DXC19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 512
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXC19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 512
File number(s): ADG 362 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 – whether finding of fact based on unwarranted assumptions – whether wrong question asked as to whether individually targeted rather than being targeted as part of a particular social group – whether decision illogical or legally unreasonable because of failure to take into account relevant considerations – whether decision affected by apprehended bias – whether jurisdictional error. Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 5J, 36, 473CB, 473DA, 473DD, 474, 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; (2019) 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
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
EVI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 518
FCS17 v Minister for Home Affairs [2020] FCAFC 68
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
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 74 ALJR 1380; (2000) 174 ALR 655
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; (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 & 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 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; 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 115 ALD 303
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) [2001] 1AC 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; 206 CLR 128; (2001) 75 ALJR 848; (2001) 179 ALR 296; (2001) 65 ALD 321
SCAA v Minister for Immigration [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
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: 83 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 362 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXC19
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 on 9 October 2019, as amended by an Amended Originating Application filed on 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
By an amended application for judicial review filed 16 April 2024 (“Amended Judicial Review Application”) the applicant, DXC19, seeks judicial review of a decision of the Immigration Assessment Authority dated 17 September 2019 (“Authority Decision” and “Authority” respectively). The Authority Decision was to affirm an earlier decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the now Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) not to grant DXC19 a Safe Haven Enterprise visa (“SHE Visa”). The Amended Judicial Review Application seeks review pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”).
At hearing the Court Book (“CB”) was marked as Exhibit 1. Post-hearing, on 1 May 2024, a copy of the Australian Department of Foreign Affairs and Trade (“DFAT”) Country Information Report dated 20 February 2019 (“2019 DFAT Report”) was admitted into evidence by consent of the parties and by order of the Court, and marked as Exhibit 2.
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
FACTUAL BACKGROUND AND PROTECTION CLAIMS
The factual background to the matter is as follows:
(a)DXC19 is a national of Pakistan: CB 11, who arrived in Australia as an unauthorised maritime arrival on 28 September 2012: CB 37;
(b)DXC19 identifies as a Shia Muslim from Parachinar in the Kurram District (“Kurram”) of Pakistan, of Pashtun ethnicity and from the Turi tribe: CB 27 and 211;
(c)DXC19 participated in an arrival interview on 8 October 2012 and an entry interview on 28 November 2012;
(d)DXC19 applied for a Protection (Subclass 866) visa on or around 30 October 2013, but this application was invalid, as he was barred from applying for a Protection visa as an unauthorised maritime arrival: CB 110;
(e)on 9 October 2015 DXC19 was invited to apply for a Temporary Protection (subclass 785) visa or a SHE Visa: CB 110;
(f)on 12 July 2016 DXC19 lodged an application for a SHE Visa: CB 117;
(g)on 13 March 2019 DXC19 provided a statutory declaration, a copy of a New York Times article and a certified copy of DXC19’s National ID card;
(h)on 14 March 2019 DXC19 attended an interview with the Delegate: CB 221;
(i)on 12 August 2019 the Delegate’s Decision was to refuse to grant DXC19 the SHE Visa: CB 241-253. In brief terms, the Delegate found that:
(i)DXC19 faced a real chance of serious harm in Parachinar/Kurram if he were to be returned on account of his Turi ethnicity and Shia religion: CB 248; and
(ii)there would be no such risk of serious harm for DXC19 in Lahore or Islamabad: CB 149-250; and
(j)on 16 August 2019 the Authority advised DXC19 that his matter had been referred to it: CB 258.
DXC19’s protection claims were as follows:
(a)DXC19 claimed to fear harm from the Taliban, Sunni extremists and other militant groups in Pakistan because of his Shia religion: CB 210-211;
(b)DXC19 claimed his difficulties with the Taliban started in 2007: CB 70;
(c)in 2010 he moved to Peshawar to continue his education and lived in a Shia occupied flat: CB 70;
(d)while in Peshawar DXC19 claimed he received a number of threatening letters and threatening phone calls: CB 71. He claimed he knew of other people who had been abducted and a Shia person who had been killed;
(e)in May 2012 DXC19 claimed he returned to Parachinar and in June 2012 he departed Pakistan: CB 72;
(f)DXC19 claimed that nowhere in Pakistan was safe for him because his name, accent, appearance and religion made him recognisable as a Shia Muslim from Parachinar: CB 72; and
(g)DXC19 also claimed to fear harm on the basis of his political opinion because he will be imputed with opposition to the Taliban as a member of the Turi tribe: CB 277.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to material given to it under s 473CB;
(b)did not consider new information provided by DXC19 which did not meet s 473DD, namely country information which did not comply with the Authority’s Practice Direction, new claims relating to passports, and a decision of the Administrative Appeals Tribunal dated a year before the Delegate’s Decision: CB 300-301 at [5]-[10];
(c)accepted DXC19’s ethnicity and much of his background: CB 303-304 at [18]-[20];
(d)found that DXC19 had embellished the circumstances he faced during his time in Peshawar and was not satisfied that DXC19 “would face harassment or resentment or that which would be directed individually towards him, or as a Shia Turi, in Kurram in the reasonably foreseeable future”: CB 306 at [26];
(e)did not accept that DXC19 was of adverse interest to the Taliban, any other militant group, or had an individual profile with such groups or anyone else: CB 305 at [24] and 307 at [30];
(f)considered whether DXC19 would face harm as a Pashtun and a Turi upon return to Parachinar and considered relevant DFAT reports and found that there was a trend of decreased reports of and attacks against Turis in 2018 and due to the improved security situation in Parachinar and Kurram that trend was likely to continue in 2019: CB 308 at [32];
(g)taking relevant country information into account, concluded that the material pointed against DXC19 facing a real chance of any harm in the reasonably foreseeable future by reason of his being a Turi: CB 308-309 at [32]-[33];
(h)while not raised as a claim or on the material, was not satisfied that DXC19 would face harm from Pakistani authorities in connection with his seeking asylum or returning from a western country: CB 310 at [35];
(i)concluded that DXC19 did not face a real chance of persecution in Pakistan and did not satisfy s 36(2)(a), and for similar reasons found that DXC19 did not satisfy the alternative criteria in s 36(2)(aa): CB 310-311 at [36]-[41]; and
(j)affirmed the Delegate’s Decision to refuse to grant DXC19 a SHE Visa: CB 299 and 311.
GROUNDS OF THE AMENDED JUDICIAL REVIEW APPLICATION
There are six grounds in the Amended Judicial Review Application which are set out at [55] (Ground 1), [9] (Ground 2), [9] (Ground 3), [23] (Ground 4), [35] (Ground 5) and [35] (Ground 6) below.
The parties dealt with grounds 2 to 6 before dealing with ground 1, and dealt with some grounds together, and the Court will deal with the grounds in the same manner. DXC19 submitted that if he succeeded on any of grounds 2 to 6 the Court did not need to consider ground 1.
Grounds 2 and 3
Grounds 2 and 3 can be considered together, and are as follows:
Ground-2
2.The second respondent makes a finding of fact which was not supported by the evidence before them, namely, that the applicant was not threatened as a student in Peshawar because, at least in part, the threats were not carried out.
Particulars
2.1The reviewer makes an unwarranted assumption and states that “I am very doubtful that such groups would have afforded multiple opportunities to the applicant or other Shias claimed to have been named in the letters, to escape unharmed, by making several threats that did not come to any fruition for an extensive time.” [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 22].
2.2The reviewer repeats the assumption and states that “I do not consider it plausible that sectarian and/or extremist groups would have identified the applicant by name and religion, and sent him ongoing threat letters to his address, and phone and text messages, without any of the threats coming to fruition for an extended period.” [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 25].
2.3The reviewer, then based on that assumption at least in part, reaches an erroneous conclusion and states that “while I accept he lived in a Shia occupied flat and perhaps even that the flat was a recognised Shia household, in the circumstances, I do not accept as plausible that the authors of the claimed threats were able to identify him personally and obtain his mobile phone number.” [Court Book- p.305 - Decision of the IAA dated 17 September 2019, para 25].
2.4Notwithstanding the fact that applicant gave evidence that he departed Pakistan soon after the threats and because of the threats, the second respondent erroneously concluded that the fact that the threat/s were not carried out was in itself evidence of the threats having not been made.
Ground-3
3.In the alternative to Ground-2, the second respondent makes a finding a fact which based on unwarranted assumptions, namely, that, at least in part, the threats were not carried out, and that the unwarranted error 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 threats being made to the applicant not being carried out, the reviewer reaches an illogical conclusion that threats themselves were not made.
DXC19’s submissions on grounds 2 and 3
In relation to ground 2 DXC19 submitted that:
(a)Ground 2 is pleaded as a traditional “no evidence” ground, where the Authority has no evidence before it to conclude that the threats were not carried out;
(b)the test for a “no evidence” ground is stated in BSE17 v Minister for Home Affairs [2018] FCA 1926 (“BSE17”) at [33] per Moshinsky J and 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)DXC19 submits that there was no evidence before the Authority that the threats to DXC19 were not made in Peshawar when DXC19 was a student;
(d)whilst it was open to the Authority to not accept DXC19’s evidence based on his credit, credibility and reliability as a witness, it was not open to the Authority to reach that conclusion on the basis of unwarranted assumptions to fill the gaps in information available to it; and
(e)it is further relevant that that conclusion by the Authority which is based on no evidence and filled with unwarranted assumptions, also stands in stark contrast to the Delegate’s Decision on the same subject, who had the benefit of interviewing DXC19 and therefore was in a better position to assess DXC19’s credit.
In relation to ground 3, and in the alternative to ground 2, DXC19 submitted that:
(a)the Authority made an unwarranted assumption because there was no evidence of threats made to DXC19 being carried out, that that was evidence that threats themselves were not made;
(b)in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292; (2019) 161 ALD 441 at [36] per Perram, Perry and O’Callaghan JJ the Full Court of the Federal Court said 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:
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)if it was accepted that the property where DXC19 resided in Peshawar was a Shia household and that students attending a co-educational school may have been targeted, it was erroneous of the Authority to base the finding that no threats were made based on no evidence of any of the threats being carried out;
(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 DXC19 claims that exists in the findings as made by the reviewer in this matter;
(g)DXC19 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, where the Federal Court went onto observe at [8] per Perram J 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)DXC19 submits that the finding made by the Authority that no threats were made to DXC19 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 no threats were made to DXC19 because no threat was carried out in Peshawar.
Minister’s submissions on grounds 2 and 3
In relation to grounds 2 and 3 the Minister submitted as follows:
(a)by grounds 2 and 3 DXC19 alleges that the Authority erred by failing to accept his claim to have received a number of threats from extremists while he was in Peshawar, living in a flat which had been occupied by Shia Muslims;
(b)the Authority’s reasons at CB 305-306 at [23]-[26] for rejecting DXC19’s claims concerning the threats in Peshawar while he was undergoing tertiary education were reasonable and devoid of unwarranted assumptions. To elaborate, the Authority:
(i)accepted that, as a Shia Turi in Peshawar, DXC19 may have faced some community harassment: CB 305 at [24];
(ii)did not accept that DXC19 had been targeted as an individual or had an individual profile: CB 305 at [24];
(iii)did not accept that DXC19 would have been identified and threatened for an extended period without any of those threats coming to fruition, in light of evidence that the extremist groups active in the area carried out extremely violent activities during that period: CB 305 at [25];
(iv)accepted that his residence may have been identifiable as a Shia-only residence and that attitudes such as general harassment may have been directed to his residence: CB 306 at [26];
(v)accepted that DXC19 may have heard of or been aware of general harassment or resentment towards Shias (or Shia students): CB 306 at [26]; and
(vi)did not accept that he either currently faced adverse interest from extremist groups or faced a real chance of such interests in the reasonably foreseeable future, particularly as he has not claimed that he would resume studies in Pakistan: CB 306 at [26];
(c)DXC19 submits that “it was erroneous of the … [Authority] to base his finding that no threats were made based on no evidence of any of the threats being carried out”. Read in the context of the Authority’s extensive reasoning about DXC19’s claims to have been threatened by extremists while living in Peshawar, and acceptance of the country information that there had been extreme violence in the region during that period, the Authority’s reasoning process was reasonably open to it;
(d)further, neither the Delegate nor the Authority accepted DXC19’s claim that any extremists made threats to DXC19 while he was in Peshawar. The Delegate accepted that the threats were made, but not by extremists, whereas the Authority was not satisfied that the threats were made at all;
(e)even if DXC19 could demonstrate that reasonable minds could differ in respect of DXC19’s claims to have received threats from extremists while in Peshawar (for example the Delegate and Authority, who reasoned differently to reject this claim), this is insufficient to establish irrationality or illogicality: 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 [78] per Heydon J and [130]-[131] per Crennan and Bell JJ; and
(f)DXC19 concedes that it was open to the Authority to not accept this evidence based on credit or reliability findings.
Consideration of grounds 2 and 3
At CB 305-306 at [23]-[26] the Authority said as follows:
23.The delegate accepted as credible that the applicant received written threats to his apartment and to threats to his own phone, but concluded that these had not come from extremist groups. On the evidence, I have come to a different conclusion.
24.The MEI in 2014 reported that the sectarian war in Kurram had magnified the sectarian conflict in neighbouring areas, where Sunni and Shia Internally Displaced Persons (IDPs) had moved. It stated that Shia Turis in Peshawar had engaged in targeted killings of Sunni Deobandis and that these areas had had sizable Shia populations and a history of sectarian tensions going back decades. Given the heightened sectarian tensions between Sunnis and Shias from 2007 until 2014, I accept that Shia persons (including Shia students) coming from Kurram, generally, may have faced some community harassment, resentment or were made to feel unwelcome, during their stay in Peshawar. While I accept on the basis of earlier outlined evidence, that as a Turi Shia from Parachinar, and due to the history of denial of passage by his Turi community to the Taliban, the applicant may be seen to be against extremist groups such as the Taliban, for the following reasons, I do not accept he has been targeted as an individual or has an individual profile with such groups or anybody else.
25.I do not consider it plausible that sectarian and/or extremist groups would have identified the applicant by name and religion, and sent him ongoing threat letters to his address, and phone and text messages, without any of the threats coming to fruition for an extended period. Even taking into account the applicant’s claims that he remained mostly at home, there is no plausible explanation for why such groups, that the country information indicates carried out extremely violent activities during that period and were at that time, capable of doing so, could not have carried out their threats, with all the information they apparently had about him. While I accept he lived in a Shia occupied flat and perhaps even that the flat was a recognised Shia household, in the circumstances, I do not accept as plausible that the authors of the claimed threats were able to identify him personally and obtain his mobile phone number. He said his mobile number could have been retained during his interactions with shop keepers as recharging required that he provide the number and that there were not many Shia shops in that area but there appears to be little basis for this. He did not suggest he faced issues doing business with these shop owners or sought to recharge his phone at Shia shops, even if there were not many in the area as claimed. I also note that he has not provided any copy of any of the alleged multiple threat letters or other supporting evidence.
26.I am not satisfied that the applicant came to any individual adverse interest to extremist groups or anybody else. I am satisfied he has embellished the circumstances he faced at that time. I accept he may have heard of or been aware of general harassment or resentment towards Shias (or Shia students) from Kurram in Peshawar, during this time period. I also accept that such attitudes may at one point, have been directed towards his Shia-only residence, given the evidence that it had been Shia occupied over an extended period of time, and that he would have heard about this. I consider there is no credible evidence, that the applicant did have or currently has any individual profile of adverse interest to extremist groups or even anybody else, in Pakistan. Nor do I consider he would face a real chance of such interest in the reasonably foreseeable future. I note that the circumstances in the area to which he would return also differ to those that some members of his community may have faced in Peshawar during 2011. He has not claimed he would resume any studies in Pakistan in the reasonably foreseeable future. The weight of the evidence before me and as explained further below, does not support that he would face harassment or resentment or that which would be directed individually towards him, or as a Shia Turi, in Kurram in the reasonably foreseeable future.
Ground 2 is, as DXC19 submits, a traditional no evidence ground.
In order to succeed on a no evidence ground, DXC19 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 (“SGLB”) 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 findings as follows:
(a)the circumstances described by DXC19, and the country information, did not support that DXC19 was directly threatened or targeted by militant extremists, or anybody else, whilst he was in Peshawar: CB 304 at [21];
(b)the alleged threats were “never realised”: CB 305 at [22];
(c)that DXC19 did not have a profile with extremist groups such as the Taliban: CB 305 at [24];
(d)that no threat had been carried out in circumstances where there was a contemporaneous history of militant extremists carrying out extremely violent activities during the period DXC19 was in Peshawar as a student: CB 305-306 at [25]; and
(e)the “alleged multiple threat letters or other supporting evidence” in relation to the alleged threats was never produced: CB 305-306 at [25].
There was therefore sufficient evidence and material, including DXC19’s own evidence and profile, country information, the absence of the execution of a threat against DXC19, and the absence of the alleged threat letters or other supporting evidence, from which the Authority might reasonably infer that the alleged threats were in fact not made: SGLB at [41] per Gummow and Hayne JJ (with whom Gleeson CJ at [1] and [21] agreed).
The Court is therefore not satisfied that there was no evidence to support the finding that the alleged threats were not made. Ground 2 is not made out.
Ground 3 asserts that the Authority made an unwarranted assumption that because the threats were not carried that the threats were not made, and that this conclusion was in error because it was illogical.
In circumstances where the evidence and material before the Authority was as set out at [16]-[17] above, and:
(a)the Authority was not required to uncritically accept all or any of the claims made by DXC19, or have rebutting evidence before it could decide not to accept DXC19’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);
(b)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;
(c)the weight to be given to DXC19’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;
(d)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; CXS18 v Minister for Home Affairs [2020] FCAFC 18 (“CXS18”) at [37] per McKerracher, White and Colvin JJ; and
(e)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,
it follows that there was nothing illogical in the Authority determining that the alleged threats were not made, and nor was there an unwarrantable assumption made, because on the evidence there was an evident or intelligible justification for the Authority’s conclusion: SZMDS at [135] per Crennan and Bell JJ; 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.
GROUND 4
Ground 4 is as follows:
4.The second respondent erred by asking the wrong question, namely, that if the applicant was individually targeted instead of being targeted as part of a particular social group, thereby, consequently making the wrong decision.
Particulars
4.1 The reviewer, where suitable to their conclusion, applies the test that there was no evidence of the applicant being “individually targeted.’ [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 26] or having an “individual adverse profile.” [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 30].
4.2 Respectfully, that is not the appropriate test.
4.3The correct test is whether the applicant belonged to a class of persons 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.
4.4There is no requirement for the applicant to have been “individually targeted” or have an “individual adverse profile.”
4.5The 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.
4.6The reviewer accepts that the applicant was present when a bombing occurs in 2007, a bombing occurs in 2008. eight people are killed and 45 people kidnapped in the convoy in which the applicant was traveling in 2011 but rejects the applicant's evidence that he received direct threats because of his religion in 2011 and 2012 without basis. It is then based on those rejections, the reviewer goes on to form the view that the applicant did not have an “individually adverse profile,” again whilst accepting that such harassment occurred between 2007 and 2014, [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 24] where there is no evidence to suggest that such harassment did stop at a specific time.
DXC19’s submissions on ground 4
DXC19’s submissions on ground 4 are as follows:
(a)the Authority erred by asking the wrong question which is whether DXC19 was “individually targeted” or had an “individual adverse profile”;
(b)DXC19 submits that the correct test is if he 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 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)DXC19 submits that he was a member of such a particular social group – namely a Shia Turi, and as such, the correct question the reviewer ought to have asked is if a Shia Turi group in Peshawar could have been targeting by Sunnis, and if so, did DXC19 form part of such a group.
Minister’s submissions on ground 4
The Ministers submissions on ground 4 are as follows:
(a)contrary to the DXC19’s submissions the Authority did find that DXC19 was identifiable as a member of a particular social group, namely a Shia Turi Pashtun from Parachinar: CB 303 at [14];
(b)what DXC19 cavils with is the Authority making further investigations into his profile and individual circumstances in the course of it assessing his risk of harm;
(c)after identifying DXC19 as a member of this particular social group, namely a Shia Turi Pashtun, the Authority considered further features specific to DXC19’s circumstances to assess whether he had a real risk of serious harm owing to his membership of the social group. Relevantly, the Authority:
(i)accepted that DXC19 has a distinctive Turi accent: CB 303 at [16];
(ii)did not accept that DXC19 would be identifiable solely on appearance: CB 303 at [16];
(iii)accepted that when DXC19 lived in Peshawar in the Shia household, he might have been identifiable as a Shia Muslim: CB 306 at [26]; and
(iv)found that DXC19 had no greater profile of adverse interest to extremists other than as a Shia Turi student: CB 305-306 at [22], [24] and [26]; and
(d)owing to these circumstances, various credibility issues, and independent country information which detailed that the security situation for Shia Turis in Kurram had improved and was continuing to improve, the Authority found that it was “not satisfied that he would, in the reasonably foreseeable future, face a real chance of any harm in Parachinar, Kurram”: CB 310 at [36]. In so reasoning, the Authority clearly had in mind that DXC19 was a Shia Turi Pashtun from Parachinar.
Consideration of ground 4
Ground 4 alleges that the Authority focussed inappropriately on whether DXC19 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 DXC19 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 [24(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 DXC19) “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 DXC19, 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: 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; SZMDS at [35] per Gummow ACJ and Kiefel J.
The Authority:
(a)accepted that DXC19 was “of Pashtun ethnicity, a member of the Turi tribe … and a practising Shia Muslim”: CB 303 at [14];
(b)said it was “satisfied” that DXC19 “may be identifiable as a Shia Turi Pashtun from Parachinar”: CB 303 at [16];
(c)cited country information that DXC19 had a permanent address in Upper Kurram and that this was “a majority Shia area” and that Turis were “the dominant tribe there”: CB 303 at [16];
(d)accepted that DXC19 has a distinctive Turi accent: CB 303 at [16];
(e)accepted that DXC19 may be “readily identifiable as a Shia” if he participated in certain religious and prayer activities: CB 303 at [16];
(f)did not accept that DXC19 would be identifiable solely on appearance: CB 303 at [16]; and
(g)accepted that DXC19 was “a Turi Shia from Parachinar: CB 305 at [24] and a “Shia Turi”: CB 306 at [26].
There is no question therefore that the Authority identified DXC19 as a Shia Turi, and although it did not make an express finding to this effect, it can be inferred that it accepted that DXC19 was a member of a particular social group, namely Shia Turis.
In determining whether there was a real chance that DXC19 would be persecuted if returned to Pakistan the Authority then took into consideration numerous matters, including the following:
(a)the attack in March 2011 by the Taliban on a “government/paramilitary escorted convoy” of minibuses which was travelling from Peshawar to Parachinar, and in one of which DXC19 was travelling, and in which “most passengers were said to be Shia”: CB 304 at [20];
(b)country information that “extremist groups directly targeted Shias” at the time DXC19 was in Peshawar, and the fact that if these groups had DXC19’s details the failure of the alleged threats to “come to any fruition for an extensive time” was “particularly at odds” with the direct targeting of Shias: CB 305 at [22] and 305-306 at [25];
(c)country information 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 particularly prominent profile: CB 305 at [22];
(d)the history of sectarian violence in Kurram between Sunnis and Shia, and the heightened sectarian tensions between 2007 and 2014, which it considered may have led to community harassment of Shia students in Peshawar: CB 305 at [24];
(e)DXC19 being seen as being “against extremist groups such as the Taliban” because of the history of denial of passage to the Taliban by the Turis in Kurram: CB 305 at [24];
(f)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 307-308 at [31];
(g)noted recent measures taken to “foolproof” the safeguarding of Shias involved in religious processions: CB 307-308 at [31];
(h)at CB 308 at [32] 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 Federally Administered Tribal Areas (“FATA”); and
(i)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 309 at [33].
Having regard to the Authority Decision as a whole, and in particular the matters set out at [30] and [32] above, the Court has not doubt that the Authority recognised that DXC19 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 DXC19 would be persecuted because of his membership of that particular social group.
It follows that ground 4 is not made out and does not establish jurisdictional error in the Authority Decision.
GROUNDS 5 AND 6
Grounds 5 and 6 are as follows:
Ground-5
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
5.1For reasons states in paragraph 1, it is submitted that the decision by the reviewer is illogical and/or legally unreasonable.
5.2Specifically, the fact that the reviewer failed to take into account the DFAT statement in paragraph 3.23 which concludes that “Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services. and would likely be forced to sell assets.”
5.3 The reviewer's decision stands in direct contradiction to that evidence.
5.4The reviewer further failed to take into account the financial impact of the applicant attempting to move back into that area, noting that Turis are likely to be forced to sell assets when moving back to that area.
Ground-6
6.The second respondent erred by not taking relevant considerations into account, namely, the nature of persecution faced by the applicant outside of Parachinar.
Particulars
6.1The reviewer states that: [Court Book - p.305 - Decision of the IAA dated 17 September 2019, para 27.]
“While the delegate ultimately concluded that the applicant had a well-founded fear of persecution in Kurram, I have come to a different conclusion. I have had regard to the applicant's oral and written evidence in support of his claim that he faces a real chance of persecution in Kurram - an issue that was discussed in detail at the primary stage. I accept that Turis in Kurram faced a period of significant violence from 2007 until 2014. Country information however indicates that the situation has changed and continues to improve.”
6.2In doing so, the reviewer fails to consider the risk faced by the applicant in other areas of Pakistan.
6.3If DFAT conclusion is accepted as stated in paragraph 3.23 that “Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats. do not have adequate access to services, and would likely be forced to sell assets,” the reviewer had an obligation to assess the viability of the applicant to return to another part of Pakistan.
6.4 The reviewer failed to do so.
DXC19’s submissions on grounds 5 and 6
DXC19’s submissions on grounds 5 and 6 are as follows:
(a)ground 5 speaks for itself; and
(b)DXC19 submits that the reviewer, in contradiction to the Minister and the 2019 DFAT Report, concludes that DXC19 does not face a risk of serious harm, whereby he may be returned to Kurram, Khyber Pakhtunkhwa;
(c)ground 6 speaks for itself; and
(d)DXC19 submits that the reviewer, in contradiction to the Minister and the 2019 DFAT Report, concludes that DXC19 does not face a risk of serious harm, whereby he may be returned to Kurram, Khyber Pakhtunkhwa.
Minister’s submissions on grounds 5 and 6
In relation to grounds 5 and 6 the Minister submitted as follows:
(a)grounds 5 and 6 repeat a claim that the Authority erred by finding that DXC19 would not face a real risk of serious harm, if he were returned to Kurram in the Khyber Pakhtunkhwa province;
(b)the Authority, contrary to the Delegate, found that DXC19 would not face a real risk of serious harm if he returned to the same part of Pakistan, namely Kurram, where he was originally from;
(c)the mere fact that the Authority made factual findings, including findings based on independent country information that differed from the Delegate, does not mean that the Authority fell into jurisdictional error: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 (“DBE16”) at [59] per Barker J. As the Full Court of the Federal Court observed in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [70]-[72] per Reeves, Robertson and Rangiah JJ, the Authority is not required “to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate”;
(d)this is not a case where the Authority made factual findings about an issue which was not in issue before the Delegate: Minister for Immigration v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 where the possibility of relocation was not in issue before the Delegate, but the Authority made findings about the possibility of relocation. The Authority simply disagreed with the Delegate on some limited issues, and this was a course open to it. Further, DXC19 was represented and made submissions to the Authority, which were taken into account: CB 274-282 and CB 300 at [4] (and see particularly DXC19’s submissions to the Authority on the threat of harm in Kurram and then on relocation at CB 278-281); and
(e)grounds 5 and 6 fail to reveal any jurisdictional error in the Authority’s finding that DXC19 would not face a real risk of serious harm if he were returned to Kurram in the Khyber Pakhtunkhwa province.
Consideration of grounds 5 and 6
In relation to illogicality and unreasonableness 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.
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.
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 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; Minister for Immigration & 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, and that the weight to be given to an applicant’s claims and the evidence (including country information) 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; 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: 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;
(d)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]…
DXC19 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 DXC19, or have rebutting evidence before it could decide not to accept DXC19’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.
In relation to failing to take into account a relevant consideration 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.
Both grounds 5 and 6 take issue with the Authority’s finding that DXC19 would not face a real risk of serious harm if he were returned to Kurram, which is in the Khyber Pakhtunkhwa province, and also that the Authority reached a finding different to that of the Delegate in this regard, and different to that expressed in the 2019 DFAT Report.
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: WAEE at [46] per French, Sackville and Hely JJ. While the Court can infer a failure to consider a claim if the Authority did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Authority Decision as a whole: 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, and such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ, and see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ. Thus, the allegation that the Authority failed to take into account a single paragraph, [3.23], in the 2019 DFAT Report which suggested that Turis could not return to Khyber Pakhtunkhwa must be assessed against the Authority Decision as a whole.
The Authority referred extensively to country information from DFAT, including in relation to:
(a)whether DCX19 was identifiable as a Shia Turi: CB 303 at [16];
(b)violence against Turis in the former FATA from 2008 to 2014: CB 303 at [17];
(c)relocation of Shias from the former FATA to Peshawar: CB 304 at [19];
(d)action taken by the Pakistani Government to address terrorism and sectarian and other violence against Pakistan, observing at CB 306-307 at [28] that:
DFAT indicates the Pakistani government’s strong stance and actions taken towards combatting terrorism activities in Pakistan, particularly since 2014 and including measures taken in and around Parachinar and Kurram, as well as the positive results of these measures. DFAT notes that since 2014, the Pakistan government has taken significant measures to address the sectarian and other violence across Pakistan. Operation Zarb-e-Azb (and its successor Operation Radd-ul-Fasaad) targeted terrorist groups including the TTP in former FATA and in Khyber Pakhtunkhwa (KP) which the former FATA (including Parachinar) now falls under. Additionally, Operation Khyber-IV targeted Islamic State in Iraq and the Levant (ISIL) connections across the Afghanistan border. Observers have credited these measures and also the National Action Plan (NAP) of 2014 with a significant reduction in the number of violent and terrorism related attacks in Pakistan.
These matters are referred to in the 2019 DFAT Report at [2.75], [2.77] and [3.16];
(e)the “overall levels of violence and sectarian violence in Pakistan”: CB 307 at [21], observing in the same paragraph that:
The overall levels of violence and sectarian violence in Pakistan have been consistently declining, even prior to these additional measures implemented since 2014. DFAT reported that in 2018, there was a 29 per cent decline in the number of reported terrorist attacks across Pakistan, compared to a 16 per cent decline in 2017 and that this marked a nine-year downward trend. KP, including former FATA reported the highest number of terrorist attacks and lowest number of decreased attacks in Pakistan for 2018, although this needs to be viewed against a declining number of attacks overall and the sizeable KP and former FATA populations (over 30 million and over four million respectively). From 2017 to 2018, terrorist attacks in KP also fell and the number of persons killed and injured fell significantly compared to 2017. Local observers including officials in KP recently reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar in KP similarly reported an increased sense of security in the evenings due to the enhanced military presence.
These matters are referred to in the 2019 DFAT Report at [2.67]-[2.69] and [2.79];
(f)the frequency of sectarian attacks in Pakistan, observing at CB 307 at [29] that:
In 2019 DFAT also reported that the frequency of sectarian attacks had reduced annually since the launch of Zarb-e-Azb and the NAP in 2014. The figures reported by the SATP to which DFAT makes reference are significant. While there were 131 incidents of sectarian violence in Pakistan in 2013, there were just 16 in 2017 and according to DFAT a further decline to 12 such incidences in Pakistan in 2018. There was a 40 per cent reduction in sectarian violence in 2018 compared to 2017.
These matters are referred to in the 2019 DFAT Report at [2.70] and [2.77]-[2.79];
(g)the reporting of violence by journalists in Pakistan, including possible limitations on targeted attacks against Shias in Parachinar: CB 307 at [30] (referred to in the 2019 DFAT Report at [3.171]);
(h)the “relatively few” sectarian or other militant attacks in Kurram in 2014 and the first half of 2015: CB 307-308 at [31];
(i)sectarian violence in the former FATA, Kurram and Parachinar, observing at CB 307-308 at [31] that:
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. In the first half of 2017, DFAT did report three large scale attacks against Shias in Parachinar, which killed over 120 people, the last on 24 June 2017. Since June 2017 however, there have been no further attacks on Shias reported in Parachinar or further major attacks in Kurram, for over two years, although DFAT states that the Turi community reported two attacks, one involving an IED that targeted women and children, in the first quarter of 2018. DFAT gave no further detail on the circumstances, location and motives of the reported incidences. DFAT also referred to SATP reporting that between January and May 2018 there were no incidents of sectarian violence in the former FATA. This suggests that the incidences reported to DFAT by the Turi community were not of a sectarian nature. In 2019, DFAT indicated continuing security measures and tighter border controls including specifically around the applicant’s area. Namely, a 20 to 30 square kilometre area red zone for Parachinar and a second, smaller red zone inside the outer red zone secured by the military who have issued cards to access these zones. By February 2018, the Turi community estimated 40 per cent of military fencing in Kurram was complete, decreasing border permeability. Country reports before me, including from The International News and Dawn from 2017 and 2018 further indicate that during those two years, a large number of Ashura processions country wide, including in Parachinar, and across KP, were observed peacefully. The same reports suggest ‘foolproof’ measures taken by the authorities to safeguard Shias, including the deployment of thousands of military, paramilitary and police forces, the suspension of mobile phone services in major cities, and the monitoring of those processions through the use of drone cameras.
These matters are referred to in the 2019 DFAT Report at [3.15], [3.18] and [3.110];
(j)attacks and violence against Shia Turis, including in the former FATA and around Parachinar, observing at CB 308 at [32] that:
DFAT also indicates a trend of decreased reports of attacks against Turis in 2018. In 2019 DFAT assesses that overall most Shia in Pakistan face a low risk of sectarian violence though the risk varies depending on geographic location and for specific groups. Similar to its 2016 reporting, in 2019 DFAT assesses that Shias in former FATA face a low risk of sectarian violence, but within the context of a moderate level of militant and criminal violence across the region. However, despite the reported broader criminal and other violence across KP, the evidence does not suggest that these broader conditions, have affected the significant improvements consistently seen in recent years and around Parachinar. The evidence also indicates ongoing military efforts to maintain the security conditions in this area. DFAT also assesses that attacks and violence against Turis could and may still occur and that Turis in Kurram in particular still face a moderate risk of sectarian violence. ‘Moderate risk’ is defined as DFAT being aware of sufficient incidents to suggest a pattern of behaviour although since 2017, DFAT has not reported specific incidences targeting Shia Turis in Parachinar. The trends outlined by DFAT in its most recent report and the other material before me, do not point to, any pattern of incidences since 2017, or to a real chance of harm in the reasonably foreseeable future. As outlined, various news articles also indicate that during 2017 and 2018, Shia Ashura processions were observed peacefully country wide, including in Parachinar. There is very little detail on the circumstances surrounding the two incidences reported by Turis to DFAT as having occurred in the first quarter of 2018. It has also now been over six months since DFAT’s assessment, with no indication in the material before me, that in the interim, these overall peaceful conditions in Parachinar and Kurram have deteriorated. DFAT also indicates that the trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram is likely to continue in 2019. This, along with the very few reported incidences in 2018, taken together with the lack of evidence to indicate those incidences were targeted or sectarian in nature, and the overall evidence as outlined, points against the applicant facing a real chance of any harm in the reasonably foreseeable future.
These matters are referred to in the 2019 DFAT Report at [3.18], [3.26] and [3.111];
(k)restrictions on freedom of movement, and the use of and security incidents on roads, in particular the Thal-Parachinar road: CB 309 at [33] (these matters are referred to in the 2019 DFAT Report at [3.16] and [3.17]); and
(l)Pashtun ethnicity, security and levels of societal discrimination: CB 309 at [34].
The Court also notes that the 2019 DFAT Report was not the only country information to which the Authority had resort. Other relevant country information included:
(a)information from the South Asia Terrorism Portal, The National (a UAE publication), the New York Times, and The Herald (a Pakistani publication), in the period from 2011 to 2016 which indicated that it was particular, and usually high profile, persons who were targeted by militants, and not persons such as DXC19: CB 305 at [22];
(b)the Middle East Institute’s 2014 report in relation to sectarian violence in Parachinar and Kurram: CB 303 at [17] and 305 at [24];
(c)information from Dawn, a Pakistani media outlet concerning the attack on the minibus convoy on the road between Peshawar and Parachinar in March 2011: CB 304 at [20]; and
(d)the FATA Annual Security Report 2016 (referred to by DFAT) in relation to sectarian and other militant attacks in Kurram in 2014 and the first half of 2015: CB 307-308 at [31].
Consistent with its task under Pt 7AA the Authority analysed the evidence (including the country information) and on an assessment of the evidence “overall”: CB 310 at [36], concluded that there was not a real chance of any harm to DXC19 if he were to return to Kurram, or when undertaking any necessary travel.
What is evident from the Authority’s referral to DFAT material, and the Court’s referencing of the paragraphs of the 2019 DFAT Report relevant to the DFAT material referred to, is that the Authority obviously had extensive regard to the 2019 DFAT Report. Further, given the proximity of some of the paragraphs, for example [3.15], [3.16], [3.17], [3.18] on page 26 and [3.26] on page 27, from which some of that that material was drawn, and the paragraph, [3.23] also on page 27, which DXC19 complains was not considered, it cannot readily be inferred that the Authority did not consider [3.23] of the 2019 DFAT Report.
In any event, it is clear that the Authority identified the issue and considered the claim made that DXC19 could not return to his home area, and in particular Parachinar and Kurram: it plainly identified, set out and understood DXC19’s claims to that effect. The Authority Decision is otherwise comprehensive and drew conclusions concerning the claims made by DXC19 in relation to returning to his home area, both for refugee and complementary protection purposes. Those conclusions were open to be made on the evidence, and it cannot be said that no other rational or logical decision-maker could not have arrived at, or drawn, the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ.
The fact that the Authority took a different view to that of the Delegate with respect to the risk of harm in Kurram does not establish error in the Authority Decision, because the Delegate’s findings do not control the reasons or findings of the Authority: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494 (“BMB16”) at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J. As Besanko J observed in BMB16 at [38] subject to the other provisions in Pt 7AA, “a review under that Part involves a fresh consideration by the Authority of the decision” of the Delegate. Thus, there is no denial of natural justice in circumstances such as these where the issue was one which was live before the Delegate, for as the Federal Court observed in DBE16 at [59] per Barker J:
I accept the Minister’s submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue.
DBE16 has subsequently been followed by the Federal Court on several occasions in this respect: FMA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 456 at [77] per Kenny J; FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [42] per Griffiths J; CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 at [49] per Banks-Smith J.
The fact that the Authority only considered whether DXC19 would be at risk of harm in Kurram if he returned to Pakistan does not establish jurisdictional error in the Authority Decision. That is because the real chance of persecution must relate to all areas of Pakistan before DXC19 could be said to have a well-founded fear of persecution: s 5J(1)(c), or, put another way, the return to the receiving country that was contemplated was a return to any part which DXC19 could safely and legally access: FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [54] per White and Colvin JJ. In short, if it was safe for DXC19 to return to Kurram, as the Authority found it was: CB 310 at [36], that was all that was required to find that DXC19 could return to Pakistan.
It follows that grounds 5 and 6 are not made out and do not establish jurisdictional error in the Authority Decision.
GROUND 1
Ground 1 is as follows:
1.The decision. and the reasons for the decision, by the second respondent is not free of bias. or apprehended bias.
Particulars
1.1 Nemo judex in causa sua.
1.2The reviewer of the decision on behalf of the second respondent was “S Mansour.”
1.3The reviewer, for reasons unknown, departs significantly from the reasons for the decision of the first respondent.
1.4The manner in which the second respondent considers the relevant information, fails to consider relevant information. assess the credibility of the applicant and accepts it where the decision is justified and rejects it where it benefits the applicant gives rise to an apprehension of bias in the manner which the review is conducted.
1.5Where the reviewer commences his analysis of the applicant's application and the decision of the first respondent, in paragraph 14, the reviewer states that “I am satisfied that this is the area to which he would return.”
1.6 Threats received whilst studying
1.6.1The delegate accepts the applicants accounts receiving written threats to the shared apartment [CB 245]. The delegate doubts whether the threats came from Taliban or other extremist groups. The delegate further doubts that the threats indicated a “genuine intention to harm”.
1.6.2The reviewer comes to a different conclusion [CB 305] based on the fact that there was no evidence of threats to the applicant to have come to be realised, the reviewer concludes that the threats were embellished [CB 305 at [22]-[26]]]. Having found the applicant credible earlier, the reviewer, without basis, finds the applicant lacking credibility in relation to material claims the applicant makes in relation to events that cause him fear.
1.6.3This finding is more concerning because the reviewer in paragraph 20 accepts more serious conduct where the applicant is part of the convoy in 2011 which is fired upon and where eight people from the convoy were murdered and 45 passengers kidnapped.
1.7 Targeting of wealthy people for kidnapping
1.7.1The delegate notes from reporting in the media that in early 2012, the Taliban are targeting wealthy people for kidnapping throughout Pakistan. However, the delegate does not find any credible sources that “Shia students in Peshawar at this time were specifically being targeted.” [CB 305 at [246].
1.7.2Ultimately, the delegate states that because they did not progress to an actual attack. “I consider these threats to have been in the nature of discrimination and harassment, rather than genuine threats of harm.” This conclusion was not open to the delegate on the evidence, or lack thereof on the contrary.
1.7.3The reviewer affirms the finding of the delegate in paragraph 22. However, the reviewer, using specific language. states that “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,” failing to identify that these are the only Shia people that were kidnapped. Whilst it is true that the reports cited indicated that primarily it was such type of people who were targeted, there were also other instances where others were targeted.
1.7.4A clear example before the reviewer, which the reviewer fails to identify, is the kidnapping of 45 individuals from the convoy in which the applicant was traveling which the delegate accepts as true.
1.8 Applicant part of convoy that was attacked by the Taliban
1.8.1The delegate accepts that the applicant was part of the convoy that was bombed. However, states that “I consider the applicant was not individually targeted in this attack on the convoy, rather he was a victim of the generalised violence in this area at the time.” This conclusion was not open to the delegate on the evidence.
1.8.2The reviewer accepts the applicant’s account of event but fails to recognise is as a direct act of violence targeting Turi Shia’s, which the applicant is accepted to be a part of, where the applicant is a victim of such serious harm perpetrated upon them as a group, which he managed to escape as an individual.
1.9The applicant faces a real a real chance of serious harm in Kurram District
1.9.1The delegate accepts that the applicant, if returned to his town in Parachinar, faces more than a remote change of serious harm on account of his Turi ethnicity and Shia religion.
1.9.2The reviewer, concerningly and in contradiction to DFAT CIR 2019, concludes that the applicant can return to Kurram District.
1.9.3Kurram District is a district located in the Khyber Pakhtunkhwa province. The capital of that province is Peshawar. Parachinar is a small town/village located in Kurram District.
1.9.4DFAT CIR 2019 relied upon by the reviewer to support his conclusions about the improved security situation on pays regard to parts of the CIR which supports his conclusions and disregards, or fails to give due regard to, parts of the CIR which do not support his conclusions.
1.9.5DFAT CIR 2019 in paragraph 3.23 states that “Relocation to Khyber Pakhtunkhwa is not viable, as Turis are discriminated against, face security threats, do not have adequate access to services, and would likely be forced to sell assets.”
1.9.6 Yet, the reviewer in paragraph 27 of his decision states that:
“While the delegate ultimately concluded that the applicant had a well-founded fear of persecution in Kurram, I have come to a different conclusion. I have had regard to the applicant's oral and written evidence in support of his claim that he faces a real chance of persecution in Kurram - an issue that was discussed in detail at the primary stage. I accept that Turis in Kurram faced a period of significant violence from 2007 until 2014. Country information however indicates that the situation has changed and continues to improve.”
l.9.7That conclusion is based on, for the lack of a better term, “cherry picked” information from the CIR.
l.9.8 The relevant CIR paragraph. paragraph 3.26. states that:
“DFAT notes a trend of decreased reports of attacks against Turis in 2018 due to the improved security situation in Parachinar and Kurram Agency. However, while this trend is likely to continue in 2019, attacks and violence against Turis can, and may still occur. As such. DFAT assesses Turis in Kurram Agency still face a moderate risk of sectarian violence from militant groups, because of their Shi 'a faith. Turis in other parts of the country tend to face a level of risk similar to other non-Hazara Shi’a groups.”
1.9.9The CIR also states that while number of attacks decreased. “deaths from terrorist attacks in Kurram Agency significantly increased in 2017,” killing a total of 120 people [DFAT CIR 2019 at [3.15]].
1.9.10That, “[D]espite official disruption efforts. the TPP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018.” [DFAT CIR 2019 at [2.84]].
1.9.11That, “[The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks.” [DFAT CIR 2019 at [2.69]]
1.9.12And that, “discrimination and violence towards Shi 'a tribes, particularly Turis, remains significant in Kurram Agencv due to state concerns regarding Iranian influence (see Shi'a) and greater presence of the Taliban and Al Qaeda.” [DFAT CIR 2019 at [3.19]].
1.10The applicant faces a real chance of serious harm in Khyber Pakhtunkhwa
1.10.1The delegate concludes that the applicant is unable to relocate to Khyber Pakhtunkhwa because of real chance of serious harm on account of the applicant’s ethnicity and/or religion.
1.10.2The delegate further concludes that the applicant does not meet the definition of a refugee because the delegate is “satisfied that there is not a real chance the applicant would suffer serious physical harm, on account of his Turi ethnicity and his Shia religion, in Lahore or Islamabad.”
1.10.3For reasons stated in abovementioned paragraphs, the reviewer concludes in paragraph 36 that “Given the overall evidence including improving broader security situation and declining level of sectarian violence across Pakistan ... I am not satisfied that he would, in reasonable foreseeable future, face a real chance of any harm in Parachinar, Kurram Agency, including during road travels and when traveling between Kurram and Islamabad.”
1.10.4That conclusion stands in stark contrast to the DFAT CIR 2019 based upon which the reviewer reaches that conclusion. The CIR states that: [DFAT COR 2019 at [3.110]]
3.110 Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. According to the SATP, two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in the Shi 'a-majority city of Parachinar.
3.111 DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA.”
1.10.5ln those circumstances, a fair-minded lay observer might reasonably apprehend that the reviewer might not bring an impartial mind to the resolution of the question to be decided by concluding that the applicant can return to the province DFAT clearly concludes in not viable for a person of the applicant's ethnicity and religion to return to after escaping it.
DXC19’s submissions on ground 1
DXC19’s submissions on ground 1 are as follows:
(a)ground 1 is pleaded on the basis of apprehension of bias;
(b)the test for apprehended bias: see 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 confirmed by the High Court affirming in its decision is Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 74 ALJR 1380; (2000) 174 ALR 655) is 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 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) 115 ALD 303 (“Jia Legeng”) per 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] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Even so, as was explained in Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 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 J;
(g)section 473DA provides an exhaustive statement in relation to the fair hearing rule;
(h)based on the particulars as pleaded in ground 1 of the Amended Judicial Review Application DXC19 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 unwarranted assumptions which are not based on any evidence or facts; and
(v)disregards DFAT advice that individuals with DXC19’s profile, namely, Shia Turis, cannot be relocated to the DXC19’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 significantly from the Delegate’s Decision, and on the same evidence before them, raises the question of apprehended bias.
Minister’s submissions
The Minister’s submissions on ground 1 are as follows:
(a)ground 1 alleges that the Authority Decision “is not free of bias, or was affected by apprehended bias”;
(b)the Minister agrees with DXC19 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; and
(c)DXC19 submits that the question of apprehended bias arises because the Authority Decision departs “significantly” from the Delegate’s Decision despite having the same evidence before it, but this submission fails at a factual and a legal level.
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 the DXC19’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)DXC19 was of Pashtun ethnicity, a member of the Turi tribe, a Shia Muslim, and had lived most of his life in Kurram: CB 244-245 and 303 at [14];
(ii)DXC19 witnessed bombing incidents in 2007 and 2008 while he was attending school and living in Parachinar: CB 245 and 303-304 at [18];
(iii)while living in Peshawar and engaging in tertiary study, DXC19 lived with other Shia Muslims in a flat which had been inhabited by Shias for some time: CB 245-246 and 304 at [19]; and
(iv)while travelling back to Parachinar in March 2011 DXC19 was in a convoy which was attacked by extremists, although DXC19 himself was not personally targeted: CB 246 and 304 at [20];
(c)this is not to say that the Delegate and the Authority made identical factual findings;
(d)relevantly, the Delegate and Authority had different bases for finding that DXC19 did not receive threats from extremist groups while he was undertaking tertiary education in Peshawar, while living with other Shia Muslims in a flat which had long been inhabited by Shia Muslims;
(e)the Delegate found that while DXC19 may have received some threats, they were not from extremist groups such as the Taliban because DXC19 had no greater profile than as a student, and the Delegate could not find “credible sources to support claims that Shia students in Peshawar at this time were being specifically targeted for kidnapping or harm”: CB 246;
(f)on the other hand, the Authority did not accept that DXC19 had received the threats in Peshawar at all: CB 305-306 at [24]-[26], because:
(i)DXC19 had no profile beyond that of a Turi Shia student from Parachinar to draw him to the attention of the authorities (noting particularly that the last alleged warning specifically named he and his cousin, and the threats were also sent to his personal mobile phone);
(ii)DXC19 would not have been identified and threatened for an extended period without any of those threats coming to fruition, in light of evidence that the extremist groups active in the area carried out extremely violent activities during that period; and
(iii)DXC19 neither currently faced adverse interest from extremist groups, nor faced a real chance of such interests in the reasonably foreseeable future, particularly as he has not claimed that he would resume studies in Pakistan: CB 306 at [26];
(g)further, whereas the Delegate accepted that DXC19 would face a real risk of harm if he relocated to Kurram, the Authority found that DXC19 would not face a real risk of harm in Kurram: CB 306 at [37]. This was because:
(i)seven years had passed since DXC19 had left Pakistan and even when he was in Pakistan he had no significant profile: CB 306 at [27]; and
(ii)on the country information before it, which the Authority considered in great detail: CB 306-310 at [28]-[35], the Authority found that from 2007-2014 Turi Shias in Kurram had faced a period of significant violence, but the situation has changed and continues to improve: CB 306 at [27]; and
(h)on a fair reading of the Delegate’s Decision and the Authority Decision, their factual findings were not “significantly” different.
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, Gummow, Kirby and Hayne JJ. Here, DXC19 has submitted that the Authority’s significant departure from the Delegate’s reasons “raises the question of apprehended bias”. This is not a clear allegation of bias, and is inconsistent 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, DXC19’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) 86 ALJR 14; (2011) 282 ALR 685 at [67] per Gummow ACJ, Hayne, Crennan and Bell JJ; and
(d)DXC19 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 [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, in large part, upon what was said by the Authority in the Authority Decision as the basis for the alleged apprehended bias.
Particular 1.1 pleads the Latin brocard “nemo judex in causa sua”. There is, however, no allegation that the Authority was determining their 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) [2001] 1AC 61; [1998] 4 All ER 897; [1998] 3 WLR 1456.
Particular 1.2 comprising a sentence specifically naming the Authority member is immaterial to anything in the remainder of ground 1, or in grounds 2 to 6.
In relation to particular 1.3, for the reasons set out in the Minister’s Submissions, the factual findings as between the Delegate and the Authority are not significantly different. To the extent that they are different, that is simply a function of the Authority performing its proper task and considering the matter afresh.
The fact that the Authority took a different view to that of the Delegate with respect to the risk of harm in Kurram does not establish error in the Authority Decision, because, as set out at [51] above, the Delegate’s findings do not control the reasons or findings of the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J, and there is no denial of natural justice in circumstances such as these where the issue was one which was live before the Delegate: DBE16 at [59] per Barker J (and the cases which have followed it).
There is nothing in the different outcomes which is indicative of apprehended bias on the part of the Authority. The evidence establishes that the Authority undertook a detailed analysis of the evidence (including the country information), and on a fresh assessment of the evidence “overall”: CB 310 at [36] concluded that there was not a real chance of harm to DXC19 in Parachinar in Kurram or when undertaking any necessary travel. 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 merely because of the differing outcomes as between the Delegate and the Authority. Particular 1.3 of ground 1 is therefore not made out.
In relation to particular 1.4 it does not point to any particular aspects of the Authority Decision in relation to the assertions there made, and the matter is better dealt with by dealing with the other, and remaining, particulars of ground 1 which particularise, at some length, the assertions of apprehended bias.
At particular 1.5 DXC19 submits that the Authority’s finding at CB 303 at [14] that it was “satisfied that this is the area [Kurram] to which he [DXC19] would return” is somehow, in a manner not expressly stated, apprehended bias on the part of the Authority.
The Authority made the finding as part of its dealing with claims made by DXC19 as to his identity, nationality, ethnicity and religion, in the course of which it was necessary to identify where DXC19 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 DXC19 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, DXC19’s birth place (in Kurram), and that he had resided in a village some seven kilometres from Parachinar “for most of his life prior to his travels to Australia”, and that his fiancée remained in Parachinar: CB 303 at [14]. So not only was there a reason for the Authority to make the findings, 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 DXC19’s protection claims.
In arriving at its conclusion at CB 310 at [36] that “I am not satisfied that he [DXC19] 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 307 at [21], that the Authority
(i)at CB 307-308 at [31]:
(A)regarding the former FATA and Kurram, found the country information indicates that overall, the security conditions have also significantly improved in recent years, that 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, and that 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; and
(B)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”;
(ii)at CB 308 at [32] 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
(b)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 309 at [33];
(c)DXC19’s history, profile, and experiences, including:
(i)his nationality, ethnicity, religion and places of residence: CB 303 at [14] and [16];
(ii)his proximity to, and witnessing of, a suicide explosion in 2007, and proximity to a bomb explosion in 2008, seemingly in Parachinar: CB 303-304 at [18];
(iii)the attack in March 2011 by the Taliban on a “government/paramilitary escorted convoy” of minibuses which was travelling from Peshawar to Parachinar, and in one of which DXC19 was travelling, and in which “most passengers were said to be Shia”: CB 304 at [20];
(iv)DXC19’s period as a student in Peshawar, and his return to the Kurram thereafter: CB 303-304 at [18], 304 at [19] and 304-306 at [21]-[26]; and
(v)that he would be returning to Pakistan as a returnee from a Western country: CB 310 at [35].
The matters to which the Authority had regard in relation to its finding that “I am not satisfied that he [DXC19] would, in the reasonably foreseeable future, face a real chance of any harm in Kurram District” as set out in the two preceding paragraphs were all matters to which it was appropriate to have regard in determining that issue and are not indicative of any apprehended bias on the part of the Authority. It follows that there is no basis for an allegation of apprehended bias on the basis set out in particular 1.5.
Particular 1.6 does not raise an issue of apprehended basis, but rather an assertion that the Authority erred by not accepting as credible DXC19’s assertions about threats when he was a student in Peshawar, and particularly so when the Authority had accepted as credible DXC19’s account of the attack on the minibus convoy travelling between Peshawar and Parachinar. For reasons set out at [16]-[17] and [20] above there was nothing illogical in the Authority determining that the alleged threats when he was a student were not made, and nor was there an unwarrantable assumption made, because on the evidence there was an evident or intelligible justification for the Authority’s conclusion that the threats were not made. Further, there is no logical nexus between the two incidents which would require that DXC19 being credible on one incident must mean that DXC19 was credible on the other, or vice versa. The matter was one for the Authority, as the finder of fact, to, as it did, assess having regard to the evidence. Also, for reasons set out at [51] above, the fact that the Delegate came to a different factual finding as to the making and source of the threats is immaterial, and, in any event the different factual findings are not evidence of apprehended bias. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.6.
Particular 1.7 does not raise an issue of apprehended basis. Rather, particular 1.7 appears to assert that both the Delegate and the Authority erred in finding that Shia students were not targets for kidnapping, and that the Authority erred when it found that it was only certain types of persons (and not students such as DXC19) who were targets for kidnapping. Essentially, under the guise of apprehended bias, particular 1.7 thus seeks impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, for reasons set out at [16]-[17] and [20] above. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.7.
Particular 1.8 also does not raise an issue of apprehended bias. It criticises the Delegate’s finding that the attack on the minibus convoy was generalised violence, and the Authority for failing to recognise that the attack on the minibus convoy was “a direct act of violence targeting Turi Shia’s” (particular 1.8.2). This is no more than vehement disagreement with the Authority’s factual findings, and once again the seeking of impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, under the guise of apprehended bias. In the circumstances, there is no basis for an allegation of apprehended bias on the basis set out in particular 1.8.
Particulars 1.9 and 1.10 take issue with the assessment by the Authority that there was not a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa. They set out the Delegate’s finding that there was such a risk, the Authority’s finding to the contrary, and then juxtapose material from the 2019 DFAT Report seemingly in contradiction to the Authority’s findings. These particulars both re-runs and expands upon ground 5. But for the same reasons as are set out at [44]-[50] and [53] above the contention underlying the particulars, that the Authority erred in failing to find that DXC19 would suffer a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa, is not made out. Once again the particulars evince vehement disagreement with the Authority’s factual findings, and under the guise of apprehended bias, once again seek impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
As set out above: see [51] above, the fact that the Authority differed in its ultimate finding from the Delegate as to the risk of harm in Kurram and in Khyber Pakhtunkhwa 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). Nor is it indicative of apprehended bias. The Authority undertook a detailed and fresh analysis of the evidence (including the country information) and an assessment of the evidence “overall”: CB 310 at [36], and concluded that there was not a risk of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa. 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 as to whether there was a real chance of serious harm to DXC19 if he were to return to Kurram or Khyber Pakhtunkhwa.
It follows that particulars 1.9 and 1.10 provide no basis for an allegation of apprehended bias.
For the sake of completeness the Court notes that insofar as ground 1 challenges or asserts error on the part of the Delegate that challenges to the Delegate’s findings are not matters within the jurisdiction of this Court on an application for judicial review: ss 474 and 476.
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 undertook 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 DXC19 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 eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 April 2025
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