB 306 at [40].
As set out above: see [70]-[71] above, the fact that the Authority differed in its ultimate finding from the Delegate as to the risk of harm on Kurram is not indicative of error by the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J; DBE16 at [59] per Barker J (and the cases following DBE16 cited at [71] above). Nor is it indicative of apprehended bias. The Authority undertook a fresh analysis of the evidence (including the country information) and an assessment of the evidence “overall”: CB 306 at [41], and concluded that there was not a risk of serious harm to DXB19 if he were to return to Kurram. That was the Authority’s task, and a fair-minded lay observer, understanding the Authority’s function under Pt 7AA, would not consider the Authority Decision to be affected by apprehended bias in relation to its findings concerning Kurram. This aspect of ground 1 is therefore not made out.
The Court has also considered ground 1 as a cumulative whole, and not just in relation to its individual particulars. Considered cumulatively there is nothing further which suggest that the Authority Decision is affected by apprehended bias in that it failed to bring an impartial and unprejudiced mind to the resolution of the questions at hand. The Authority understood its task, making a fresh assessment of the evidence and material before it, in an orthodox and unbiased manner.
It follows that ground 1 of the Amended Judicial Review Application is not made out and does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that DXB19 has failed to establish jurisdictional error in the Authority Decision. It follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 April 2025
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